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HomeMy WebLinkAboutAgenda Packet 2004/03/23 CITY COUNCIL AGENDA March 23, 2004 6:00 p.m. Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista ~~t?- ~ r~~__~~. - - - - ~~~~ CllY OF CHUIA VISfA City Council City ~lanager Patty Davis David D. Rowlands, Jr. John McCann City Attorney Jerry R. Rindone Ann Moore Mary Salas City Clerk Stephen C. Padilla, Mayor Susan Bigelow ********** The City Council meets regularly on the first calendar Tuesday at 4:00 p.m. and on the second, third and fourth calendar Tuesdays at 6:00 p.m. Regular meetings may be viewed at 7:00 p.m. on Wednesdays on Cox Cable Channel 24 or Chula Vista Cable Channel 68. Agendas are available on the City's website at: www.chulavistaca.gov ********** - ."-- - - . . -- I declare under penalty of perjury that I am employed by the City of Chula Vista in the Office of the City Clerk and that I posted this ~ment on the bulletin board according to AGEN n Act requirlmentl. March 23, 2004 ~~ j1t; 6:00P~ CALL TO ORDER Dated 'jq, 0 l( Signed , ..t4f Il-NI . ROLL CALL: Councilmembers Davis, McCann, Rindone, Salas, and Mayor Padilla PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE CONSENT CALENDAR (Items I through 2) The Council will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting Items pulled from the Consent Calendar will be discussed after Action Items. 1. APPROVAL OF MINUTES of March 2, 2004. Staff recommendation: Council approve the minutes. 2. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $686,400,000 AGGREGATE PRINCIPAL AMOUNT OF INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS OF THE CITY OF CHULA VISTA TO REFUND CERTAIN BONDS ISSUED BY THE CITY OF CHULA VISTA AND THE CITY OF SAN DIEGO TO FINANCE COSTS OF CERTAIN ELECTRIC FACILITIES FOR SAN DIEGO GAS & ELECTRIC COMPANY, AUTHORIZING THE EXECUTION AND DELIVERY OF AN INDENTURE OF TRUST AND A LOAN AGREEMENT PROVIDING FOR THE ISSUANCE OF THE BONDS AND THE REPAYMENT OF THE LOAN PROCEEDS THEREOF, RESPECTIVELY, AND RELATED MATTERS The City authorized, pursuant to its Charter and Chapter 3.48 of the Municipal Code, assistance in the financing and refinancing utility facilities. The Municipal Code provides that the City may issue revenue bonds payable exclusively ITom the revenues derived from such utility facilities in order to provide funds to finance or refinance such facilities. (Director of Finance) Staff recommendation: Council adopt the resolution. ORAL COMMUNICATIONS Persons speaking during Oral Communications may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for future discussion or refer the matter to staff. Comments are limited to three minutes. PUBLIC HEARINGS The following items have been advertised as public hearings as required by law. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 3. CONSIDERATION OF ADOPTION OF AN ORDINANCE AMENDING SECTION 19.58.022 OF THE CHULA VISTA MUNICIPAL CODE, REGULATING ACCESSORY SECOND DWELLING UNITS, TO GIVE THE DIRECTOR OF PLANNING AND BUILDING THE AUTHORITY TO WAIVE THE GARAGE PARKING REQUIREMENT FOR NONCONFORMING RESID ENTIAL USES SEEKING TO ADD AN ACCESSORY SECOND DWELLING UNIT Adoption of the ordinance amends the regulations for accessory second dwelling units to allow the Director of Planning and Building to waive the two-car garage requirement for certain properties when it would detract from the character of the neighborhood. (Director of Planning and Building) Staff recommendation: Council conduct the public hearing and place the following ordinance on first reading: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA MODIFYING SECTION 19.58.022 OF THE CHULA VISTA MUNICIPAL CODE 4. CONSIDERATION OF AN AMENDMENT TO ORDINANCE 2579, RELATING TO INTERIM PRE-SR 125 DEVELOPMENT IMPACT FEE (Continued from March 16, 2004) In 1994, the Interim Pre-SR 125 Development Impact Fee (SR-125 DIF) was established to ensure that sufficient funds would be available to construct a contingent north-south transportation corridor should the SR-125 freeway not be constructed by CalTrans or not be constructed in time to serve impending development. With financing now secured, environmental constraints addressed, and construction underway for SR-125, City staff recommends that the fee be tolled. Staff also recommends that the Ordinance be amended to allow transportation capacity enhancement improvements to be funded from fees already collected for SR-125 DIF. (Director of General Services, City Engineer) Staff recommendation: Council continue the public hearing to April 6, 2004. Page 2 - Council Agenda March 23, 2004 ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 5. CITY MANAGER'S REPORTS 6. MAYOR'S REPORTS 7. COUNCIL COMMENTS CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Attorney's office in accordance with the Ralph M Brown Act (Government Code 54957.7). 8. CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: San Diego Gas & Electric - Gas and Electricity Franchise (pertaining to public rights-of-way throughout the City of Chula Vista) Agency negotiators: David Rowlands, Jr., Sid Morris, Michael Meacham, Glen Googins Negotiating Parties: City of Chula Vista and San Diego Gas & Electric (various representatives) Under Negotiation: Price and terms of franchise conveyance ADJOURNMENT to an Adjourned Regular Meeting on March 25, 2004 at 4:00 p.m. at the Police Department Headquarters Community Room, thence to an Adjourned Regular Meeting with the Board of Port Commissioners on March 30, 2004, at 4:00 p.m., in the Council Chambers, and thence to the Regular Meeting of April 6, 2004, at 4:00 p.m. in the Council Chambers. Page 3 - Council Agenda March 23, 2004 COUNCIL AGENDA STATEMENT Item Meeting Date 3/23/04 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $686,400,000 AGGREGATE PRINCIPAL AMOUNT OF INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS OF THE CITY OF CHULA VISTA TO REFUND CERTAIN BONDS ISSUED BY THE CITY OF CHULA VISTA AND THE CITY OF SAN DIEGO TO FINANCE COSTS OF CERTAIN GAS AND ELECTRIC FACILITIES FOR SAN DIEGO GAS & ELECTRIC COMPANY, AUTHORIZING THE EXECUTION AND DELIVERY OF AN INDENTURE OF TRUST AND A LOAN AGREEMENT PROVIDING FOR THE ISSUANCE OF THE BONDS AND THE REPAYMENT OF THE LOAN OF THE PROCEEDS THEREOF, RESPECTIVELY, AND RELATED MATTERS SUBMITTED BY: Director of Financ~ REVIEWED BY: City Manage~ í)t1 (4/5ths Vote: Yes -NolL) In April 1996, the City Council adopted Ordinance 2669 amending Chapter 3.48 of the Chula Vista Municipal Code to permit the refinancing of regional utility projects upon a finding of City benefit. Council also passed a resolution setting an issuance fee at 25 basis points (1/4 of 1 percent) of the principal amount, payable at the time of issue, plus costs. On September 11, 1998, the City of Chula Vista and San Diego Gas & Electric (SDG&E) entered into a Letter of Agreement granting Chula Vista exclusive rights to be the issuer of SDG&E's Industrial Development Revenue Bonds (lOBs) on the following conditions: a) the processing of SDG&E's applications for lOBs is completed in a timely manner; and b) Chula Vista's issuance charge is no more than 25 basis points (in addition to Chula Vista's administrative costs related to bond issuance); and c) Chula Vista charges no annual fee or costs; and d) Chula Vista's Bond Counsel indicates that Chula Vista's involvement with respect to each issue of lOBs is permissible under the then current tax laws ;2-1 Page 2, Item ~ Meeting Date 3/23/04 and that it is not necessary to obtain a Superior Court judgment in a validation action. SOG&E has requested that the City refund previously issued series of lOBs. This Bond Resolution authorizes the issuance and sale of up to $686.4 million of lOBs to refund lOBs previously issued by the City of Chula Vista and the City of San Diego to finance or refinance certain costs of gas and electric facilities for SOG&E. The Chula Vista City Council has the ability to issue tax-exempt bonds for large industrial/manufacturing projects. lOBs are tax-exempt bonds, which can raise funds for manufacturing businesses or energy development projects. RECOMMENDATION: Adopt the resolution, which authorizes the issuance and sale from time to time of up to $686.4 million refunding lOBs to refinance a like principal amount of outstanding lOBs. BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable. DISCUSSION: The Resolution authorizes the issuance of up to $686,400,000 of refunding lOBs in order to refund all or a portion of the outstanding lOBs issued by the City of Ghula Vista and the City of San Diego for the benefit of SOG&E and its ratepayers in order to generate interest savings. The lOBs will be sold at negotiated sales at such times as SOG&E requests, which will depend on the interest rate market being favorable. The Resolution would remain in effect for approximately 3 years. Specifically, tonight's action: . Finds that the refunding of the outstanding lOBs that financed or refinanced gas and electric generation, transmission and distribution facilities throughout SOG&E's service territory shall directly benefit the citizens of Chula Vista. . Authorizes refunding lOBs to be issued in one or more series in an aggregate principal amount not to exceed $686,400,000. Approves the draft forms of Indenture of Trust, Preliminary Official Statement, Bond Purchase Agreement, Loan Agreement and related documents providing for the terms for issuance of the lOBs, use of lOB proceeds and the repayment thereof by SOG&E, and authorizes the Mayor and staff to execute all necessary bond documents in final forms approved by the City Attorney. FindinQ of Local Public Benefit Pursuant to the Chula Vista Municipal Code ("CVMC") Chapter 3.48 the City is authorized to issue I OBs for basic utilities to reduce the cost of providing such service W" Page 3, Item ;¿ Meeting Date 3/23/04 and thereby reduce the rates of industrial, commercial and residential utility customers within the City. CVMC Section 3.48.10.0 specifically provides as follows: Encouraging industrial and commercial development and the provision of basic utilities pursuant to this chapter (1) will promote health, safety and welfare of the city, including those public interests enumerated above, and will improve the social, moral, economic and physical condition of the community thereby, and (2) constitutes a municipal affair of the city, a valid exercise of the police powers of the city, and a public purpose in which the city has a peculiar and unique interest. The lOBs to be issued to refund the lOBs originally issued to finance gas and electric generation, transmission and distribution facilities throughout SOG&E's service territory, including Chula Vista, shall directly benefit the citizens of the City by reducing the costs of providing utility service, thereby reducing a cost component in the rates to be paid by industrial, commercial and residential utility customers within the City. This would include rates paid by the City itself for its energy needs. Interest rate reductions are passed on to customers through periodic costs of capital proceedings conducted by the California Public Utilities Commission. These proceedings ensure that a reduction to SOG&E's average debt cost is translated dollar for dollar into reduction to the Company's revenue requirements, which determine the rates charged to customers. A list of the types of facilities underlying the financing is attached to this report as Exhibit A. Summary of Bond Documents The draft transaction documents are substantially the same as the transaction documents used by the City as issuer for previous lOB issues of this type. Copies of the transaction documents are attached to this report as Exhibit B. The Indenture of Trust is between the City of Chula Vista and the Trustee (U.S. Bank) and provides that the Trustee will keep records of the lOBs issued, administer the lOB proceeds in accordance with the Loan Agreement, receive loan repayments from SOG&E, and make the required payments to bondholders. The Official Statement is a disclosure document that provides potential buyers of the lOBs the information regarding how the proceeds will be used, what the source of the repayment will be, a legal opinion of tax exemption, and a description of the legal documents supporting the financial structure. Page 4, Item ~ Meeting Date 3/23/04 The Bond Purchase Aqreement is between the City of Chula Vista, SOG&E and the underwriting team. By this agreement the City agrees to sell, and the Underwriters agree to purchase, all of the lOBs issued at an agreed upon price and yield. The Loan AQreement is between the City of Chula Vista and SOG&E. It provides that the City will loan the proceeds of the lOBs to SOG&E to repay the loans with respect to the lOBs previously issued by the City of Chula Vista and the City of San Diego and that the loan repayment amounts by SOG&E will be sufficient to pay the principal and interest on the new lOBs issued. The Loan Agreement also establishes the City's compensation as the issuer, and includes SOG&E's agreement to indemnify the City against most risks arising from its role as issuer of the lOBs. Bond Counsel and Special Counsel The firm of Orrick, Herrington & Sutcliffe, LLP is bond counsel for the City as issuer in connection with the issuance of the new lOBs. The bond counsel was selected based on a longstanding involvement in SOG&E's prior lOB issuances. The firm of Jones Hall was selected as special counsel to review transaction documents and to prepare the City's required legal opinion. Jones Hall was selected to represent the City of Chula Vista's interests based on its participation in previous lOBs issued and/or refunded by the City of Chula Vista. SOG&E pays for all counsel, financial advisors and bond issuing costs directly. Except for special legal counsel representing City interests, SOG&E selects and recommends for Chula Vista approval all outside firms that make up the financing team. Bond Counsel has advised the City and SOG&E that (a) Chula Vista's involvement with respect to each issue or refinancing is permissible under applicable laws, (b) a Superior Court validation judgment confirmed the City's authority to issue lOBs for this purpose, and (c) no additional Superior Court validation is required for the proposed refinancings. Leqal and Financial Risks In General The City will not be obligated to pay the principal or interest on the lOBs, or to discharge any other financial liability in connection with the proposed refundings, except from and to the extent of revenues received from SOG&E or from any third- party credit enhancer (for example, any pond insurer). This lOB issuance does not directly impact the City's bonding capacity because there is no governmental commitment to pay debt service on the lOBs in the event loan payments are not timely made by SOG&E. In case of default, the City's credit rating should not be affected. The lOBs are treated by the investors as conduit financing of the City, and payable from the limited revenues received under the Loan Agreement. This is similar to the Page 5, Item :¿ Meeting Date 3/23/04 issuance of Special Tax Bonds, where investors look only to the Special Tax Revenues in a Community Facilities District to pay the bonds and not to the City to make up shortfalls. Specific Risks and Responsibilities of the City of Chula Vista as Conduit Issuer of the Bonds 1. The lOBs are Limited Obliqations. The lOBs are limited obligations of the City payable from revenues of the City received pursuant to the Loan Agreement. The City ultimately is responsible for collection of SOG&E payments under the Loan Agreement and remittance of these payments to bondholders. This obligation is mitigated by the fact that the Bond Trustee will agree to perform these functions on behalf of the City. 2. Tax Compliance Functions. The City and SOG&E each covenant to comply with various sections of the Internal Revenue Code in connection with the lOBs, regarding rebate payments. The City and SOG&E agree to undertake compliance with certain provisions of the Internal Revenue Code and Treasury Regulations with respect to the lOBs. This may include keeping detailed records with regard to certain types of investments, performing rebate analyses as necessary, making determinations with regard to investment contracts, and filing or causing to be filed certain reports with the IRS. As necessary the City can hire special counsel to assist with these functions and receive reimbursement for the costs from SOG&E. 3. Representations and Warranties. In connection with its tax covenants, the City makes various representations regarding the legal validity of its existence, its authority to issue the lOBs, restrictions on the use of lOB proceeds and replacement proceeds, as well as representing that the lOBs will not be used as an abusive arbitrage device. Most of the risks created by these statements and mitigated by reliance on opinions of bond counsel and SOG&E indemnities. Further, because the proposed lOBs will be refunding bonds (as opposed to "new money" bonds), the obligation to track the use of proceeds and arbitrage are not significant risk factors. This is because tax-exempt refunding bond proceeds must be used within 90 days for the sole purpose of refunding outstanding lOBs. 4. Administrative Functions. Amendments to the Indenture, the Loan Agreement and various other documents associated with the lOBs generally require the City's approval. In addition, in consultation with SOG&E, the City may determine whether the lOBs are to be held in book-entry or certificated form, and may execute new and/or replacement bond certificates upon registration, transfer, mutilation, destruction, theft or loss of the original I OB bond certificates. Again, the City can hire special counselor other consultants to assist with these functions and receive reimbursement for the costs from SOG&E. ø' Page 6, Item 2.- Meeting Date 3/23/04 5. LitiQation Risk. If there is litigation in connection with the lOBs, or if the IRS should audit the tax-exempt status of the lOBs, the City could incur legal and other consultant expenses. Although the City is indemnified by the SOG&E for such expenses, such indemnification provisions are subject to interpretation by a court. Further, indemnification by SDG&E may not be financially feasible if SOG&E at that time is insolvent. With respect to lOBs the City has already issued or refunded for SOG&E, this risk already exists. Reducing the cost of this debt through the refunding process somewhat reduces the risk of a SOG&E default. 6. Reputation Risk. By attaching its name to the marketing and issuance of the lOBs, the City implicitly warrants throughout the period that the 108s are outstanding that the lOBs have been validly issued and that interest on the lOBs is tax-exempt. The City may suffer adverse reputational consequences should this not be true, or if the SOG&E should default on its obligations in connection with the lOBs. On the other hand, based on discussions with a trusted financial advisor, given the limited obligation nature of the lOBs, a default is not likely to have a material impact on the City's ability to issue traditional debt. FISCAL IMP ACT: Given current market conditions and SOG&E's debt portfolio, SOG&E believes that it can refinance approximately $194 million of its outstanding lOBs in 2004. This would result in: Annualized customer rate reductions across SOG&E's $4.5 million Service territory, including the City of Chula Vista Annualized City of Chula Vista customer rate reductions $ 221,860 (about 4.9% of total) City of Chula Vista revenues: up-front issuance fees $ 485,000 (0.25% of principal) The above assumes current tax-exempt bond market conditions remain in effect. SOG&E's decision to refinance, as well as the savings realized, will ultimately be determined by market conditions at the time of the transactions. SOG&E will reimburse the City for any staff costs and administrative expenses associated with this process whether or not Chula Vista ultimately issues the Bonds. SOG&E also pays all legal counsel, financial advisors and bond issuing costs directly, including counsel representing City of Chula Vista interests. Per the 25 basis points set by Council, if the entire $686.4 million of lOBs are issued, the fee paid to the City Page 7, Item ~ Meeting Date 3/23/04 would be $1,716,000. Within the next 90 days, it is anticipated that SDG&E will refund approximately $194 million in lOBs, which will generate $485,000 in issuance fees for the City. This revenue would be deposited into the City's General Fund. Thereafter, additional lOB issues are likely, but not guaranteed, and will occur at the discretion of SDG&E. Attachments Resolution Description of Financial Facilities (Exhibit A) Bond Documents (Exhibit B) . Indenture of Trust . Preliminary Official Statement . Bond Purchase Agreement . Loan Agreement ;(-7 RESOLUTION NO. - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $686,400,000 AGGREGATE PRINCIPAL AMOUNT OF INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS OF THE CITY OF CHULA VISTA TO REFUND CERTAIN BONDS ISSUED BY THE CITY OF CHULA VISTA AND THE CITY OF SAN DIEGO TO FINANCE COSTS OF CERTAIN GAS AND ELECTRIC FACILITIES FOR SAN DIEGO GAS & ELECTRIC COMPANY, AUTHORIZING THE EXECUTION AND DELIVERY OF AN IND ENTURE OF TRUST AND A LOAN AGREEMENT PROVIDING FOR THE ISSUANCE OF THE BONDS AND THE REP A YMENT OF THE LOAN OF THE PROCEEDS THEREO F, RESPECTIVELY, AND RELA TED MA TTERS WHEREAS, the City of Chula Vista (the "City") is authorized pursuant to its Charter and Chapter 3.48 of the Municipal Code of the City (the "Municipal Code") to assist in financing or refinancing utility facilities (located within and without the City); and WHEREAS, the Municipal Code provides that the City may issue revenue bonds payable exclusively from the revenues derived from such utility facilities in order to provide funds to finance or refinance such facilities; and WHEREAS, the Municipal Code provides that such revenue bonds shall be secured by a pledge of the revenues out of which such bonds shall be payable; and WHEREAS, pursuant to Ordinance No. 2669 adopted on April 16, 1996, the City has amended Chapter 3.48 of the Municipal Code to authorize the City to issue refunding revenue bonds to refund bonds previously issued by other issuers to finance utility facilities located within and without the City; and WHEREAS, the City of San Diego has previously issued its 1992 Series A, 1992 Series B, 1992 Series C, 1993 Series A, 1993 Series C, 1995 Series A and 1995 Series B Industrial Development Bonds (the "San Diego Prior Bonds") and loaned the proceeds thereof to San Diego Gas & Electric Company (the "Company") to finance certain gas transmission and distribution facilities and certain electricity generation, transmission and distribution facilities located within and without the City (collectively, the "San Diego Project"); and WHEREAS, the City has previously issued its 1992 Series A, 1992 Series B, 1992 Series C, 1992 Series D, 1996 Series A, 1996 Series B and 1997 Series A Industrial Development Bonds (the "Chula Vista Prior Bonds" and, together with the San Diego Prior Bonds, the "Prior Bonds") and loaned the proceeds thereof to the Company to finance certain electricity generation, transmission and distribution facilities located within and without the City (together with the San Diego Project, the "Projects"); and WHEREAS, pursuant to Sections 3.48.01O.C and D of the Municipal Code, the City has DOCSSFI:645019.11 ;;ì- found and determined that refinancing gas transmission and distribution systems and electricity generation, transmission and distribution systems throughout the region yields various benefits for the City and its residents; and WHEREAS, the City has determined that it is desirable and in the public interest to assist the Company in refinancing the cost of the acquisition, construction and/or installation of the Projects through the issuance and sale of one or more series of refunding revenue bonds of the City, in an aggregate principal amount not to exceed $686,400,000 (the "Bonds"), and the loan of the proceeds thereof to the Company to repay the loans with respect to the Prior Bonds; and WHEREAS, the Bonds will be issued under and pursuant to, and are to be secured by, one or more Indentures of Trust in substantially the form presented at this meeting (the "Indenture"), by and between the City and a bank or trust company acceptable to the Company and the officers of the City executing the Indenture, as trustee (the "Trustee"); and WHEREAS, the proceeds of the Bonds will be loaned to the Company for the purposes described above pursuant to one or more Loan Agreements in substantially the form presented at this meeting (the "Loan Agreement"), by and between the City and the Company, in which the Company will covenant and agree to make payments to the Trustee (as assignee of the City's rights under the Loan Agreement) sufficient to pay the principal of, premium, if any, and interest on the Bonds when the same become due and payable, and to make such other payments and satisfy such other obligations as may be required therein and in the Municipal Code; and WHEREAS, the City has previously obtained a judgment of the San Diego County Superior Court determining the validity of Ordinance No. 2498 adopted by the City Council on April 7, 1992, enacting Chapter 3.48 of the Municipal Code; and WHEREAS, the City desires to approve the forms of the bond purchase agreement and the offering document to be executed and delivered in connection with the issuance and sale of the Bonds and a method for the selection of underwriters with respect to the issuance and sale of the Bonds (collectively, the "Underwriters"); NOW, THEREFORE, BE IT RESOLVED by the City Council of the City as follows: SECTION 1. The City Council hereby finds and determines that the foregoing recitals are true and correct. SECTION 2. The City Council hereby finds and determines that the Bonds to be issued to refinance existing gas transmission and distribution systems and electricity generation, transmission and distribution systems throughout the region will reduce the costs of providing such utility service within the City and thereby reduce the rates of providing such service to be paid by industrial, commercial and residential utility customers within the City, including rates paid by the City itself for City facilities; therefore, the issuance of the Bonds is in the public interest of the citizens of Chula Vista. SECTION 3. In order to refinance the costs of the Projects and refund the Prior Bonds, the Bonds are hereby authorized to be issued in one or more series in an aggregate principal amount not to exceed $686,400,000 pursuant to one or more Indentures in substantially the form DOCSSF1:645019.11 2 presented at this meeting and containing substantially the terms and provisions set forth therein; provided that this Resolution only authorizes Bonds to be issued prior to [March 1, 2007]. The Mayor and the City Clerk are hereby authorized and directed to execute, attest, seal and deliver the Indenture in substantially such form with such additions or changes in said form as such officers may recommend or approve upon consultation with the City Attorney and Orrick Herrington & Sutcliffe LLP, as bond counsel ("Bond Counsel"), the approval of such additions or changes to be evidenced conclusively by the execution and delivery of the Indenture. SECTION 4. The Mayor and the City Clerk are hereby authorized and directed to execute, attest, seal and deliver the Bonds as provided in the applicable Indenture, including by use of facsimile signatures on the Bonds. The Bonds may be issued in one or more series, shall be designated as City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company), and shall (i) be in such denominations; (ii) bear such date or dates; (iii) mature at such time or times; (iv) bear interest at such rate or rates, (v) be in such form and have such series designations; (vi) carry such registration privileges; (vii) be executed in such manner; (viii) be payable at such place or places within or without the State of California; (ix) be subject to such terms of redemption; and (x) be subject to such other terms and conditions, all as provided in the applicable Indenture, as finally executed. SECTION 5. The City shall lend the proceeds of the Bonds to the Company to refinance all or a portion of the cost of the Projects and refund the Prior Bonds pursuant to one or more Loan Agreements in substantially the form presented at this meeting, containing substantially the terms and provisions (including repayment provisions) set forth therein. The Mayor and the City Clerk are hereby authorized and directed to execute, attest, seal and deliver the applicable Loan Agreement in substantially such form with such additions or changes in said form as such officers may recommend or approve upon consultation with the City Attorney and Bond Counsel, the approval of such additions or changes to be evidenced conclusively by the execution and delivery of the applicable Loan Agreement. SECTION 6. The City shall execute one or more bond purchase agreements (the "Bond Purchase Agreement"), in substantially the form presented at this meeting (including only such language as shall apply to Bonds with initial interest rate period or periods the same as the initial interest period or periods for Bonds covered by that Bond Purchase Agreement), by and among the City and one or more Underwriters recommended by the Company and approved by the Mayor, the City Clerk, the Director of Finance, or the designee of any of the above. The Mayor, the City Clerk and the Director of Finance, or the designee of any of the above, are hereby authorized and directed to execute, attest, seal and deliver the Bond Purchase Agreement in substantially such form with such additions or changes in said form as such officers may recommend or approve upon consultation with the City Attorney and Bond Counsel, and the Underwriters and their counsel, the approval of such additions or changes to be evidenced conclusively by the execution and delivery of the Bond Purchase Agreement. SECTION 7. The City shall distribute or cause to be distributed one or more Preliminary Official Statements (the "Preliminary Official Statement") describing the Bonds to potential purchasers of the Bonds, and shall thereafter distribute or cause to be distributed a final Official Statement (the "Official Statement") to potential purchasers of the Bonds. The Preliminary Official Statement shall substantially conform to the form presented at this meeting, provided DOCSSF1:645019.11 3 that the Mayor, the City Clerk and the Director of Finance, or the designee of any of the above, are hereby authorized and directed to (i) modify the Preliminary Official Statement to reflect the applicable initial terms and interest rate mode(s) of the Bonds, and (ii) execute, attest, seal and deliver the Official Statement with such additions or changes in said form as such officers may recommend or approve upon consultation with the City Attorney, Bond Counsel, and the Underwriters and their counsel, the approval of such additions or changes to be evidenced conclusively by the execution and delivery of the Official Statement. The Underwriters are hereby authorized and directed to cause to be supplied to prospective purchasers of the Bonds copies of the Preliminary Official Statements in substantially the form presented at this meeting, and modified as provided in this section, and thereafter to supply the purchasers of the Bonds with copies of the Official Statement, completed to include, among other things the interest rate or rates, and final sale information for the Bonds. The Mayor, the City Clerk and the Director of Finance, or the designee of any of the above, are hereby authorized and directed to execute a certificate confirming that the Preliminary Official Statement has been "deemed final" by the Authority for purposes of Securities and Exchange Commission Rule 15c2-12. SECTION 8. It is hereby found, determined and declared that the Bonds and interest and premium, if any, thereon shall never constitute a debt or liability or a pledge of the faith and credit of the City within the meaning of any constitutional or statutory provision or limitation and shall not directly or indirectly or contingently obligate the City to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment. The Bonds and interest and premium, if any, thereon shall be payable solely and only from the Revenues derived from, and to the extent of, the Loan Agreement, as such term is defined in the Indenture. SECTION 9. All actions heretofore taken by the officers and agents of the City with respect to the refinancing of the Projects and the authorization and issuance of the Bonds are hereby approved, confirmed and ratified, and the Mayor, the City Manager, the Director of Finance and the City Clerk, or any of them, or their duly authorized designees, are hereby authorized and directed to execute, attest, seal and deliver any and all documents, including but not limited to those described in the Indenture and the Loan Agreement, and do any and all things, deemed necessary to effect the issuance and delivery of the Bonds and the execution and delivery of the Loan Agreement and the Indenture and to carry out the intent and purpose of this resolution and otherwise necessary to carry out the refinancing of the Projects. Without limiting the generality of the foregoing, anyone of the Mayor, the City Manager, the Director of Finance or the City Clerk, acting singly, are each hereby authorized, for and on behalf of the City, to take all actions and to execute and deliver any and all documents, agreements and instruments such officer might deem necessary or appropriate, in consultation with the City Attorney and Bond Counsel, to obtain a municipal bond insurance policy with respect to the Bonds. SECTION 10. All consents, approvals, notices, orders, requests and other actions permitted or required by any of the documents authorized by this resolution, including without limitation any of the foregoing which may be necessary or desirable in connection with any default under or amendment of such documents, any transfer or other disposition of the Projects, any substitution of credit enhancement for the Bonds or any redemption of the Bonds, may be given or taken by the Director of Finance without further authorization by the City Council, and the Director of Finance is hereby authorized and directed to give any such action consent, DOCSSFI:645019.11 4 Ó<-II , , approval, notice, or request and to take any such action which such officer may deem necessary or desirable to further the purposes of this resolution and the refmancing of the Projects. SECTION 11. The provisions of this resolution are hereby declared to be severable and if any section, phrase or provision shall for any reason be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases and provisions. SECTION 12. All resolutions or parts thereof in conflict herewith, if any (of which none are known to the City) are hereby repealed to the extent of such conflict. DOCSSFI :645019.11 5 d . SECTION 13. This resolution shall become effective immediately. Approved as to fonn: Ann Moore Presented by: City Attorney '" PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this - day of -' 200_, by the following vote: AYES: Councilmembers: NA YES: Councilmembers: ABSENT: Councilmembers: ABSTAIN: Councilmembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, City Clerk DOCSSFI:645019.II 6 ~øw'l . , STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of the City of Chula Vista, California, do hereby certify that the foregoing Resolution No. - was duly passed approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the - day of -' 200_, An agenda of said meeting was posted at least 72 hours before the referenced meeting of the City at 276 Fourth Avenue, Chula Vista, California, 91910 in full compliance with the provisions of the Ralph M. Brown Act (California Government Code Sections 54950 et seq.) and Section 308 of the Charter of the City ofChula Vista. I have carefully compared the foregoing resolution of the City with the original minutes of the City meeting on file and of record in my office; the foregoing resolution is a full, true and correct copy of the original resolution adopted at said meeting and entered in the said minutes. The foregoing resolution has not been amended, modified or rescinded since the date of its adoption, and the same is now in full force and effect. Executed this - day of -' 200_. Susan Bigelow, City Clerk DOCSSF1:645019.11 7 THIS INDENTURE OF TRUST, made and entered into as of r 1, 200 -.J, by and between the CITY OF CHULA VISTA, a municipal corporation and charter city duly organized and existing under the laws and constitution of the State of California (herein called the "City"), and U.S. Bank, N.A., a national banking association organized and existing under the laws of the United States of America and being qualified to accept and administer the trusts hereby created (herein called the "Trustee"), WIT N E SSE T H: WHEREAS, the City has enacted Chapter 3.48 of the Chula Vista Municipal Code pursuant to Ordinance 1970, adopted on February 9, 1982, as amended from time to time thereafter (the "Law"), authorizing the City to issue its revenue bonds to provide funds for the furtherance and accomplishment of the purposes hereinafter set forth; and WHEREAS, San Diego Gas & Electric Company (the "Borrower") has duly applied to the City for financial assistance in the refinancing of the costs of acquisition, construction and installation of certain facilities for the generation, transmission and distribution of electric energy (herein called the "Project") by prepaying certain loans (collectively, the "Prior Loans") made to the Borrower with the proceeds of [The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1992 Series A, 1992 Series B, and 1992 Series C (the "SD 1992 Bonds"), The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1993 Series A and 1993 Series C (the "SD 1993 Bonds"), The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1995 Series A and 1995 Series B (the "SD 1995 Bonds"), The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1992 Series A, 1992 Series B, 1992 Series C and 1992 Series D (the "CV 1992 Bonds"), The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1996 Series A and 1996 Series B (the "CV 1996 Bonds"), and The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1997 Series A (the "CV 1997 Bonds" and, together with the SD 1992 Bonds, the SD 1993 Bonds, the SD 1995 Bonds, the CV 1992 Bonds and the CV 1996 Bonds, the "Prior Bonds")], resulting in the refunding of such Prior Bonds; and WHEREAS, the City, after due investigation and deliberation, has detennined that the Project constitutes a "project" as defined in the Law and that the Project and the refinancing thereof, and the resulting refunding of the Prior Bonds, will directly benefit the citizens of the City by substantially promoting one or more of the public interests recited in the Law, and has taken all necessary action approving such application and authorizing the issuance of its industrial development revenue bonds as provided herein (the "Bonds") in order to refinance the Project and refund the Prior Bonds; and WHEREAS, the City has duly entered into a loan agreement (the "Agreement") with the Borrower specifying the tenus and conditions of the loaning of the proceeds of the Bonds to the Borrower for such purposes and the repayment by the Borrower of such loan; and WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the tenus and conditions upon which the Bonds are to be issued and DOCSSFI :645021.14 I ;¿~ I ~- secured and to secure the payment of the principal thereof and of the interest and premium, if any, thereon, the City has authorized the execution and delivery of this Indenture; and WHEREAS, the Bonds are to be issued in the aggregate principal amount of $ and the Bonds are to be sold and delivered to provide proceeds, as a loan to the Borrower, to refinance the Project and refund the Prior Bonds; and WHEREAS, all Bonds issued under this Indenture will be secured by a pledge and assignment of the City's rights under the aforesaid Agreement and other security instruments; NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of, and the interest and premium, if any, on, all Bonds issued and outstanding under this Indenture, according to their tenor, and to secure the perfonnance and observance of all the covenants and conditions therein and herein set forth, and to declare the tenns and conditions upon and subject to which the Bonds are to be issued and received, and for and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the holders thereof, and for other valuable consideration, the receipt whereof is hereby acknowledged, the City covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective holders from time to time of the Bonds, as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. Any tenns not defined herein shall have the meanings as set forth in the Multi-Mode Annex attached hereto. Unless the context otherwise requires, the tenns defined in this Section 1.01 shall, for all purposes of this Indenture and of the Agreement and of any supplemental indenture or agreement supplemental thereto, have the meanings herein specified, as follows: "Act of Bankruptcy" of the Borrower means any of the following with respect to the Borrower: (a) the commencement by the Borrower of a voluntary case under the federal bankruptcy laws, as now in effect or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or similar laws, or (b) failure by the Borrower to timely controvert the filing of a petition with a court having jurisdiction over the Borrower to commence an involuntary case against the Borrower under the federal bankruptcy laws, as now in effect or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or similar laws, or (c) the Borrower shall admit in writing its inability to pay its debts generally as they become due, or (d) a receiver, trustee or liquidator of the Borrower shall be appointed in any proceeding brought against the Borrower, or (e) assignment by the Borrower for the benefit of its creditors, or (f) the entry by the Borrower into an agreement of composition with its creditors. "Agreement" means the Loan Agreement, of even date herewith, between the City and the Borrower and relating to the loan of the proceeds of the Bonds, as originally executed or as it may ITom time to time be supplemented or amended. DOCSSFI :645021.14 2 d-fe:, "Authorized City Representative" means the Mayor of the City, the City Manager of the City, the Director of Finance of the City or other official of the City designated by any of the foregoing. "Authorized Denomination" shall have the meaning as set forth in the Multi- Mode Annex. "Bond" or "Bonds" means any bond designated as provided in Section 2.01(a) hereof. "Bond Counsel" means any attorney at law or firm of attorneys, of nationally recognized standing in matters pertaining to the federal tax exemption of interest on bonds issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States, but shall not include general counsel for the Borrower. "Bond Fund" means the City of Chula Vista/San Diego Gas & Electric Company 200- Series - Bond Fund established pursuant to Section 5.02 hereof. "Bond Proceeds Fund" means the fund established pursuant to Section 3.02 hereof. "Bond Purchase Fund" has the meaning assigned to such term in the Tender Agreement. "Bond Year" means the one-year period commencing on the Issue Date and ending the day preceding the first anniversary of the Issue Date and each one-year period commencing on successive anniversaries of the Issue Date, the last of which ends on the date the last of the Bonds is retired. "Borrower" means (i) San Diego Gas & Electric Company, a corporation organized under the laws of the State of California, and its successors and assigns, and (ii) any surviving, resulting or transferee corporation as provided in Section 5.2 of the Agreement. "Business Day" means any day on which banks located in the cities in which the Principal Offices of the Trustee, the Registrar, the Paying Agent, the Tender Agent, the Remarketing Agent and any Credit Provider are located are not required or authorized to remain closed and on which The New York Stock Exchange is not closed. "Certificate of the City" means a certificate signed by an Authorized City Representative. If and to the extent required by the provisions of Section 1.04 hereof, each Certificate of the City shall include the statements provided for in Section 1.04 hereof. "Certified Resolution" means a copy of a resolution or ordinance of the City certified by the City Clerk of the City to have been duly adopted by the City and to be in full force and effect on the date of such certification. "City" means the City of Chula Vista. DOCSSFI :645021.14 3 ." "Code" means the Internal Revenue Code of 1986. "Credit Agreement" means any agreement between the Borrower and any Credit Provider pursuant to which any Credit Facility is provided to the Trustee. "Credit Facility" means (i) any letter of credit, guarantee, insurance policy or standby purchase agreement provided by a financial institution, (ii) any mortgage bonds, debentures or other debt obligations of the Borrower or (iii) any other support or liquidity arrangement or security, if any, provided by the Borrower, pursuant to Section 4.6 of the Agreement and Section 5.1 of the Multi-Mode Annex. "Credit Provider" means the provider of any Credit Facility. "Debt Service" shall have the meaning ascribed to such term by Section 148(d)(3)(D) of the Code. "Determination of Taxability" means a determination that interest payable on any Bond is includable in the gross income for federal income tax purposes of the holder of such Bond (other than a holder who is a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code or Section 1O3(b)(13) of the 1954 Code). Such determination shall be deemed to have been made upon the date on which, due to the untruth or inaccuracy of any representation or warranty made by the Borrower in the Agreement, or in connection with the offer and sale of the Bonds, or the breach of any covenant or warranty of the Borrower contained in the Agreement, interest on the Bonds, or any of them, is determined to be includable in the gross income for federal income tax purposes of the owners thereof (other than an owner who is a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code or Section 1O3(b)(13) of the 1954 Code) by a final administrative determination of the Internal Revenue Service or judicial decision of a court of competent jurisdiction in a proceeding of which the Borrower received notice and was afforded an opportunity to participate to the full extent permitted by law. A determination or decision will not be considered final for purposes of the preceding sentence unless (A) the holder or holders of the Bonds involved in the proceeding in which the issue is raised (i) shall have given the Borrower and the Trustee prompt notice of the commencement thereof, and (ii) shall have offered the Borrower the opportunity to control the proceeding; provided the Borrower agrees to pay all expenses in connection therewith and to indemnify such holder or holders against all liability for such expenses (except that any such holder may engage separate counsel, and the Borrower shall not be liable for the fees or expenses of such counsel); and (B) such proceeding shall not be subject to a further right of appeal or shall not have been timely appealed. "DTC" means The Depository Trust Company and its successors and assigns. "DTC Participants" means those broker-dealers, banks and other financial institutions ITom time to time for which DTC holds Bonds as securities depository. "Event of Default" as used with respect to this Indenture has the meaning specified in Section 7.01 hereof, and as used with respect to the Agreement has the meaning specified in Section 6.1 thereof. DOCSSFI:645021.J4 4 ;2--11: "Government Obligations" means bonds, notes, certificates of indebtedness, treasury bills or other securities constituting direct obligations of, or obligations the full and timely payment of which is guaranteed by, the United States of America, or securities evidencing ownership interests in such obligations or in specified portions thereof (which may consist of specific portions of the principal of or interest on such obligations), or repurchase agreements continuously secured and collateralized by any of the foregoing. "Holder" or "Bondholder" means the registered owner of any Bond; provided that, at any time the Bonds are held in book-entry only form as provided in Section 2.0l(d) hereof, such terms shall also mean any beneficial owner of Bonds, or any nominee of such beneficial owner, for purposes of tendering Bonds for purchase pursuant to Section 2.02(a) ofthe Multi-Mode Annex, but not for purposes of receiving payment thereon or notices with respect thereto. "Indenture" means this Indenture of Trust, as originally executed or as it may from time to time be supplemented, modified or amended by any supplemental indenture entered into pursuant to the provisions hereof. "Information Services" means Financial Information, Inc.'s "Daily Called Bond Service," 30 Montgomery Street, 10th 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 "Municipal and Government," 99 Church Street, 8th Floor, New York, New York 10007, Attention: Municipal News Reports; the Municipal Securities Rulemaking Board, CDI Pilot, 1640 King Street, Suite 300, Alexandria, Virginia 22314; and Standard and Poor's "Called Bond Record," 25 Broadway, 3rd Floor, New York, New York 10004; or, in accordance with then-current guidelines of the Securities and Exchange Commission, such other addresses and/or such other services providing information with respect to called bonds, or no such services, as the City may designate in a Certificate of the City delivered to the Trustee. "Initial Rate Period" means the Rate Period for the Bonds on the Issue Date as specified in Section 2.01 (b) hereof. "Investment Securities" means: (a) any securities or other evidences of indebtedness or demand deposits which are lawful investments for surplus State funds pursuant to Government Code Section 16430, but excluding securities described by Section 16430(f); (b) money market mutual funds which are in compliance with S.E.C. Rule 2a- 7 under the Investment Company Act of 1940; or (c) "prime" commercial paper rated at least A-I by Standard & Poor's or P-I by Moody's Investors Service. "Issue Date" means , 200_, the date of issuance and delivery of the Bonds. DOCSSFI :645021.14 5 ô> p.1 "Law" means Chapter 3.48 of the Chula Vista Municipal Code, as amended and supplemented. "Marketing Party" means any auction agent, broker-dealer, market agent, remarketing agent, tender agent or other such party designated pursuant to the Multi-Mode Annex. "Multi-Mode Annex" means the Multi-Mode Annex attached hereto as Appendix B. "Notice by Mail" or "notice" of any action or condition "by Mail" shall mean a written notice meeting the requirements of this Indenture mailed by fIrst-class mail to the holders of specifIed Bonds, at the addresses shown on the registration books maintained pursuant to Section 2.04 hereof. "Opinion of Bond Counsel" means a written opinion of Bond Counsel addressed to the City. "Opinion of Counsel" means a written opinion of counsel (who may be counsel for the Borrower) who is acceptable to the Borrower. If and to the extent required by the provisions of Section 1.04, each Opinion of Counsel shall include the statements provided for in Section 1.04. "Outstanding" means, when used as of any particular time with reference to Bonds (subject to the provisions of Section 11.06(d)), all Bonds theretofore authenticated and delivered by the Registrar under this Indenture except: (a) Bonds theretofore cancelled by the Registrar or surrendered to the Registrar for cancellation; (b) Bonds in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Registrar pursuant to the terms of Section 2.06; and (c) Bonds with respect to which the liability of the City and the Borrower have been discharged to the extent provided in, and pursuant to the requirements of, Section 1 0.02. "Paying Agent" means any paying agent appointed as provided in Section 6.03 hereof, or any successor thereto. "Person" means an individual, a corporation, a partnership, a trust, an unincorporated organization or a government or any agency or political subdivision thereof. "Principal Office" (i) of the Registrar or the Paying Agent means the office thereof designated in writing by the Registrar or the Paying Agent, as the case may be, to the City, the Trustee and the Borrower, and (ii) of the Trustee means the principal corporate trust office of the Trustee, except with respect to payment, transfer, exchange, registration and DOCSSF 1:64502 1.14 6 -~D surrender of Bonds, when it means the corporate trust office of u.S. Bank, N.A. set forth in Section 11.05 or at such other address specified in writing by the Trustee from time to time. "Prior Bonds" has the meaning assigned to such term in the recitals to this Indenture. "Prior Trustee" means First Trust of California, National Association. "Project" means those facilities, including real property, structures, buildings, fixtures or equipment, described in Exhibit A to the Agreement, which facilities were financed, in whole or in part, from the proceeds of the sale of the Prior Bonds, and any real property, structures, buildings, fixtures or equipment acquired in substitution for, as a renewal or replacement of, or a modification or improvement to, all or any part of the facilities described in said Exhibit A. "Qualified Newspaper" means The Wall Street Journal (New York edition) or The Bond Buyer or any other newspaper or journal containing financial news, printed in the English language and customarily published on each Business Day, of general circulation in New York, New York, and selected by the Borrower (whose selection shall be final and conclusive) and designated to the Trustee by the City or the Borrower. "Rating Agency" means Moody's Investors Service, Inc. and Standard & Poor's, or in the event that Moody's Investors Service or Standard & Poor's no longer maintains a rating on the Bonds, any other nationally recognized rating agency then maintaining a rating on the Bonds. "Rebate Fund" means the City of Chula Vista/San Diego Gas & Electric Company 200- Series - Rebate Fund established and held by the Trustee in accordance with Section 6.06 hereof. "Rebate Requirement" means the amount directed by the Borrower to be remitted to the United States Government from time to time pursuant to the Tax Certificate, and shall expressly include amounts payable to the United States of America pursuant to Section 148(f) of the Code, and any temporary, proposed or final Treasury Regulations as may be applicable to the Bonds from time to time. "Registrar" means any registrar appointed as provided in Section 8.12 hereof, or any successor thereto. "Remarketing Agent" means the Remarketing Agent for the Bonds selected by the Borrower pursuant to Section 5.8(c) of the Agreement. "Remarketing Agreement" means any agreement which meets the requirements of Section 5.8(d) of the Agreement. "Repayment Installment" means any amount that the Borrower is required to pay directly to the Trustee pursuant to Section 4.2(a) of the Agreement as a repayment of the loan DOCSSFI:645021.14 7 . made by the City under the Agreement, which amount is detennined in accordance with Section 4.2(a) thereof. "Responsible Officer" of the Trustee means and includes every officer and assistant officer of the Trustee with responsibility for matters related to the administration of this Indenture. "Revenues" means all rents, receipts, installment payments and other income derived by the City or the Trustee under the Agreement, any Credit Facility, or otherwise in respect of the financing of the Project as contemplated by the Agreement, and any income or revenue derived :&om the investment of any money in any fund or account established pursuant to this Indenture (except the Rebate Fund), including all Repayment Installments and any other payments made by the Borrower pursuant to the Agreement; but such tenD shall not include payments to the City or the Trustee pursuant to Sections 4.2(b), 4.2(c), 4.2(e), 5.6, 6.3, 8.2 and 8.3 of the Agreement. "Rule 15c2-12" means Rule 15c2-12 adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. "Securities Depository" means The Depository Trust Company, 711 Stewart . Avenue, Garden City, New York 11530, Fax-(516) 227-4039 or 4190 or, in accordance with then-current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories, or no such depositories, as the City may designate in a Certificate of the City delivered to the Trustee. "Series" refers to any or all of the Bonds designated by the respective series designations set forth in Section 2.01(a). "Tax Certificate" means the Tax Certificate and Agreement, dated as of the Issue Date, by and between the City and the Borrower, as the same may be amended from time to time. "Tax-Exempt" means, with respect to interest on any obligations of a state or local government, including the Bonds, that such interest is excluded from gross income for federal income tax purposes, whether or not such interest is includable as an item of tax preference or otherwise includable directly or indirectly for purposes of calculating other tax liabilities, including any alternative minimum tax or environmental tax under the Code. "Tender Agent" means the tender agent for the Bonds selected by the Borrower and meeting the requirements of Section 5.8(b) of the Agreement. "Tender Agreement" means any agreement that meets the requirements of Section 5. 8(b) of the Agreement. "Trustee" means u.S. Bank, N.A., a national banking association organized and existing under the laws of the United States of America, or its successor for the time being as Trustee hereunder. DOCSSFI :645021.14 8 _.. "Written Consent of the City," "Written Order of the City," "Written Request of the City" and "Written Requisition of the City" mean, respectively, a written consent, order, request or requisition signed by or on behalf of the City by an Authorized City Representative. "Yield" shall have the meaning ascribed to such term by Section 148(h) of the Code. "1954 Code" means the Internal Revenue Code of 1954, as amended. Section 1.02. Number and Gender. The singular form of any word used herein, including the tenns defined in Section 1.01, shall include the plural, and vice versa. The use herein of a word of any gender shall include all genders. Section 1.03. Articles, Sections, Etc. All references herein to "Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture as originally executed; 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. The headings or titles of the several Articles and Sections hereof, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this Indenture. Section 1.04. Content of Certificates and Opinions. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture or the Agreement (except for the certificate of destroyed Bonds provided for herein) shall include (a) a statement that the person or persons making or giving such certificate or opinion have read such covenant or condition and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) 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 (d) a statement as to whether, in the opinion of the signers, such condition or covenant has been complied with. Any such certificate or opinion made or given by an officer of the City or the Borrower 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 or opinion 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 made or given by counsel may be based, insofar as it relates to factual matters (with respect to which information is in the possession of the City or the Borrower), upon the certificate or opinion of or representations by an officer of the City or the Borrower, as applicable, unless such counsel knows that the certificate or opinion or representations with respect to the matters upon which his opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. DOCSSF 1:64502 I. 14 9 ARTICLE II THE BONDS Section 2.01. Authorization and Terms of Bonds. (a) Authorization. Bonds designated as "City of Chula Vista Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 200- Series " --! (the "Bonds") and further designated as provided below may be issued under this Indenture. The aggregate principal amount of Bonds which may be issued and outstanding under this Indenture shall not exceed dollars ($ ), exclusive of Bonds executed and authenticated as provided in Section 2.06. (b) General Terms. The Bonds shall be issued as fully registered Bonds, without coupons, in Authorized Denominations and shall all be dated as of the Issue Date. The Bonds shall mature, subject to prior redemption as provided in Article IV, upon the terms and conditions hereinafter set forth, on ,20_. The Bonds shall initially bear interest as provided in Section 2.0 I (c) of the Multi-Mode Annex, which may be adjusted as provided therein. (c) Form of Bonds. The Bonds of each Series and the certificate of authentication to be executed thereon shall be in substantially the form attached hereto as Appendix A, with such appropriate variations, omissions and insertions as are permitted or required by this Indenture. The Bonds of each Series shall be numbered consecutively from I upward and shall bear a letter prefix indicating to which Series they belong. Pursuant to recommendations promulgated by the Committee on Uniform Security Identification Procedures, "CUSIP" numbers may be printed on the Bonds. The Bonds may bear such endorsement or legend relating thereto as may be required to conform to usage or law with respect thereto. (d) Book-Entry System. Unless otherwise determined by the City, the Bonds shall be issued in the form of a separate single certificated fully registered Bond registered in the name of Cede & Co., as nominee of DTC, or any successor nominee (the "Nominee"). Except as provided in paragraph (iii) below, all of the outstanding Bonds shall be so registered in the registration books kept by the Registrar, and the provisions of this subsection (d) shall apply thereto. (i) With respect to Bonds registered on the registration books kept by the Registrar in the name of the Nominee, the City, the Paying Agent and the Trustee shall have no responsibility or obligation to any DTC Participant or to any person on behalf of which a DTC Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the City, the Paying Agent and the Trustee shall have no responsibility or obligation with respect to (1) the accuracy of the records of DTC, the Nominee or any DTC Participant with respect to any ownership interest in the Bonds, (2) the delivery to any DTC Participant or any other person, other than a Bondholder, as shown in the registration books kept by the Registrar, of any notice with respect to the Bonds, including any notice of redemption, or (3) the payment to any DTC Participant or any other person, other than a Bondholder, as shown in the registration books kept by the Registrar, of any amount with respect to principal of, premium, if any, or interest on the DOCSSFI:645021.14 10 Bonds. The City, the Paying Agent and the Trustee may treat and consider the person in whose name each Bond is registered in the registration books kept by the Registrar as the holder and absolute owner of such Bond for the purpose of payment of principal, premium 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 Paying Agent shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the respective Bondholders, as shown in the registration books kept by the Registrar, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to payment of principal of, premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. No person other than a Bondholder, as shown in the registration books kept by the Registrar, shall receive a certificated Bond evidencing the obligation of the City to make payments of principal, premium, if any, and interest pursuant to this Indenture. (ii) The City, the Paying Agent and the Trustee shall execute and deliver to DTC a letter of representation in customary fonn with respect to the Bonds in book-entry fonn (the "Representation Letter"), but such Representation Letter shall not in any way limit the provisions of the foregoing paragraph (1) or in any other way impose upon the City any obligation whatsoever with respect to persons having interests in the Bonds other than the Bondholders, as shown on the registration books kept by the Registrar. The Trustee and the Paying Agent shall take all action reasonably necessary for all representations of the City in the Representation Letter with respect to the Trustee and the Paying Agent to be complied with at all times. (iii) DTC may detennine to discontinue providing its services with respect to the Bonds at any time by giving reasonable notice to the City, the Paying Agent and the Trustee and discharging its responsibilities with respect thereto under applicable law. The City, with the consent of the Borrower, may terminate the services of DTC with respect to the Bonds. Upon the discontinuance or tennination of the services of DTC with respect to the Bonds, unless a substitute securities depository is appointed to undertake the functions of DTC hereunder, the City, at the expense of the Borrower, is obligated to deliver Bond certificates to the beneficial owners of such Bonds, as described in this Indenture, and such Bonds shall no longer be restricted to being registered in the registration books kept by the Registrar in the name of Cede & Co. as nominee of DTC, but may be registered in whatever name or names Bondholders transferring or exchanging Bonds shall designate, in accordance with the provisions of this Indenture. (iv) Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal or, premium, if any, and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the Representation Letter. Bondholders shall have no lien or security interest in any rebate or refund paid by DTC to the Paying Agent which arises from the payment by the Paying Agent of principal of or interest on the Bonds in immediately available funds to DTC. DOCSSFI :645021.14 11 Section 2.02. Execution of Bonds. The Bonds shall be signed in the name and on behalf of the City with the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of its City Clerk or Deputy City Clerk, under the seal of the City. Such seal may be in the form of a facsimile ofthe City's seal and may be imprinted or impressed upon the Bonds. The Bonds shall then be delivered to the Registrar or the Tender Agent for authentication by the Registrar or the Tender Agent, as the case may be. In case any officer who shall have signed any of the Bonds shall cease to be such officer before the Bonds so signed or attested shall have been authenticated or delivered by the Registrar or the Tender Agent, as the case may be, or issued by the City, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issuance, shall be as binding upon the City as though those who signed and attested the same had continued to be such officers of the City. Also, any Bond may be signed on behalf of the City by such persons as on the actual date of the execution of such Bond shall be the proper officers although on the nominal date of such Bond any such person shall not have been such officer. Only such of the Bonds as shall bear thereon a certificate of authentication in the form recited in Appendix A hereto, manually executed by the Registrar or the Tender Agent, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Registrar or the Tender Agent, as the case may be, shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. Upon authentication of any Bond, the Registrar or the Tender Agent, as the case may be, shall set forth on such Bond (1) the date of such authentication and (2) in the case of a Bond bearing interest at a Variable Term Rate (unless such Bond is to be held in book-entry only form as provided in Section 2.01(d)), such Variable Term Rate, the day succeeding the last day of the applicable Variable Term Segment, the number of days comprising such Variable Term Segment and the amount of interest to accrue during such Variable Term Segment. Unless the City shall otherwise direct. with the advice and consent of the Borrower, the Tender Agent shall serve as co-authenticating agent for the Bonds. Section 2.03. Transfer and Exchange of Bonds. Registration of any Bond may, in accordance with the terms of this Indenture, be transferred, upon the books of the Registrar required to be kept pursuant to the provisions of Section 2.04, 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 a written instrument of transfer in a form acceptable to the Registrar, duly executed. Whenever any Bond shall be surrendered for registration of transfer, the City shall execute and the Registrar shall authenticate and deliver a new Bond or Bonds of the same tenor of Authorized Denominations. No registration of transfer of Bonds shall be required to be made for a period of fifteen (15) days preceding the date on which the Trustee gives any notice of redemption, nor shall any registration of transfer of Bonds called for redemption be required. Bonds may be exchanged at the principal office of the Registrar for a like aggregate principal amount of Bonds of the same tenor of Authorized Denominations. The Registrar shall require the payment by the Bondholder requesting such exchange of any tax or -:;h DOCSSF 1:645021.14 12 other governmental charge required to be paid with respect to such exchange, and there shall be no other charge to any Bondholders for any such exchange. Except with respect to Bonds purchased pursuant to Section 2.02(b) of the Multi-Mode Annex, no exchange of Bonds shall be required to be made for a period of fifteen (15) days preceding the date on which the Trustee gives notice of redemption, nor shall any exchange of Bonds called for redemption be required. Section 2.04. Bond Register. The Registrar will keep or cause to be kept at its principal office sufficient books for the registration and the registration of transfer of the Bonds, which shall at all times be open to inspection by the City, the Trustee and the Borrower during normal business hours and upon reasonable notice; and, upon presentation for such purpose, the Registrar shall, under such reasonable regulations as it may prescribe, register the transfer or cause to be registered the transfer, on said books, Bonds as hereinbefore provided. Section 2.05. Temporary Bonds. The Bonds may be issued initially in temporary fonn 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 determined by the City 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 City and be authenticated and registered by the Registrar upon the same conditions and in substantially the same manner as the definitive Bonds. If the City issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and thereupon the temporary Bonds may be surrendered, for cancellation, in exchange therefor at the principal office of the Registrar, and the Registrar shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of the same tenor 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 2.06. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become mutilated, the City, upon the request and at the expense of the holder of said Bond, shall execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of the same tenor and number in exchange and substitution for the Bond so mutilated, but only upon surrender to the Registrar of the Bonds so mutilated. Every mutilated Bond so surrendered to the Registrar shall be cancelled by it and destroyed and, upon the written request of the City, a certificate evidencing such destruction shall be delivered to the City. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the City, the Borrower and the Registrar, and if such evidence be satisfactory to them and indemnity satisfactory to them shall be given, the City, at the expense of the holder, shall execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of the same tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured, instead of issuing a substitute Bond the Registrar may pay the same without surrender thereof). The City may require payment of a reasonable fee for each new Bond issued under this Section and payment of the expenses which may be incurred by the City and the Registrar. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the City whether or not the Bond so 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. DOCSSFl:645021.14 13 ¡)-?; ARTICLE III ISSUANCE OF BONDS Section 3.01. Authentication and Delivery of Bonds. Forthwith upon the execution and delivery of this Indenture, upon the execution of the Bonds by the City and delivery thereof to the Registrar, as hereinabove provided, and without any further action on the part of the City, the Registrar shall authenticate the Bonds in an aggregate principal amount of dollars ($ ) and shall deliver the Bonds to or upon the Written Order of the City. Section 3.02. Application of Proceeds of Bonds. The proceeds received by the City from the sale of the Bonds shall be deposited into the Bond Proceeds Fund, which fund the Trustee shall establish and maintain in trust. Amounts on deposit in the Bond Proceeds Fund shall be transferred to the Prior Trustee in the amounts and on the date or dates as the Borrower shall direct the Trustee in writing for the application of prepaying the Prior Loans and redeeming the Prior Bonds. ARTICLE IV REDEMPTION OF BONDS Section 4.01. Redemption of Bonds. The Bonds shall be subject to redemption at the option of the Borrower at the times, in the amounts and at the prices as provided in Article IV of the Multi-Mode Annex. [Insert any additional redemption provisions not in Annex.] ARTICLE V REVENUES Section 5.01. Pledge of Revenues. All of the Revenues, to the extent the City has any interest therein, are hereby irrevocably pledged to the punctual payment of the principal of and interest and premium, if any, on the Bonds, and Revenues shall not be used for any other purpose while any of the Bonds remain outstanding. Said pledge shall constitute a first and exclusive lien on the Revenues and any Credit Facility for the payment of the Bonds in accordance with the terms thereof. All Revenues shall be held in trust for the benefit of the holders from time to time of the Bonds, but shall nevertheless be disbursed, allocated and applied solely for the uses and purposes hereinafter in this Article V set forth. Notwithstanding the foregoing provisions of this Section 5.01, that portion of the Revenues permitted to be returned to the Borrower under Section 5.02 hereof shall not be subject to the pledge and lien of this Section 5.01. DOCSSFI:645021.14 14 Q. ..w;l «? The Bonds shall not constitute a debt or liability or a pledge of the faith and credit of the City or the State of California, but shall be payable solely trom the funds herein provided therefor. The issuance of the Bonds shall not directly or indirectly or contingently obligate the City, the State of California or any political subdivision thereof to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment. Section 5.02. Bond Fund. Upon the receipt thereof, the Trustee shall deposit all accrued interest, if any, paid at the sale of the Bonds and all Revenues in the "City of Chula Vista/San Diego Gas & Electric Company Bond Fund" (herein called the "Bond Fund"), which the Trustee shall establish and maintain and hold in trust, and which shall be disbursed and applied only as hereinafter authorized. Except as provided below, moneys in the Bond Fund shall be used solely for the payment of the principal of, premium, if any, and interest on the Bonds as the same shall become due and payable at maturity, upon redemption or otherwise. Funds for such payments of the principal of, premium, if any, and interest on the Bonds shall be derived from the following sources in the order of priority indicated: (i) from accrued interest, if any, paid by the initial purchasers of the Bonds, which shall be applied to the payment of interest on such Bonds; and (ii) from amounts paid by the Borrower pursuant to the provisions of Section 4.2(a) of the Agreement, including moneys realized by the Trustee under any Credit Facility. So long as no Event of Default (or any event which would be an Event of Default hereunder with the passage of time or the giving of notice) exists hereunder, on the day after each Interest Payment Date, the Trustee shall return to the Borrower any moneys then on deposit in the Bond Fund or shall deposit such funds in the Rebate Fund if so instructed by the Borrower pursuant to Section 6.06(c) hereof. Section 5.03. Trustee Authorized to Realize Moneys Under any Credit Facility. The City hereby authorizes and directs the Trustee, and the Trustee hereby agrees, to take such actions as the Trustee determines are necessary to realize moneys under any Credit Facility as shall be necessary to make timely payment of principal of and premium, if any, and interest on the Bonds to the extent Bond proceeds and other moneys in the Bond Fund are not available for such payment in accordance with the provisions of Section 5.02 of this Indenture. Section 5.04. Investment of Moneys. Subject to Section 6.06 hereof, any moneys in any of the funds and accounts to be established by the Trustee pursuant to this Indenture shall be invested upon the written direction of the Borrower, by the Trustee, if and to the extent then permitted by law, in Investment Securities. The Trustee shall be entitled to rely conclusively upon the written direction of the Borrower directing investment in any particular investment as to the fact that such investment is permitted by law and constitutes an Investment Security, and the Trustee shall not be required to make further investigation with respect thereto. In the absence of such direction, the Trustee shall invest solely in units of a money market portfolio restricted to obligations issued by, or guaranteed by the full faith and credit of, the United States of America. Moneys in any fund or account shall be invested in Investment Securities with respect to which payments of principal thereof and interest thereon are scheduled DOCSSFI :645021.14 15 ;2-- to be paid or are otherwise payable (including Investment Securities payable at the option of the holder) not later than the date on which such moneys will be required by the Trustee. Except for purposes of Section 6.06, for the purpose of detennining the amount in any fund, all Investment Securities credited to such fund shall be valued at the lesser of cost (which shall be (1) measured exclusive of accrued interest after the fust payment of interest following purchase and (2) ratably increased over time by the amortization of any difference between the initial purchase price, excluding accrued interest but including commissions, and the par value) or par value (plus, prior to the fust payment of interest following purchase, the amount of any accrued interest paid as part of the purchase price). Any interest, profit or loss on such investments shall be credited or charged to the respective funds from which such investments ,are made. The Trustee shall sell or present for redemption any obligations so purchased whenever it shall be necessary in order to provide moneys to meet any payment required under this Indenture. In no event shall the Trustee be liable or responsible for any loss resulting from any investment made at the written direction of the Borrower or otherwise in accordance with this Indenture. Unless otherwise directed' by the Borrower, the Trustee may make any investment pennitted under this Section 5.04 through or with its own commercial banking or investment departments. The City and the Borrower (by its execution of the Agreement) acknowledge that to the extent regulations of any applicable regulatory entity grant the City or the Borrower the right to receive brokerage confinnations of security transactions as they occur, the City and the Borrower specifically waive receipt of such confinnations to the extent pennitted by law. The Trustee will furnish the City (upon its request) and the Borrower periodic cash transaction statements which include detail for all investment transactions made by the Trustee hereunder. . Section 5.05. Assignment to Trustee: Enforcement of Obligations. (a) The City hereby transfers, assigns and sets over to the Trustee all of the Revenues and any and all rights and privileges it has under the Agreement, except (i) the City's rights to receive any notices under this Indenture or the Agreement, (ii) the City's right to receive payments under Sections 4.2(c), 4.2(e), 6.3, 8.2 and 8.3 of the Agreement and (iii) the City's rights to give approvals or consents pursuant to the Agreement, but including, without limitation, the right to collect and receive directly all of the Revenues and the right to hold and enforce any security interest, and any Revenues collected or received by the City shall be deemed to be held, and to have been collected or received, by the City as the agent of the Trustee, and shall forthwith be paid by the City to the Trustee. The Trustee also shall be entitled to and subject to the provisions of this Indenture shall take all steps, actions and proceedings reasonably necessary in its judgment (1) to enforce the tenDs, covenants and conditions of, and preserve and protect the priority of its interest in and under, the Agreement, any Credit Facility and any other security agreement with respect to the Project or the Bonds, and (2) to assure compliance with all covenants, agreements and conditions on the part of the City contained in this Indenture with respect to the Revenues. Section 5.06. Repayment to Borrower. When there are no longer any Bonds outstanding or provision for payment of the Bonds has been made in accordance with Article X hereof, and all fees, charges and expenses of the Trustee, the Registrar, the Tender Agent, the DOCSSFI:645021.14 16 ;)-30 Remarketing Agent and any Paying Agents have been paid or provided for, payment of the full amount owing the United States Goveniment, as determined under Section 5.6 of the Agreement, Section 6.06 hereof and the Tax Certificate, all expenses of the City relating to the Project and this Indenture have been paid or provided for, and all other amounts payable hereunder and under the Agreement have been paid, and this Indenture has been discharged and satisfied, the Trustee shall pay to the Borrower any amounts remaining in any fund established and held hereunder. ARTICLE VI COVENANTS OF THE CITY Section 6.01. Payment of Principal and Interest. The City shall punctually pay, but only out of Revenues as herein provided, the principal and the interest (and premium, if any) to become due in respect of every Bond issued hereunder at the times and places and in the manner provided herein and in the Bonds according to the true intent and meaning thereof. All such payments shall be made by the Trustee as provided in Section 2.01 hereof. When and as paid in full, all Bonds, if any, shall be delivered to the Trustee, shall forthwith be cancelled and destroyed by the Trustee which, upon the written request of the City, shall deliver a certificate evidencing such destruction to the City. Section 6.02. Extension or Funding of Claims for Interest. In order to prevent any accumulation of claims for interest after maturity, to the extent within the City's control, the City shall not, directly or indirectly, extend or assent to the extension of the time for the payment of any claim for interest on any of the Bonds, and shall not, directly or indirectly, be a party to or approve any such arrangement by purchasing or funding such claims or in any other manner. In case any such claim for interest shall be extended or funded, whether or not with the consent of the City, such claim for interest so extended or funded shall not be entitled, in case of 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 which shall not have been so extended or funded. Section 6.03. Paying Agents. The Borrower, with the written approval of the Trustee and the City, may appoint and at all times have one or more Paying Agents in such place or places as the Borrower may designate, for the payment of the principal of, and the interest (and premium, if any) on, the Bonds. It shall be the duty of the Trustee to make such arrangements with any such Paying Agent as may be necessary to assure, to the extent of the moneys held by the Trustee for such payment, the prompt payment of the principal of and interest and premium, if any, on the Bonds presented at either place of payment. The Paying Agent initially appointed hereunder is the Trustee. Section 6.04. Preservation of Revenues. The City shall not take any action to interfere with or impair the pledge and assignment hereunder of Revenues and the assignment to the Trustee of certain rights of the City under the Agreement, or the Trustee's enforcement of any rights thereunder, without the prior written consent of the Trustee. The Trustee may give such written consent only in accordance with the provisions of Article IX hereof. DOCSSFl:645021.14 17 :;l" - I Section 6.05. Compliance with Indenture. To the extent within the City's control, the City shall not issue, or peimit to be issued any Bonds secured or payable in any manner out of Revenues in any manner other than in accordance with the provisions of this Indenture, and shall not suffer or permit any default to occur under this Indenture, but shall faithfully observe and perform all the covenants, conditions and requirements hereof. Section 6.06. Arbitrage Covenants; Rebate Fund. (a) The City covenants with all persons who hold or at any time held Bonds that, to the extent within the City's control, it will not directly or indirectly use or permit the use of the proceeds of any of the Bonds or any other funds of the City or take or omit to take any other action which will cause any of the Bonds to be "arbitrage bonds" or otherwise subject to federal income taxation by reason of Sections 103 and 141 through 150 of the Code and any applicable regulations promulgated thereunder. To that end the City covenants to comply with all provisions set forth in the Tax Certificate, which is incorporated herein by reference. (b) The Trustee shall establish and maintain a fund separate from any other fund established and maintained hereunder designated the "City of Chula Vista/San Diego Gas & Electric Company Rebate Fund" (herein called the "Rebate Fund"). Within the Rebate Fund, the Trustee shall maintain such accounts as shall be directed by the Borrower. Within thirty (30) days after the end of every fifth Bond Year, and within fifty-five (55) days after the date on which no Bonds are outstanding, the Trustee shall request the Borrower to deliver to the Trustee and the City a certificate stating whether any rebate payment is required to be made, as set forth in the Tax Certificate, and to deliver to the Trustee any amount so required to be paid. Subject to the transfer provisions provided in paragraph (c) below, all money at any time deposited in the Rebate Fund shall be held by the Trustee in trust, to the extent required to satisfy the Rebate Requirement, for payment to the United States Government, and neither the Borrower nor the City nor the Bondholders shall have any rights in or claim to such moneys. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section, by Section 5.6 of the Agreement and by the Tax Certificate. The Trustee shall conclusively be deemed to have complied with such provisions if it follows the directions of the Borrower, including supplying all necessary information in the manner set forth in the Tax Certificate, and shall not be required to take any actions thereunder in the absence of written directions from the Borrower. (c) Upon receipt of the Borrower's written instructions, the Trustee shall remit part or all of the balances in the Rebate Fund to the United States Government, as so directed. In addition, if the Borrower so directs, the Trustee will deposit moneys into or transfer moneys out of the Rebate Fund from or into such accounts or funds as directed by the Borrower's written directions. Any funds remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Requirement, or provision made therefor satisfactory to the Trustee, shall be withdrawn and remitted to the Borrower. (d) Notwithstanding any provision of this Indenture, including in particular Article X hereof, the obligation to remit the Rebate Requirement to the United States and to comply with all other requirements of this Section 6.06, Section 5.6 of the Agreement and the Tax Certificate shall survive the defeasance or payment in full of the Bonds. Õ\ DOCSSF1:645021.14 18 Section 6.07. Other Liens. So long as any Bonds are outstanding, to the extent within the City's control, the City shall not create or suffer to be created any pledge, lien or charge of any type whatsoever upon all or any part of the Revenues, other than the lien of this Indenture. Section 6.08. Further Assurances. Whenever and so often as requested so to do by the Trustee, the City shall promptly execute and deliver or cause to be executed and delivered all such other and further instruments, documents or assurances, and promptly do or cause to be done all such other and further things, as may be necessary or reasonably required in order to further and more fully vest in the Trustee and the Bondholders all of the rights, interests, powers, benefits, privileges and advantages conferred or intended to be conferred upon them by this Indenture and to perfect and maintain as perfected such rights, interests, powers, benefits, privileges and advantages. ARTICLE VII DEFAULT Section 7.01. Events of Default; Acceleration; Waiver of Default. Each of the following events shall constitute an "Event of Default" hereunder: (a) Failure to make due and punctual payment of any installment of interest upon any Bond on the date such installment shall have been due; (b) Failure to make due and punctual payment of the principal of and premium, if any, on any Bond at the stated maturity thereof, or upon proceedings for redemption thereof or upon the maturity thereof by declaration, or failure by the Borrower to make any payment necessary to purchase Bonds tendered for purchase in accordance with Section 2.02(a) or (b) of the Multi-Mode Annex; (c) Default by the City in the perfonnance or observance of any other of the covenants, agreements or conditions on its part in this Indenture or in the Bonds contained, and the continuance of such default for a period of sixty (60) days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the City and the Borrower by the Trustee, or to the City, the Borrower and the Trustee by the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Bonds at the time outstanding. No default specified in (c) above shall constitute an Fvent of Default unless the City and the Borrower shall have failed to correct such default within the applicable 60-day period; provided, however, that if the default shall be such that it can be corrected, but cannot be corrected within such period, it shall not constitute an Event of Default if corrective action is instituted by the City or the Borrower within the applicable period and diligently pursued until the default is corrected. With regard to any alleged default concerning which notice is given to the Borrower under the provisions of this Section, the City hereby grants the Borrower full authority for account of the City to perfonn any covenant or obligation the non-perfonnance of which is alleged in said notice to constitute a default in the name and stead of the City with full DOCSSFI :645021.14 19 ¡;l,* 33 power to do any and all things and acts to cure such alleged default, at the Borrower's cost and for the benefit of the City, to the same extent that the City could do and perfonn any such things and acts and with power of substitution. Upon the occurrence and continuation of an Event of Default hereunder, the Trustee may, and upon the written request of holders of not less than 25% in aggregate principal amount of Bonds then outstanding, shall, by notice in writing delivered to the Borrower with copies of such notice being sent to the City, declare the principal of all Bonds then outstanding and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Notwithstanding the foregoing, the Trustee shall not be required to take any action upon the occurrence and continuation of an Event of Default under Section 7.01(c) above until a Responsible Officer of the Trustee has actual notice or knowledge of such Event of Default. After such declaration of acceleration the Trustee shall immediately take such actions as necessary to realize moneys under any Credit Facility and shall declare all indebtedness payable under Section 4.2(a) of the Agreement to be immediately due and payable in accordance with Section 6.2 of the Agreement and may exercise and enforce such rights as exist under the Agreement. The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, there shall have been deposited with the Trustee a sum which, together with any other amounts then held in the Bond Fund, is sufficient to pay all the principal of the Bonds matured prior to such declaration and all matured installments of interest (if any) upon all the Bonds, with interest on such overdue installments of principal as provided in the Agreement, and the reasonable fees and expenses (including, but not limited to those of its attorneys) of the Trustee, and any and all other defaults 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 holders of at least a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the City and to the Trustee, may, on behalf of the holders of all the Bonds, rescind and annul such declaration and its consequences and waive such default; provided that no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Section 7.02. Institution of Legal Proceedings by Trustee. In addition, if one or more of the Events of Default shall happen and be continuing, the Trustee in its discretion may, and upon the written request of the holders of a majority in principal amount of the Bonds then outstanding and upon being indemnified to its satisfaction therefor shall, proceed to protect or enforce its rights or the rights of the holders of Bonds under the Law or under this Indenture, by a suit in equity or action at law, either for the specific perfonnance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Trustee shall deem most effectual in support of any of its rights or duties hereunder. 3Ú DOCSSFI :645021.14 20 ~". I Section 7.03. Application of Moneys Collected bv Trustee. Any moneys collected by the Trustee on or after the occurrence of an Event of Default shall be applied in the order following, at the date or dates fixed by the Trustee and, in the case of distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation of the Bonds, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid: First: To the payment of costs and expenses of collection, just and reasonable compensation to the Trustee for its own services and for the services of counsel, agents and employees by it properly engaged and employed, and all other expenses and liabilities incurred, and for advances made pursuant to the provisions of this Indenture with interest on all such advances at the rate of interest then borne by the Bonds. Second: In case the principal of none of the Bonds shall have become due and remains unpaid, to the payment of interest in default in the order of the maturity thereof, such payments to be made ratably and proportionately to the persons entitled thereto without discrimination or preference, except as specified in Section 6.02. Third: In case the principal of any of the Bonds shall have become due by declaration or otherwise and remains unpaid, first to the payment of principal of all Bonds then due and unpaid, then to the payment of interest in default in the order of maturity thereof, and then to the payment of the premium thereon, if any; in every instance such payment to be made ratably to the persons entitled thereto without discrimination or preference, except as specified in Section 6.02. Section 7.04. Effect of Delay or Omission to Pursue Remedy. No delay or omission of the Trustee or of any holder of Bonds to exercise any right or power arising trom any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every power and remedy given by this Article VII to the Trustee or to the holders of Bonds may be exercised from time to time and as often as shall be deemed expedient. In case the Trustee shall have proceeded to enforce any right under this Indenture, and such proceedings shall have been discontinued or abandoned because of waiver or for any other reason, or shall have been detennined adversely to the Trustee, then and in every such case the City, the Trustee and the holders of the Bonds, severally and respectively, shall be restored to their fonner positions and rights hereunder in respect to the trust estate; and all remedies, rights and powers of the City, the Trustee and the holders of the Bonds shall continue as though no such proceedings had been taken. Section 7.05. Remedies Cumulative. No remedy herein conferred upon or reserved to the Trustee or to any holder of the Bonds is intended to be exclusive of any other remedy, but each and 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. Section 7.06. Covenant to Pay Bonds in Event of Default. The City covenants that, upon the happening of any Event of Default, the City will pay to the Trustee upon demand, but only out of, and to the extent of, Revenues, for the benefit of the holders of the Bonds, the whole amount then due and payable thereon (by declaration or otherwise) for interest or for DOCSSFI:645021.14 21 ~-35 principal and premium, or both, as the case may be, and all other sums which may be due hereunder or secured hereby, including reasonable compensation to the Trustee, its agents and counsel, and any expenses or liabilities incurred by the Trustee hereunder. In case the City shall fail to pay the same forthwith upon such demand, the Trustee in its own name and on behalf of, and for the equal and ratable benefit of, the Bondholders, shall be entitled to institute proceedings at law or in equity in any court of competent jurisdiction to recover judgment for the whole amount due and unpaid, together with costs and reasonable attorneys' fees, subject, however, to the condition that such judgment, if any, shall be limited to, and payable solely out of, Revenues as herein provided and not otherwise. The Trustee shall be entitled to recover such judgment as aforesaid, either before or after or during the pendency of any proceedings for the enforcement of this Indenture, and the right of the Trustee to recover such judgment shall not be affected by the exercise of any other right, power or remedy for the enforcement of the provisions of this Indenture. Section 7.07. Trustee Appointed Agent for Bondholders. The Trustee is hereby appointed the agent and attorney of the holders of all Bonds outstanding hereunder for the purpose of filing any claims relating to the Bonds. Section 7.08. Power of Trustee to Control Proceedings. 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 holders of the Bonds, it shall have full power, in the exercise of its discretion for the best interests of the holders of the Bonds, 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 hereunder, 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 holders of at least a majority m principal amount of the Bonds outstanding hereunder OppOSIng such discontinuance, withdrawal, compromise, settlement or other disposal of such litigation. All rights of action under this Indenture or under any of the Bonds secured hereby which are enforceable by the Trustee may be enforced by it without the possession of any of the Bonds, or the production thereof at the trial or other proceedings relative thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name as Trustee on behalf of, and for the equal and ratable benefit of, the Bondholders, subject to the provisions of this Indenture. Section 7.09. Limitation on Bondholders' Right to Sue. No holder of any Bond issued hereunder 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 (a) such holder shall have previously given to the Trustee written notice of the occurrence of an Event of Default hereunder; (b) the hòlders of at least 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; (c) said holders shall have tendered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; and (d) the Trustee shall have refused or omitted to comply with DOCSSFI:645021.14 22 ;l- 3b such request for a period of thirty (30) 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 holder of Bonds of any remedy hereunder; it being understood and intended that no one or more holders of Bonds 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 holders of the outstanding Bonds (subject to the provisions of Section 6.02 hereof). The right of any holder of any Bond to receive payment of the principal of (and premium, if any) and interest on such Bond out of Revenues, as herein and therein provided, on and after the respective due dates expressed in such Bond, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder, notwithstanding the foregoing provisions of this Section or Section 7.08 or any other provision of this Indenture. Section 7.10. Limitation of Liability to Revenues. Notwithstanding anything in this Indenture contained, the City shall not be required to advance any moneys derived fÌ"om the proceeds of taxes collected by the City or by any governmental body or political subdivision of the State of California or fÌ"om any source of income of any governmental body or political subdivision of the State of California or the City other than the Revenues, for any of the purposes in this Indenture mentioned, whether for the payment of the principal of or interest on the Bonds or for any other purpose of this Indenture. The Bonds are not general obligations of the City, and are payable fÌ"om and secured by the Revenues only. The Trustee shall have no liability or obligation to pay principal of, premium, if any, or interest on the Bonds except fÌ"om Revenues. ARTICLE VIII THE TRUSTEE AND THE REGISTRAR Section 8.01. Duties, Immunities and Liabilities of Trustee and Registrar. The Trustee and the Registrar shall, prior to an Event of Default, and after the curing of all Events of Default which may have occurred, perform such duties and only such duties as are specifically set forth in this Indenture. The Trustee shall, during the existence of any Event of Default (which has not been cured), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as prudent persons would exercise or use under the circumstances in the conduct of their own affairs. No provision of this Indenture shall be construed to relieve the Trustee or the Registrar from liability for its own negligent action or its own negligent failure to act, except that: (a) Prior to such an Event of Default hereunder and after the curing of all Events of Default which may have occurred, 01,3 DOCSSF 1:64502 1.1 4 23 (1) the covenants, duties and obligations of the Trustee and the Registrar, as the case may be, shall be detennined solely by the express provisions of this Indenture; the Trustee or the Registrar, as the case may be, shall not be liable except for the perfonnance of such duties and obligations as are specifically set forth in this Indenture; and covenants, no duties or obligations of the Trustee or the Registrar shall be implied into this Indenture; and (2) in the absence of negligence or willful misconduct on the part of the Trustee or the Registrar, as the case may be, the Trustee or the Registrar, as the case may be, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificate or opinion furnished to the Trustee or the Registrar, as the case may be, confonning to the requirements of this Indenture; but in the case of any such certificate or opinion which by any provision hereof is specifically required to be furnished to the Trustee or the Registrar, as the case may be, the Trustee or the Registrar, as the case may be, shall be under a duty to examine the same to detennine whether or not it confonns to the requirements of this Indenture; and (b) At all times, regardless of whether or not any Event of Default shall exist, (1) the Trustee and the Registrar shall not be liable for any error of judgment made by a Responsible Officer or Officers of the Trustee or the Registrar unless it shall be proved that the Trustee or the Registrar, as the case may be, was negligent in ascertaining the pertinent facts; and (2) neither the Trustee nor the Registrar shall be liable with respect to any action taken or omitted to be taken by it in accordance with the direction of the holders of not less than a majority, or such other percentage as may be required or provided for hereunder, in aggregate principal amount of the Bonds at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee or Registrar, or exercising any trust or power conferred upon the Trustee or the Registrar under this Indenture. (c) The Trustee may execute any of the trusts or powers hereof and perfonn the duties required of it hereunder by or through attorneys, agents or receivers, and shall be entitled to conclusively rely on the advice of counsel concerning all matters of trust and concerning its duties hereunder, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable care. None of the provisions contained in this Indenture shall require the Trustee or Registrar to expend or risk its own funds or otherwise incur individual financial liability in the perfonnance of any of its duties or in the exercise of any of its rights or powers. The Trustee shall have no responsibility with respect to any infonnation, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds. The Trustee shall not be deemed to have knowledge of an Event of Default hereunder, under the Loan Agreement or any other document related to the Bonds unless it shall -38? O()CSSF 1:645021.14 24 have actual knowledge at its Principal Office. The immunities extended to the Trustee also extend to its directors, officers, employees and agents. Section 8.02. Right of Trustee and Registrar to Rely upon Documents, Etc. Except as otherwise provided in Section 8.01: (a) The Trustee and the Registrar may rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, Bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and the Trustee or the Registrar, as the case may be, shall not be required to make any independent investigation into the facts or matters contained therein; (b) Any notice, request, direction, election, order or demand of the City mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the City by an Authorized City Representative, and any resolution of the City may be evidenced to the Trustee or the Registrar by a Certified Resolution; (c) The Trustee and the Registrar may consult with counsel (who may include counsel for the City or Bond Counsel) and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in the absence of negligence or willful misconduct on its part and in accordance with the opinion of such counsel; and (d) Whenever in the administration of the trusts of this Indenture the Trustee or the Registrar shall deem it necessary or. desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee or the Registrar, as the case may be, be deemed to be conclusively proved and established by a Certificate of the City; and such Certificate of the City shall, in the absence of negligence or willful misconduct on the part of the Trustee or the Registrar, as the case may be, be full warrant to the Trustee or the Registrar, as the case may be, for any action taken or suffered by it under the provisions of this Indenture upon the faith thereof. Section 8.03. Trustee and Registrar Not Responsible for Recitals. The recitals contained herein and in the Bonds shall be taken as the statements of the City, and the Trustee and the Registrar shall bear no responsibility for the correctness of the same except (with respect to the Registrar) for the Certificate of Authentication thereon. The Trustee and the Registrar make no representations as to the validity or sufficiency of this Indenture or of the Bonds. The Trustee and the Registrar shall not be accountable for the use or application by the City of any of the Bonds authenticated or delivered hereunder or of the proceeds of such Bonds except to the extent specifically provided in this Indenture. Section 8.04. Right of Trustee and Registrar to Acquire Bonds. The Trustee, the Registrar and their officers and directors (either as principal or agent) may acquire and hold, or become the pledgee of, Bonds and otherwise engage in or be interested in any financial or other -. q ff DOCSSF1:645021.14 25 transaction with the City in the manner and to the same extent and with like effect as though it were not Trustee or Registrar, as the case may be, hereunder. Section 8.05. Moneys Received by Trustee and Registrar to Be Held in Trust. Subject to the provisions of Section 10.03, all moneys received by the Trustee and the Registrar shall, until used or applied 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. The Trustee and the Registrar shall not be liable to pay interest on any moneys received by them hereunder, but shall be liable only to account for earnings on funds that have been invested pursuant to Section 5.04 hereof. Any moneys held by the Trustee or the Registrar may be deposited by it in its banking department and invested as provided herein. Section 8.06. Compensation and Indemnification of Trustee and Registrar. The Trustee and the Registrar shall be entitled to reasonable compensation for all services rendered by it in the execution of the trusts created and in the exercise and performance of any of the powers and duties hereunder of the Trustee or the Registrar, as the case may be, which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust, and the Agreement will require the Borrower to payor reimburse the Trustee or the Registrar, as the case may be, upon its request for all expenses, disbursements and advances incurred or made by the Trustee or the Registrar, as the case may be, in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise fÌ"om its negligence or willful misconduct. If any property, other than cash, shall at any time be held by the Trustee or the Registrar, as the case may be, subject to this Indenture, or any supplemental indenture, as security for the Bonds, the Trustee or the Registrar, as the case may be, if and to the extent authorized by a receivership, bankruptcy or other court of competent jurisdiction or by the instrument subjecting such property to the provisions of this Indenture as such security for the Bonds, shall be entitled (but not required) to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The Agreement will also require the Borrower to indemnify the Trustee or the Registrar, as the case may be, for, and to hold it harmless against, any loss, liability, expense or advance incurred or made without negligence or willful misconduct on the part of the Trustee or the Registrar, as the case may b~, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises. Section 8.07. Qualifications of Trustee and Registrar. There shall at all times be a trustee and a registrar hereunder which shall be financial institutions organized and doing business under the laws of the United States or of a state thereof, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least Fifty Million Dollars ($50,000,000), and be subject to supervision or examination by federal or state authorities. If such financial institutions publish reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purposes of this Section the combined capital and surplus of such financial institutions shall be deemed to be their combined capital and surplus as set forth in their most recent reports of conditions so published. In case at any time the Trustee or the Registrar shall cease to be ~-40 DOCSSFI:645021.14 26 eligible in accordance with the provisions of this Section, the Trustee or the Registrar, as the case may be, shall resign immediately in the manner and with the effect specified in Section 8.08. Section 8.08. Resignation and Removal of Trustee or Registrar and Appointment of Successor Trustee or Registrar. (a) The Trustee or Registrar may at any time resign by giving written notice to the City and the Borrower and by giving to the Bondholders notice by first class mail sent to such Bondholders. The Trustee or Registrar, as the case may be, shall also mail a copy of any such notice of its resignation to the Rating Agencies. Upon receiving such notice of resignation, the City, with the consent of the Borrower, shall promptly appoint a successor trustee or registrar, as the case may be, by an instrument in writing. If no successor trustee or registrar, as the case may be, shall have been so appointed and have accepted appointment within thirty days after the giving of such notice of resignation, the resigning trustee or registrar, as the case may be, may petition any court of competent jurisdiction for the appointment of a successor trustee or registrar, as the case may be, or any Bondholder who has been a bona fide holder of a Bond for at least six months may, on behalf of himself and others similarly situated, petition any such court for the appointment of a successor trustee or registrar, as the case may be. Such court may thereupon, after such notice, if any, as it may deem proper and may prescribe, appoint a successor trustee or registrar, as the case may be. (b) In case at any time either of the following shall occur: (1) the Trustee or Registrar shall cease to be eligible in accordance with the provisions of Section 8.07 and shall fail to resign after written request therefor by the City or by any Bondholder who has been a bona fide holder of a Bond for at least six months, or (2) the Trustee or Registrar shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or Registrar or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or Registrar or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the City (with the advice of the Borrower) may remove the Trustee or Registrar, as the case may be, and appoint a successor trustee by an instrument in writing, or any such Bondholder may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee or Registrar, as the case may be, and the appointment of a successor trustee or registrar, as the case may be. Such court may thereupon, after such notice, if any, as it may deem proper and may prescribe, remove the Trustee or Registrar, as the case may be, and appoint a successor trustee or registrar, as the case may be. (c) The City, in the absence of an Event of Default, with the advice and consent of the Borrower, or the holders of a majority in aggregate principal amount of the Bonds at the time outstanding may at any time remove the Trustee or Registrar, as the case may be, and appoint a successor trustee or registrar, as the case may be, by an instrument or concurrent instruments in writing signed by the City or such Bondholders, as the case may be. DOCSSFI:645021.14 27 ø - 1.1-1 (d) Any resignation or removal of the Trustee or Registrar, as the case may be, and appointment of a successor Trustee or Registrar, as the case may be, pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor Trustee or Registrar, as the case may be, as provided in Section 8.09. The successor Trustee or successor Registrar, as the case may be, shall mail written notice of its appointment to each Rating Agency. Section 8.09. Acceptance of Trust by Successor Trustee. Any successor trustee appointed as provided in Section 8.08 shall execute, acknowledge and deliver to the City, the Borrower and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations of its predecessor in the trusts hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the Written Request of the City or the request of the successor trustee, the trustee ceasing to act shall execute and deliver an instrument transferring to such successor trustee, upon the trusts herein expressed, all the rights, powers and trusts of the trustee so ceasing to act. Upon request of any such successor trustee, the City shall execute any and all instruments in writing necessary or desirable for more fully and certainly vesting in and confirming to such successor trustee all such rights, powers and duties. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure the amounts due it as compensation, reimbursement, expenses and indemnity afforded to it by Section 8.06. No successor trustee shall accept appointment as provided in this Section 8.09 unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 8.07. Upon acceptance of appointment by a successor trustee as provided in this Section, the City or such successor trustee shall give Bondholders notice of the succession of such trustee to the trusts hereunder in the manner prescribed in Section 8.08 for the giving of notice of resignation of the Trustee. Section 8.10. Merger or Consolidation of Trustee or Registrar. Any financial institution into which the Trustee may be merged or with which it may be consolidated, or any financial institution resulting from any merger or consolidation to which the Trustee or Registrar shall be a party, or any financial institution succeeding to substantially all of the corporate trust business of the Trustee or Registrar, shall be the successor of the Trustee or Registrar hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding, provided that such successor trustee or registrar shall be eligible under the provisions of Section 8.07. Section 8.11. Accounting Records and Reports. The Trustee and Registrar shall keep proper books of record and account in accordance with industry standards in which complete and correct entries shall be made of all transactions made by the Trustee relating to the receipt, investment, disbursement, allocation and application of the Revenues and the proceeds of the Bonds. To the extent the Borrower directs the Trustee with respect to the investment of moneys in any fund or account, the Borrower shall provide the Trustee with the records required /~-~~~ DOCSSFl:645021.I4 28 by this Section 8.11. Such records shall specify the account or fund to which each investment (or portion thereof) held by the Trustee is to be allocated and shall set forth, in the case of each Investment Security, (a) its purchase price, (b) its value at maturity or its sale price, as the case may be, (c) the amounts and dates of any payments to be made with respect thereto and (d) such documentation and evidence as is required to be obtained by the Borrower to establish that the requirements of Article V of the Tax Certificate have been met. Such records shall be open to inspection by the City, the Borrower and any Bondholder at any reasonable time during regular business hours on reasonable notice. The Trustee shall furnish to the City monthly statements of all investments made by the Trustee and all funds and accounts held by the Trustee. Section 8.12. Registrars. The City, at the request of the Borrower, shall appoint a registrar for the Bonds. Each Registrar shall be a bank, trust company, national banking association or other financial institution which meets the qualifications of Section 8.07 hereof, willing and able to accept the office on reasonable and customary terms and authorized by law to perform all the duties imposed upon it hereby. Each Registrar shall signify its acceptance of the duties and obligations imposed upon it hereby by executing and delivering to the City and the Trustee a written acceptance thereof. The Registrar initially appointed hereunder is the Trustee. Unless otherwise provided by the City with the consent of the Borrower and the Trustee, the Tender Agent shall serve as the Registrar under this Indenture. Section 8.13. Tax Certificate. The Trustee covenants and agrees that it will comply with all instructions of the Borrower given pursuant to the Tax Certificate. The Trustee acknowledges receipt of the Tax Certificate and acknowledges that the provisions of the Tax Certificate are incorporated herein by reference as provided in Section 6.06; provided, however, that the Trustee makes no representation or warranty with respect to the current or future federal tax status of interest on the Bonds. ARTICLE IX MODIFICATION OF INDENTURE, DOCUMENTS Section 9.01. Modification without Consent of Bondholders. The City and the Trustee, without the consent of any Bondholders, from time to time and at any time, and subject to the conditions and restrictions in this Indenture contained, may enter into an indenture or indentures supplemental hereto, which indenture or indentures thereafter shall form a part hereof; and the Trustee, without the consent of any Bondholders, from time to time and at any time, may consent to an amendment or modification to the Agreement or to any other document, instrument or agreement relating to the Project or the security for the Bonds; in each case for anyone or more of the following purposes: (a) to add to the covenants and agreements of the City contained in this Indenture, or of the Borrower contained in the Agreement or such other document, other covenants and agreements thereafter to be observed, or to assign or pledge additional security for the Bonds, or to surrender any right or power reserved to or conferred upon the City herein or the Borrower in the Agreement or such other document; provided, that no such covenant, agreement, assignment, pledge or surrender shall materially adversely affect the interests of the holders of the Bonds; DOCSSFI:645021.14 29 d'~ (b) to make such provisions for the purpose of curing any ambiguity, inconsistency or omission, or of curing, correcting or supplementing any defective provision contained in this Indenture or in the Agreement or such other document, or in regard to matters or questions arising under this Indenture, the Agreement or such other document, as the City may deem necessary or desirable and not inconsistent with this Indenture and which shall not materially adversely affect the interests of the holders of the Bonds; (c) to modify, amend or supplement this Indenture or any supplemental indenture in such manner as to pennit the qualification hereof or thereof under the Trust Indenture Act of 1939 or any similar federal statute hereafter in effect, and, if they so detennine, to add to this Indenture or any supplemental indenture such other tenns, conditions and provisions as may be pennitted by said Trust Indenture Act of 1939 or similar federal statute, and which shall not adversely affect the interests of the holders of the Bonds; (d) to provide for any additional procedures, covenants or agreements necessary to maintain the exclusion of interest on the Bonds from gross income for federal income tax purposes; (e) to provide for, modify or eliminate a book-entry registration system for the Bonds; (f) to provide for the procedures required to pennit any Bondholder to separate the right to receive interest on the Bonds from the right to receive principal thereof and to sell or dispose of such rights, as contemplated by Section 1286 of the Code; (g) to provide for the appointment of a co-trustee or the succession of a new Trustee, Registrar or Paying Agent; (h) to change Exhibit A to the Agreement in accordance with the provisions thereof; (i) to substitute or provide for a Credit Facility; (j) in connection with any other change which, in the judgment of the Trustee, which may be based upon an Opinion of Counsel, will not adversely affect the security for the Bonds or the exclusion from gross income of interest thereon for federal income tax purposes or otherwise materially adversely affect the holders of the Bonds; or (k) to modify, alter, amend or supplement this Indenture or the Agreement or other document in any other respect, including amendments which would otherwise be described in Section 9.02 hereof, if the effective date of such amendment is a date on which all Bonds affected thereby are subject to mandatory tender for purchase pursuant to Section 2.02(b) of the Multi-Mode Annex or if Notice by Mail of the proposed supplemental indenture or amendment is given to holders of the affected Bonds at least thirty (30) days before the effective date thereof and, on or before such effective date, d--lf~ DOCSSFI:645021.14 30 such Bondholders have the right to demand purchase of their Bonds pursuant to Section 2.02(a) of the Multi-Mode Annex. Any supplemental indenture or amendment authorized by the provisions of this Section may be executed by the City and the Trustee without the consent of (or notice to) the holders of any of the Bonds at the time outstanding, notwithstanding any of the provisions of Section 9.02, but (i) the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise; (ii) so long as no Event of Default shall have occurred and be continuing, the Trustee shall not enter into any such supplemental indenture which affects the rights or obligations of the Borrower hereunder or under the Agreement without first obtaining the written consent of the Borrower; and (iii) the City shall not be obligated to enter into any such supplemental indenture. The Trustee will give notice of the provisions of any supplemental indenture authorized by the provisions of this Section to each Bondholder at its address as it appears on the registration books of the Registrar and to the Rating Agencies. Any supplemental indenture or amendment to the Agreement or other document pennitted pursuant to this Section 9.01 may be approved by an Authorized City Representative and need not be approved by resolution or other action of the City Council of the City. Section 9.02. Modification with Consent of Bondholders. With the consent of the holders of not less than sixty percent (60%) in aggregate principal amount of the Bonds at the time outstanding, evidenced as provided in Section 11.06, (i) the City and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the. purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture; or (ii) the Trustee may consent to any of the matters for which its consent is required pursuant to Section 6.04 hereof, including any amendment to or modification of the Agreement or any other document relating to the Project or the security for the Bonds; provided, however, that, except as provided in Section 9.01, no such amendment or modification will have the effect of extending the time for payment or reducing any amount due and payable by the Borrower pursuant to the Agreement without the consent of all the holders of the Bonds; and that no such supplemental indenture shall (1) extend the fixed maturity of any Bond or reduce the rate of interest thereon or extend the time of payment of interest, or reduce the amount of the principal thereof, or reduce any premium payable on the redemption thereof, without the consent of the holder of each Bond so affected, or (2) reduce the aforesaid percentage of holders of Bonds whose consent is required for the execution of such supplemental indenture, or pennit the creation of any lien on the Revenues prior to or on a parity with the lien of this Indenture, except as pennitted herein, or pennit the creation of any preference of any Bondholder over any other Bondholder or deprive the holders of the Bonds of the lien created by this Indenture upon the Revenues or the pledge of any Credit Facility, without the consent of the holders of all the Bonds then outstanding. Nothing in this paragraph shall be construed as making necessary the approval of any Bondholder of any supplemental indenture pennitted by the provisions of Section 9.01. Upon receipt by the Trustee of a request for the execution of any such supplemental indenture or amendment, and upon the filing with the Trustee of evidence of the consent of Bondholders, as aforesaid, the Trustee shall join with the City in the execution of such supplemental indenture or shall consent to such amendment, unless (i) such supplemental ..». DOCSSFI :645021.14 31 indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture; or (ii) such supplemental indenture or such amendment affects the rights or obligations of the Borrower hereunder or under the Agreement, in which case the Trustee shall enter into such supplemental indenture or shall consent to such amendment only if the Trustee has received the Borrower's written consent thereto. It shall not be necessary for the consent of the Bondholders under this Section to approve the particular fonn of any proposed supplemental indenture or amendment, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the parties thereto of any supplemental indenture or amendment to the Agreement or other document as provided in this Section, the Trustee shall mail a notice, setting forth in general tenns the substance of such supplemental indenture or such amendment, to each Bondholder at the address contained in the bond register maintained by the Registrar and to each Marketing Party and the Rating Agencies. Any failure of the Trustee to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or such amendment. Section 9.03. Effect of Supplemental Indenture or Amendment. Upon the execution of any supplemental indenture or any amendment to the Agreement pursuant to the provisions of this Article IX, this Indenture or the Agreement, as the case may be, shall be and be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture and the Agreement of the City, the Trustee, the Borrower and all holders of outstanding Bonds shall thereafter be detennined, exercised and enforced hereunder and under the Agreement subject in all respects to such modifications and amendments, and all the tenns and conditions of any such supplemental indenture or amendment shall be part of the tenns and conditions of this Indenture or the Agreement, as the case may be, for any and all purposes. Section 9.04. Required and Pennitted Opinions of Counsel. Subject to the provisions of Section 8.01, the Trustee may receive an Opinion of Counsel as conclusive evidence that any supplemental indenture or amendment executed pursuant to the provisions of this Article IX complies with the requirements of this Article Ix. No supplemental indenture or amendment or modification to the Agreement or any other document relating to the Project or the Bonds shall be effective until the City and the Trustee shall have received an Opinion of Bond Counsel to the effect that such supplemental indenture or such amendment or modification is pennitted by the Law and will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes. Section 9.05. Notation of Modification on Bonds: Preparation of New Bonds. The City or the Trustee may require that Bonds authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article IX bear a notation, in fonn approved by the Trustee, as to any matter provided for in such supplemental indenture, and if such supplemental indenture shall so provide, new Bonds, so modified as to confonn, in the opinion of the Trustee and the City, to any modification of this Indenture contained in any such supplemental indenture, shall be prepared by the City, authenticated by the Trustee and delivered DOCSSFI :645021.14 32 ~-Lf(p without cost to the holders of the Bonds then outstanding, upon surrender for cancellation of such Bonds in equal aggregate principal amounts. ARTICLE X DEFEASANCE Section 10.01. Discharge of Indenture. If the entire indebtedness on all Bonds outstanding shall be paid and discharged in anyone or more of the following ways: (a) by the payment ofthe principal of, and premium, if any, and interest on all Bonds outstanding, as and when the same become due and payable; or (b) by the delivery to the Registrar, for cancellation by it, of all Bonds outstanding; and if all other sums payable hereunder by the City shall be paid and discharged, then thereupon this Indenture shall cease, tenninate and become null and void, and thereupon the Trustee shall, upon Written Request of the City, and upon receipt by the Trustee of a Certificate of the City and an Opinion of Counsel, each stating that in the opinion of the signers all conditions precedent to the satisfaction and discharge of this Indenture have been complied with, forthwith execute proper instruments acknowledging satisfaction of and discharging this Indenture. The Trustee shall mail written notice of such payment and discharge to the Rating Agencies. The satisfaction and discharge of this Indenture shall be without prejudice to the rights of the Trustee to charge and be reimbursed by the Borrower for any expenditures which it may thereafter incur in connection herewith. Any Bond or Authorized Denomination thereof shall be deemed to be paid within the meaning of this Indenture when (a) payment of the principal of and premium, if any, on such Bond or Authorized Denomination thereof, plus interest thereon to the due date thereof (whether such due date is by reason of maturity or upon redemption as provided herein) either (i) shall have been made or caused to be made in accordance with the tenus thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee in trust and irrevocably setting aside exclusively for such payment (1) moneys sufficient to make such payment and/or (2) nonprepayable, noncallable Government Obligations maturing as to principal and interest in such amount and at such time as will insure, without reinvestment, the availability of sufficient moneys to make such payment (as confinned by the report of an escrow verification agent delivered to the Trustee), and (b) all necessary and proper fees, compensation and expenses of the Trustee pertaining to any such deposit shall have been paid or the payment thereof provided for to the satisfaction of the Trustee; provided that no Bond shall be deemed to be paid within the meaning of this Indenture unless arrangements satisfactory to the Trustee shall have been made to assure that Bonds tendered for purchase in accordance with Section 2.02(a) or (b) of the Multi-Mode Annex can be paid and redeemed from such moneys and/or Government Obligations. At such time as a Bond or Authorized Denomination thereof shall be deemed to be paid hereunder, as aforesaid, such Bond or Authorized Denomination thereof shall no longer be secured by or entitled to the benefits of this Indenture, except for the purposes of any such payment from such moneys or Government Obligations. DOCSSF 1:645021.14 33 The City or the Borrower may at any time surrender to the Registrar for cancellation by it any Bonds previously authenticated and delivered which the City or the Borrower lawfully may have acquired in any manner whatsoever, and such Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired. Section 10.02. Discharge of Liability on Bonds. Upon the deposit with the Trustee, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.04) to payor redeem outstanding Bonds (whether upon or prior to their maturity or the redemption date of such Bonds), provided that, if such Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article IV of the Multi-Mode Annex provided or provision satisfactory to the Trustee shall have been made for giving such notice, all liability of the City and the Borrower in respect of such Bonds shall cease, terminate and be completely discharged, except that the City and Borrower shall remain liable for such payment but only from, and the Bondholders shall thereafter be entitled only to payment (without interest accrued thereon after such redemption date or maturity date) out of, the money deposited with the Trustee as aforesaid for their payment, subject, however, to the provisions of Sections 6.06 and 10.03; provided that no Bond shall be deemed to be paid within the meaning of this Indenture unless arrangements satisfactory to the Trustee shall have been made to assure that Bonds tendered for purchase in accordance with Section 2.02(a) or (b) of the Multi-Mode Annex can be paid and redeemed from such moneys and/or Government Obligations. Section 10.03. Payment of Bonds after Discharge of Indenture. Notwithstanding any provisions of this Indenture, and subject to applicable laws of the State of California, any moneys deposited with the Trustee or any Paying Agent, in trust for the payment of the principal of, or interest or premium on, any Bonds remaining unclaimed for two years after the principal of all the outstanding Bonds has become due and payable (whether at maturity or upon call for redemption or by declaration as provided in this Indenture), shall then be repaid to the Borrower upon its written request, and the holders of such Bonds shall thereafter be entitled to look only to the Borrower for payment thereof, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease; provided, however, that before the repayment of such moneys to the Borrower as aforesaid, the Trustee or paying agent, as the case may be, shall (at the request and cost of the Borrower) first publish at least once in a Qualified Newspaper a notice, in such form as may be deemed appropriate by the Borrower, in respect of the Bonds so payable and not presented and in respect of the provisions relating to the repayment to the Borrower of the moneys held for the payment thereof. In the event of the repayment of any such moneys to the Borrower as aforesaid, the holders of the Bonds in respect of which such moneys were deposited shall thereafter be deemed to be unsecured creditors of the Borrower for amounts equivalent. to the respective amounts deposited for the payment of such Bonds and so repaid to the Borrower (without interest thereon). Section 10.04. Deposit of Money or Securities with Trustee. Whenever in this Indenture it is provided or permitted that there be deposited with or held in trust by the Trustee money or securities in the necessary amount to payor redeem any Bonds, the money or securities so to be deposited or held may include money or securities held by the Trustee in the funds and accounts established pursuant to this Indenture and shall be: 4" ... . à DOCSSFl:645021.14 34 (a) lawful money of the United States of America in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity, except that, in the case of Bonds which are to be redeemed prior to maturity and in respect of which notice of such redemption shall have been given as provided in Article IV the Multi- Mode Annex or provision satisfactory to the Trustee shall have been made for the giving of such notice, the amount to be deposited or held shall be the principal amount or redemption price of such Bonds and all unpaid interest thereon to the redemption date; or (b) nonprepayable, noncallable Government Obligations the principal of and the interest on which when due will provide money sufficient to pay the principal or redemption price of and all unpaid interest to maturity, or to the redemption date, as the case may be, on the Bonds to be paid or redeemed, as such principal or redemption price and interest become due, provided that, in the case of Bonds which are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV the Multi-Mode Annex or provision satisfactory to the Trustee shall have been made for the giving of such notice; provided, in each case, that the Trustee shall have been irrevocably instructed (by the terms of this Indenture or by Written Request of the City) to apply such money to the payment of such principal or redemption price and interest with respect to such Bonds. ARTICLE XI MISCELLANEOUS Section 11.01. Successors of City. All the covenants, stipulations, promises and agreements in this Indenture contained, by or on behalf of the City, shall bind and inure to the benefit of its successors and assigns, whether so expressed or not. If any of the powers or duties of the City shall hereafter be transferred by any law of the State of California, and if such transfer shall relate to any matter or thing permitted or required to be done under this Indenture by the City, then the body or official of the State of California who shall succeed to such powers or duties shall act and be obligated in the place and stead of the City as provided in this Indenture. Section 11.02. Limitation of Rights to Parties and Bondholders. Nothing in this Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any person other than the City, the Trustee, the Borrower and the holders of the Bonds issued hereunder any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the City, the Trustee, the Borrower and the holders of the Bonds issued hereunder. Section 11.03. Waiver of Notice. Whenever in this Indenture the giving of notice by mail or otherwise is required, the giving of such notice may be waived in writing by the person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waIver. DOCSSFI :645021.14 35 d - Ltc, Section 11.04. Separability of Invalid Provisions. In case anyone or more of the provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Indenture, but this Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. Section 11.05. Notices. It shall be sufficient service of any notice, request, complaint, demand or other paper on the City, the Trustee or the Borrower if the same shall be duly mailed by first class mail, postage prepaid, addressed as follows: To the City (2 copies): City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 1st copy: Attention: Director of Finance 2nd copy: Attention: City Attorney To the Trustee: U.S. Bank, N.A. 550 South Hope Street Suite 500 Los Angeles, CA 90071 Attention: Corporate Trust Division To the Borrower: San Diego Gas & Electric Company c/o Sempra Energy Attention: Treasurer 101 Ash Street San Diego, CA 92101-3017 A notice, request, complaint, demand or other paper to any Marketing Party shall be given by first class mail, postage prepaid, addressed to such Marketing Party at its Principal Office. The City, the Trustee and the Borrower may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. A duplicate copy of each notice, certificate or other communication given hereunder by the City or the Trustee to the other shall also be given to the Borrower. Unless otherwise requested by the City, the Trustee or the Borrower, any notice required to be given hereunder in writing may be given by any form of telephonic or electronic transmission capable of making a written record. Any notice required to be given hereunder to the Rating Agencies, as well as a duplicate copy of each notice given hereunder by the Trustee to the holders of the Bonds, shall be given by the Trustee via first-class mail to the following two Rating Agencies at the following respective addresses (or at such different addresses as may be specified in writing to the Trustee by the respective Rating Agencies): Standard & Poor's, 25 Broadway, New York, New York 10004, Attention: Corporate Ratings Department; Moody's Investors Service, 99 Church Street, 4th Floor, New York, New York 10007, Attention: Corporate Department. Notwithstanding the foregoing, it is expressly understood and agreed that failure to provide any such notice to any Rating Agency pursuant to this Section or any other provision of this Indenture or the Agreement DOCSSFI:645021.14 36 ~.æ50 or any defect therein will not affect the validity of any action with respect to which notice is to be given or the effectiveness of any such action. Section 11.06. Evidence of Rights of Bondholders. (a) Any request, consent or other instrument required by this Indenture to be signed and executed by Bondholders may be in any number of concurrent writings of substantially similar tenor and may be signed or executed by such Bondholders in person or by 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, the Registrar and the City if made in the manner provided in this Section. (b) 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. (c) The ownership of registered Bonds shall be proved by the Bond register maintained by the Registrar pursuant to Section 2.04 hereof. The fact and the date of execution of any request, consent or other instrument may also be proved in any other manner which the Trustee may deem sufficient. The Trustee may nevertheless, in its discretion, require further proof in cases where it may deem further proof desirable. Any request, consent or vote of the holder of any Bond shall bind every future holder of the same Bond and the holder 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 City in pursuance of such request, consent or vote. (d) In determining whether the holders of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are owned by the City, by the Borrower or by any other direct or indirect obligor on the Bonds, or by any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the City, the Borrower, or any other direct or indirect obligor on the Bonds, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, provided that, for the purpose of determining whether the Trustee shall be protected in relying on any such demand, request, direction, consent or waiver, only Bonds which the Trustee knows to be so owned shall be disregarded. Bonds so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this subsection (d) if the pledgee shall certify to the Trustee the pledgee's right to vote such Bonds and that the pledgee is not a person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the City, the Borrower or any other direct or indirect obligor on the Bonds. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Notwithstanding the foregoing, if the Borrower owns 100% of the Bonds outstanding, the Borrower shall be the holder of the Bonds for determining such requisite principal amount, provided the Borrower I DOCSSFI :645021.14 37 provides to the Trustee an Opinion of Bond Counsel to the effect that such actions are not prohibited by the Law and will not cause interest on the Bonds to become includable in gross income for federal income tax purposes. Section 11.07. Waiver of Personal Liability. No City Council member, officer, agent or employee of the City, and no officer, official, agent or employee of the State of California or any department, board or agency of the City or the State of California shall be individually or personally liable for the payment of the principal of or premium or interest on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such member, officer, agent or employee from the performance of any official duty provided by law or by this Indenture. Section 11.08. Publication of Notices. Any publication of notice to be made under the provisions of this Indenture may be made in each instance upon any business day of the week, and, except as provided in Section 10.03, no such publication shall be required if such notice is given by first class mail to the holders of all Bonds then outstanding. Section 11.09. Prevailing Law. This Indenture shall be governed by the laws of the State of California. Section 11.10. Execution in Several Counterparts. This Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the City and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument. Section 11.11. Continuing Disclosure. Pursuant to Section 5.10 of the Agreement, the Borrower shall undertake any applicable continuing disclosure requirements for the Bonds as promulgated under Rule 15c2-12, as it may from time to time hereafter be amended or supplemented, and the City shall have no liability to the holders of such Bonds or any other person with respect to such disclosure matters. Notwithstanding any other provision of this Indenture, failure of the Borrower to comply with the requirements of Rule 15c2-12 applicable to the Bonds, as it may from time to time hereafter be amended or supplemented, shall not be considered an Event of Default hereunder or under the Agreement; however, any Bondholder or beneficial owner of Bonds may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the Borrower to comply with its obligations under Section 5.10 of the Agreement. DOCSSFI :645021.14 38 ~~ IN WITNESS WHEREOF, the City has caused this Indenture to be signed in its name and its seal to be hereunto affixed and attested by its duly authorized officers, respectively, and the Trustee, in token of its acceptance of the trust created hereunder, has caused this Indenture to be signed in its name by its duly authorized officer, all as of the day and year fIrst above written. CITY OF CHULA VISTA By Mayor [SEAL] Attest: City Clerk APPROVED AS TO FORM: ANN MOORE CITY ATTORNEY By [Title] U.S. BANK, N.A., as Trustee By Authorized Officer Attest: Authorized Officer 39 d :3 DOCSSFI :645021.14 APPENDIX A [FORM OF BOND TO BE UPDATED] $ .00 No. - UNITED STATES OF AMERICA STATE OF CALIFORNIA CITY OF CHULA VISTA INDUSTRIAL DEVELOPMENT REVENUE REFUNDING BOND (SAN DIEGO GAS & ELECTRIC COMPANY) 200 SERIES - NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY OF CHULA VISTA OR THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THIS BOND. [For Non Book-Entry Variable Tenn Rate Periods Only Number of Days Mandatory Amount of Interest in Variable Purchase and Interest Due for Variable Tenn Segment Payment Date T enn Segment -- $ 1 DATED DATE INTEREST RATE MA TURITY DATE CUSIP ,200 - ~%] [Variable] REGISTERED HOLDER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The CITY OF CHULA VISTA, a municipal corporation and charter city duly organized and existing under the laws and Constitution of the State of California (the "City"), for value received, hereby promises to pay (but only out of Revenues as hereinafter provided) to the registered holder identified above or registered assigns, on the maturity date set forth above, the principal amount set forth above and to pay (but only out of the sources hereinafter provided) interest on the balance of said principal amount ITom time to time remaining unpaid ITom and including the date hereof until payment of said principal amount has been made or duly provided for, at the rates and on the dates detennined as described herein and in the Indenture (as hereinafter defined), and to pay (but only out of the sources hereinafter provided) interest on overdue principal and, to the extent pennitted by law, on overdue interest at the rate [set forth above][ detennined as provided in the Indenture], except as the provisions hereinafter set forth with respect to redemption, tender or acceleration prior to maturity may become applicable DOCSSFI:645021.14 A-I d~5Af hereto. The principal of and premium, if any, on this Bond (as hereinafter derIDed) are payable in lawful money of the United States of America at the principal office (the "Principal Office") of , or its successors and assigns, as Paying Agent (the "Paying Agent"), which office is initially located at Interest payments on this Bond shall be made by the Paying Agent to the registered owner hereof as provided in the Indenture. This Bond is one of a duly authorized issue of bonds of the City designated as the "City of Chula Vista Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 200- Series -" (the "Bonds"), limited in aggregate principal amount as provided in, and issued under and secured by, an Indenture of Trust (herein called the "Indenture"), dated as of r 1, 200j, between the City and , as trustee (the "Trustee"). Reference is hereby made to the Indenture and all indentures supplemental thereto for a description of the rights thereunder of the registered owners of the Bonds, of the nature and extent of the security, of the rights, duties and immunities of the Trustee and of the rights and obligations of the City thereunder, to all of the provisions of which Indenture the holder of this Bond, by acceptance hereof, assents and agrees. The Bonds are authorized to be issued pursuant to the provisions of Chapter 3.48 of the Chula Vista Municipal Code, as amended and supplemented to the date hereof (the "Law"). The Bonds are limited obligations of the City and, as and to the extent set forth in the Indenture, are payable solely from, and secured by a pledge of and lien on, the Revenues (as that term is defined in the Indenture), consisting primarily of loan repayments made by San Diego Gas & Electric Company (the "Borrower") under the terms of a Loan Agreement, dated as of r 1, 200 -.J (the "Agreement"), between the City and the Borrower. The Bonds, together with certain other bonds of the City, are all issued under and equally and ratably secured by and entitled to the benefits of the Indenture, including the security of a pledge and assignment of certain revenues and receipts derived by the City pursuant to the Agreement and any Credit Facility, as described herein, and all receipts of the Trustee credited under the provisions of the Indenture against such payments and from any other moneys held by the Trustee under the Indenture for such purpose, and there shall be no other recourse against the City or any property now or hereafter owned by it. The Borrower may, at its option, cause a Credit Facility to be in effect, which may be a letter of credit, guarantee, standby purchase agreement, mortgage bonds, debentures or other support arrangement or security. Interest on this Bond shall be payable at the times and in the amounts determined in accordance with the provisions of the Indenture. REFERENCE IS MADE TO THE FURTHER PROVISIONS RELATING TO THE DETERMINATION OF THE RATE AND AMOUNT OF INTEREST ON THIS BOND SET FORTH IN THE INDENTURE, WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH HEREIN. This Bond shall be deliverable in the form of registered Bonds without coupons in Authorized Denominations, as defined in the Indenture. In no event shall the interest rate on this Bond be greater than [14%] per annum. DOCSSFI :645021.14 A-2 This Bond is subject to acceleration, redemption and mandatory or optional tender for purchase prior to maturity upon the circumstances, at the times, in the amounts, upon payment of the amounts, with the notice, upon the other tenus and provisions and with the effect set forth in the Indenture. Neither the members of the City Council nor any person executing this Bond shall be liable personally on this Bond or be subject to any personal liability or accountability by reason of the issuance thereof. No recourse shall be had for the payment of the principal of, premium, if any, or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement in the Indenture contained, against any past, present or future City Council member, director, officer, employee or agent of the City, or through the City, or any successor to the City, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such member, director, officer, employee or agent as such is hereby expressly waived and released as a condition of and in consideration for the execution of the Indenture and the issuance of any of the Bonds. The holder of this Bond shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any Event of Default (as defined in the Indenture), or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Indenture. If an Event of Default occurs and is continuing, the principal of all Bonds then outstanding issued under the Indenture may be declared due and payable upon the conditions and in the manner and with the effect provided in the Indenture. Subject to the limitations and upon payment of the charges, if any, provided in the Indenture, Bonds may be exchanged at the Principal Office of the Registrar for a like aggregate principal amount of Bonds of like tenor in Authorized Denominations. This Bond is transferable by the registered holder hereof, in person, or by its attorney duly authorized in writing, at the principal office of the Registrar, 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 like tenor in Authorized Denominations, for the same aggregate principal amount, will be issued to the transferee in exchange herefor; provided that if moneys for the purchase of this Bond have been deposited with the Tender Agent, this Bond is not transferable to anyone until delivered to the Tender Agent. The City, the Registrar, the Trustee, any Paying Agent and any agent of the City, the Registrar, the Trustee or any Paying Agent may treat the person in whose name this Bond is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Bond be overdue, and neither the City, the Registrar, the Trustee, any Paying Agent nor any such agent shall be affected by notice to the contrary. The Indenture contains provisions pennitting the City and the Trustee to execute supplemental indentures amending the Indenture under tenus and conditions set forth therein, in certain cases without the consent of any holders of the Bonds. DOCSSF1:645021.14 A-3 ;¡..S~ The Indenture prescribes the manner in which it may be discharged and after which the Bonds shall no longer be secUred by or entitled to the benefits of the Indenture, except for the purposes of registration and exchange of Bonds and of payment of the principal of and redemption premium, if any, and interest on the Bonds as the same become due and payable, including a provision that under certain circumstances the Bonds shall be deemed to be paid if Government Obligations, as derIDed therein, maturing as to principal and interest in such amounts and at such times as to insure the availability of sufficient moneys to pay the principal of, premium, if any, and interest on the Bonds and all necessary and proper fees, compensation and expenses of the Trustee, shall have been deposited with the Trustee. It is hereby certified that all of the conditions, things and acts that have been required of the City 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 Law and by the Constitution and statutes of the State of California and that the amount of this Bond, together with all other indebtedness of the City, does not exceed any limit prescribed by the Constitution or statutes of the State of California. This Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon endorsed shall have been signed by the Registrar or the Tender Agent. DOCSSFI:645021.14 A-4 IN WITNESS WHEREOF, the City of Chula Vista has caused this Bond to be executed in its name and on its behalf by the facsimile signature of its Mayor and attested by the facsimile signature of its City Clerk and its seal to be reproduced hereon, all as of the Dated Date set forth above. CITY OF CHULA VISTA By Mayor [SEAL] ATTEST: City Clerk A-5 ;;; ~ DOCSSFI:645021.14 [Fonn of] CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds described in the within-mentioned Indenture of Trust. Date of Authentication: [REGISTRAR], [TENDER AGENT], as Registrar as Tender Agent OR By By Authorized Signatory Authorized Signatory - DOCSSFl:645021.14 A-6 ;ì [ABBREVIATIONS] The following abbreviations, when used in the inscription on the face of the within bond and in the assignment below, shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM-- as tenants in common TEN ENT -- as tenants by the entireties JT TEN-- as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list. UNIF GIFT/TRAN MIN ACT-- Custodian (Cust) (Minor) Under Uniform Gifts/Transfer to Minors Act (State) [FORM OF ASSIGNMENT] FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Print or Typewrite Name and Address of Assignee and Social Security or Other Identifying Number of Assignee) the within Bond and hereby irrevocably constitutes and appoints attorney to register the transfer of said Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature: SIGNA TURE GUARANTEED: NOTICE: Signature(s) must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Registrar or the Tender Agent. DOCSSFI:645021.14 A-7 ;;) -&0 APPENDIX B MULTI-MODE ANNEX "^, DOCSSFI:645021.14 B-1 OH&S DRAFT 3/19/04 INDENTURE OF TRUST Between CITY OF CHULA VISTA And U.S. BANK, N.A., as Trustee Dated as of r 1,200-.J Relating to City of Chula Vista Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) $ 200 Series - DOCSSFI :645021.14 d~~ TABLE OF CONTENTS Page ARTICLE I DEFINITIONS.................................................................................................2 Section 1.01. Definitions............................................................................................2 Section 1.02. Number and Gender.................................... """'" """"""""""" .......... 9 Section 1.03. Articles, Sections, Etc ..........................................................................9 Section 1.04. Content of Certificates and Opinions................................................... 9 ARTICLE II THE BONDS ................................................................................................. 10 Section 2.01. Authorization and Tenns of Bonds.................................................... 10 Section 2.02. Execution of Bonds......................... ....... ............. ............................... 12 Section 2.03. Transfer and Exchange of Bonds .......... .............. ................. .............. 13 Section 2.04. Bond Register.............. ............................... ......... """"'" .................... 13 Section 2.05. Temporary Bonds....... ......................................... ........... """"""" ...... 13 Section 2.06. Bonds Mutilated, Lost, Destroyed or Stolen...................................... 14 ARTICLE III IS SU ANCE OF BONDS.. ...... ................................................... ................ .... 14 Section 3.01. Authentication and Delivery of Bonds .............................................. 14 Section 3.02. Application of Proceeds of Bonds.. ........ ............ ............................... 14 ARTICLE IV REDEMPTION ..... ................................................................ ..... """""""""" 15 Section 4.01. Redemption... ..................................................................................... 15 ARTICLE V REVENUES............. .................... ................................. ............................ ..... 15 Section 5.01. Pledge of Revenues......... ........................ "'" ..... ....................... "" ...... 15 Section 5.02. Bond Fund..... ............ ... '" ......... ........................................... """"""'" 15 Section 5.03. Trustee Authorized to Realize Moneys Under any Credit Facility........... .................... .... ....... """""" """'" ................................ 16 Section 5.04. Investment of Moneys.. ......... ...... """"""" ....................... .................. 16 Section 5.05. Assignment to Trustee; Enforcement of Obligations......................... 17 Section 5.06. Repayment to Borrower............. """"" """""""" """""""""" .......... 17 ARTICLE VI COVENANTS OF THE CITY...................................................................... 17 Section 6.01. Payment of Principal and Interest...................................................... 17 Section 6.02. Extension or Funding of Claims for Interest...................................... 18 Section 6.03. Paying Agents ............. .................... """"""""'" """""""'" """"""'" 18 Section 6.04. Preservation of Revenues..... """"""" """"'" ......... ............ ................ 18 DOCSSFI:645021.14 -}- TABLE OF CONTENTS ( continued) Page Section 6.05. Compliance with Indenture .................... ....... """""" """" ................. 18 Section 6.06. Arbitrage Covenants; Rebate Fund.................................................... 18 Section 6.07. Other Liens.............. """"'" ............ .......... .......................................... 19 Section 6.08. Further Assurances... ................ .......................................................... 19 ARTICLE VII DEFAULT ...... ................ """"""""" ................... ................ ............ .............. 19 Section 7.01. Events of Default; Acceleration; Waiver of Default.......................... 19 Section 7.02. Institution of Legal Proceedings by Trustee ...................................... 21 Section 7.03. Application of Moneys Collected by Trustee .................................... 21 Section 7.04. Effect of Delay or Omission to Pursue Remedy................................ 22 Section 7.05. Remedies Cumulative................... ........... .................. ............... """'" 22 Section 7.06. Covenant to Pay Bonds in Event of Default...................................... 22 Section 7.07. Trustee Appointed Agent for Bondhòlders........................................ 22 Section 7.08. Power of Trustee to Control Proceedings .......................................... 22 Section 7.09. Limitation on Bondholders' Right to Sue.......................................... 23 Section 7.10. Limitation of Liability to Revenues ........................... """'" """"""'" 23 ARTICLE VIII THE TRUSTEE AND THE REGISTRAR.................................................... 24 Section 8.01. Duties, Immunities and Liabilities of Trustee and Registrar .............24 Section 8.02. Right of Trustee and Registrar to Rely upon Documents, Etc........... 25 Section 8.03. Trustee and Registrar Not Responsible for Recitals ..........................26 Section 8.04. Right of Trustee and Registrar to Acquire Bonds.............................. 26 Section 8.05. Moneys Received by Trustee and Registrar to Be Held in Trust ......26 Section 8.06. Compensation and Indemnification of Trustee and Registrar """"'" 26 Section 8.07. Qualifications of Trustee and Registrar .............................................27 Section 8.08. Resignation and Removal of Trustee or Registrar and Appointment of Successor Trustee or Registrar ................................ 27 Section 8.09. Acceptance of Trust by Successor Trustee ........................................ 28 Section 8.1 O. Merger or Consolidation of Trustee or Registrar............................... 29 Section 8.11. Accounting Records and Reports..... .................. ............. """""'" """ 29 Section 8.12. Registrars ...........................................................................................29 Section 8.13. Tax Certificate ...................................................................................29 DOCSSFI :645021.14 -11- TABLE OF CONTENTS (continued) Page ARTICLE IX MODIFICA TION OF INDENTURE, DOCUMENTS ................................. 30 Section 9.01. Modification without Consent of Bondholders.................................. 30 Section 9.02. Modification with Consent of Bondholders....................................... 32 Section 9.03. Effect of Supplemental Indenture or Amendment ............................. 33 Section 9.04. Required and Permitted Opinions of Counsel ...................................33 Section 9.05. Notation of Modification on Bonds; Preparation of New Bonds """ 33 ARTICLE X DEFEASANCE..............................................................................................33 Section 10.01. Discharge of Indenture.................... ................. .................................. 33 Section 10.02. Discharge of Liability on Bonds ....... ......... """ """"""""""""'" ....... 34 Section 10.03. Payment of Bonds after Discharge oflndenture................................ 35 Section 10.04. Deposit of Money or Securities with Trustee .................................... 35 ARTICLE XI MISCELLANEOUS .................................................................. ........ ........ .... 36 Section 11.01. Successors of City ..............................................................................36 Section 11.02. Limitation of Rights to Parties and Bondholders............................... 36 Section 11.03. Waiver of Notice......................................... ..... ........... ....................... 36 Section 11.04. Separability of Invalid Provisions.................. ....................... """""'" 36 Section 11.05. NotIces ...............................................................................................36 Section 11.06. Evidence of Rights of Bondholders ................................................... 37 Section 11.07. Waiver of Personal Liability......... ..................... ..... ................... ........ 38 Section 11.08. Publication of Notices.............. ........... ........... ....... ............................. 39 Section 11.09. Prevailing Law.. ................................................................................. 39 Section 11.10. Execution in Several Counterparts.................. ...... .................... """'" 39 APPENDIX A [FORM OF BOND] ................ ............ """'" ...... ...... .......... ....... ............... ..... A-I APPENDIX B MULTI-MODE ANNEX. ...................................... ...... ....... ........................ ..B-1 DOCSSFI:645021.14 -lll- ;)-~ SABW Draft January 13, 2004 NEW ISSUE-BOOK-ENTRY ONLY RATINGS: See "RATINGS" herein. $ . CITY OF CHULA VISTA INDUSTRIAL DEVELOPMENT REVENUE REFUNDING BONDS (SAN DIEGO GAS & ELECTRIC COMPANY) $ .200 SERIES - $ .200 SERIES - $ . 200 - SERIES - $ .200 SERIES - $ .200 - SERIES - [#] through [#) Dated: Date of Delivery The Bonds are limited obligations of the City of Chula Vista (the "City") and will be payable solely ITom and secured solely by the revenues to be derived pursuant to certain Loan Agreements between the City and San Diego Gas & Electric Company which shall deliver to the Trustee, in connection with the loan made under certain of such Loan Agreements, its First Mortgage Bonds of like principal amount, maturity date, interest rate and redemption provisions as the Bonds payable from such Loan Agreements. In each Loan Agreement, San Diego Gas & Electric Company (the "Company") agrees to make payments so as to provide sufficient revenues to pay when due pursuant to an Indenture the principal of (whether at maturity, on redemption, or by acceleration), the premium, if any, and the interest on the Series of Bonds secured by the payments under such Loan Agreement, the purchase price of tendered Bonds of such Series [other that Bonds in a PARS Rate] and certain other payments as provided in such Loan Agreement. [The term of the Bonds of each Series shall be divided into consecutive Rate Periods, during each of which the Bonds of such Series shall bear interest at the PARS Rate, Daily Rate, Weekly Rate, Variable Term Rate(s) or Term Rate as described herein. The Bonds will be issued in such series, subseries and denominations, will be payable and mature on such dates and will bear interest at such rates determined in such manner as described on the inside cover of this Official Statement and as more fully described herein. Under certain circumstances, certain of the Bonds are subject to optional and mandatory tender for purchase, in the manner and at the times described herein.] The Bonds are subject to optional and mandatory redemption prior to maturity in the manner and at the times described herein. The Bonds will be issued in book-entry form only. See "THE BONDS-Book-Entry System." Principal of and premium, if any, on the Bonds will be payable at the principal corporate trust office of U.S. Bank, N.A., as Registrar and Paying Agent, and interest on the Bonds will be payable as described herein. [The scheduled payment of principal and interest with respect to certain Bonds will be guaranteed under an insurance policy to be issued by , as shown on the inside ITont cover of this Official Statement. See "BOND INSURANCE" herein and APPENDIX E - "SPECIMEN POLICY" hereto.] [Payment of the Purchase Price of the Series - Bonds will be supported by a Standby Bond Purchase Agreement with (the "Liquidity Provider"). See "THE INITIAL SERIES - LIQUIDITY FACILITY" herein. The obligation of the Liquidity Provider to purchase Series - Bonds will be suspended or terminated immediately without any action on the part of the Liquidity Provider upon certain events. The Standby Bond Purchase Agreement does not support the payment of the tender price of Bonds other than the Series - Bonds. See "THE LIQUIDITY PROVIDER" and "THE INITIAL SERIES - LIQUIDITY FACILITY - Events of Default, Suspension and Termination" and "- Consequences of Events of Default, Suspension and Termination" herein.] [During a Weekly Rate Period and a Daily Rate Period, payment of the principal, Purchase Price of, and interest on the Series - Bonds will be supported by an irrevocable, direct-pay letter of credit (the "Letter of Credit") issued by (the "Letter of Credit Bank") pursuant to and subject to the terms of a Reimbursement Agreement. The Letter of Credit will expire on , 20_, unless extended or earlier terminated as described therein. [LEITER OF CREDIT BANK LOGO] The Letter of Credit does not support the payment of Bonds other than the Series - Bonds.] [payment of the Purchase Price of the Series - Bonds will not be supported by a liquidity facility or credit facility, but will be payable solely from remarketing proceeds and payments from the Company.] . Preliminary, subject to change. - LA! 539071v7 NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF CALIFORNIA OR THE CITY OF CHULA VISTA OR ANY DEPARTMENT THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OR PURCHASE PRICE OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS. In the opinion of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, based upon an analysis of existing laws, regulations, rulings and court decisions, and assuming, among other matters, the accuracy of certain representations and compliance with certain covenants, interest on the Bonds is excluded from gross income for federal income tax purposes under [Title XIII of the Tax Refonn Act of 1986 and] Section 103 of the Internal Revenue Code of 1986 [1954, as amended], except that no opinion is expressed as to the status of interest on any Bond during any period that such Bond is held by a "substantial user" of facilities financed or refinanced by the Bonds or by a "related person" within the meaning of Section 147(a) [1O3(b)(l3)] of the Internal Revenue Code of 1986 [1954, as amended]. [Bond Counsel observes, however, that interest on the Bonds is a specific preference item for purposes of calculating the federal individual and corporate alternative minimum taxes.] [In the further opinion of Bond Counsel, interest on the Bonds is not a specific preference item for purposes of the federal individual or corporate alternative minimum taxes, although Bond Counsel observes that such interest is included in adjusted current earnings when calculating corporate alternative minimum taxable income.] Bond Counsel is also of the opinion that interest on the Bonds is exempt from State of California personal income taxes. Bond Counsel expresses no opinion regarding any other tax consequences related to the ownership or disposition of, or the accrual or receipt of interest on, the Bonds. See "TAX MA TIERS" herein. The Bonds are offered, subject to prior sale, when, as and if issued and received by the Underwriters and subject to certain conditions, including the approval of Orrick, Herrington & Sutcliffe LLP, San Francisco, California, Bond Counsel. Certain legal matters will be passed upon for the City by its special counsel.[Jones Hall, A Professional Law Corporation, San Francisco, California] and for the Company by , Assistant General Counsel for the Company. Certain legal matters will be passed upon for the Underwriters by its counsel, Sidley Austin Brown & Wood LLP, San Francisco, California. It is expected that the Bonds will be available for delivery through the facilities of The Depository Trust Company in New York, New York, on or about ,200_. [UNDERWRITERS] ,200- 2 :L'{¡; 1 LA! 53907lv7 MATURITY SCHEDULE" $ CITY OF CHULA VISTA INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS (SAN DIEGO GAS & ELECTRIC COMPANY) 200 - Series - (Term Rate Bonds) Initial Rate: Tenn Rate fixed through ,20°- Interest Payment Dates generally: each - and -' commencing on Authorized Denominations: Principal amounts of $5,000 or any integral multiple in excess thereof Maturity ( ) Principal Amount Interest Rate Yield CUSIP [Insurer] $-_% Series 200 -- Term Bond due ,20- - Yield: - % CUSIP (Insurer ~ 200 Series - - (Variable Rate Demand Bonds - Insured) Initial Rate: Insurer: Liquidity Provider: Remarketing Agent: Interest Payment Dates generally: The first Business Day of each calendar month Authorized Denominations: Principal amounts of $100,000 or any integral multiple in excess thereof $ 200 Series Term Bond due ,20- - Price: 100% CUSIP - 200 Series - - (Variable Rate Demand Bonds - Letter of Credit Enhanced) Initial Rate: Letter of Credit Banle Remarketing Agent: Interest Payment Dates generally: The flTst Business Day of each calendar month Authorized Denominations: Principal amounts of$lOO,OOO or any integral multiple of $5,000 in excess thereof $ 200- Series - Term Bond due ,20- - Price: 100% CUSIP 200 Series - - (Variable Rate Demand Bonds - Unenhanced) Initial Rate: Remarketing Agent: Interest Payment Dates generally: The flTSt Business Day of each calendar month Authorized Denominations: Principal amounts of$1O0,000 or any integral multiple of$5,000 in excess thereof $ 200- Series - Term Bond due ,20- - Price: 100% CUSIP . Preliminary, subject to change. LA] 539071v7 f) -- &;6 20°- Series - [#] through [#] (P ARS Rate Securities) Initial Rate: PARS Rate Authorized Denominations: Principal amounts of $25,000 or any integral multiple thereof. Length Initial Interest Broker- Initial ofInitial Interest Auction Payment Dealer and Maturity Principal Auction Auction Payment Date Date Market Series L-> Amount Date Period Date Generally GeneralIy CUSIP Agent [Insurer The Series - Bonds of each Series will bear interest &om the date of original delivery for the initial Auction Periods set forth above at the rates established by the Underwriter, prior to the date of delivery. Thereafter the Series - Bonds of each Series will bear interest at the PARS Rate for each Auction Period, until a conversion to a Daily Rate Period, Weekly Rate Period, Variable Tenn Rate Period, or Tenn Rate Period as described in this Official Statement. During a PARS Rate Period, interest will be payable on the fIrst interest payment dates set forth above and thereafter on the Business Day following the end of each Auction Period. 4 d-(PC¡ LA! 539071v7 The infonnation contained in this Official Statement has been obtained from the Company, r (the "Insurer"), (the "Liquidity Provider"), (the "Letter of Credit Bank")] and other sources which are deemed reliable by the City. No representation or warranty is made, however, as to the accuracy or completeness of such infonnation, and nothing contained in this Official Statement is, or shall be relied upon as, a promise or representation by the City or (the "Underwriters"). This Official Statement is submitted in connection with the sale of securities as referred to herein and may not be reproduced or used in whole or in part for any other purpose. The delivery of this Official Statement at any time does not imply that infonnation herein is correct as of any time subsequent to its date. No dealer, broker, salesperson or any other person has been authorized by the City, the Company[, the Insurer, the Liquidity Provider, the Letter of Credit Bank,] or the Underwriters to give any infonnation or to make any representations other than those contained in this Official Statement in connection with the offering described herein and, if given or made, such infonnation or representations must not be relied upon as having been authorized by any of the foregoing. This Official Statement does not constitute an offer to sell or solicitation of an offer to buy any securities other than the Bonds offered hereby, and there shall not be any offer or solicitation of such offer or sale of the Bonds within any jurisdiction in which such offer or solicitation is not authorized, or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation. The Underwriters have provided the following sentence for inclusion in this Official Statement: The Underwriters have reviewed the infonnation in this Official Statement in accordance with, and as part of, their responsibilities to investors under the federal securities laws as applied to the facts and circumstances of this transaction, but the Underwriters do not guarantee the accuracy or completeness of such infonnation. IN CONNECTION WITH THE OFFERING THE UNDERWRITERS MAY OVERALLOT OR EFFECT TRANSACTIONS WIDCH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WIDCH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS IN THIS OFFICIAL STATEMENT Certain statements included or incorporated by reference in this Official Statement constitute "forward-looking statements." Such statements are generally identifiable by the tenninology used such as "plan," "expect," "estimate," "budget" or other similar words. Forward-looking statements in this Official Statement are subject to risks and uncertainties. The achievement of certain results or other expectations contained in such forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause actual results, perfonnance or achievements described to be materially different from any future results, perfonnance or achievements expressed or implied by such forward-looking statements. Neither the City nor the Company plans to issue any updates or revisions to those forward-looking statements if or when expectations or events, conditions or circumstances on which such statements are based occur. LA! 53907lv7 ;)- TABLE OF CONTENTS Page INTRODUCTORY STATEMENT ...............................................................................................................2 TIlE CITY .....................................................................................................................................................4 TIlE COMPANY ..........................................................................................................................................5 PLAN OF FINANCE ... ...................................................... ..... """"""""""""""""'" """""""" ..... ..... .........5 TIlE BONDS... ..............................................................................................................................................5 BOND INSURANCE ........ ........................... """"""'" .......... ..................................................... ..... ............26 TIlE INITIAL LIQUIDITY FACILITY. """"""""" ......... """""""" ....... ............ ..... """""""""'" ............26 TIlE LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT..................................................26 TIlE LOAN AGREEMENTS .....................................................................................................................27 TIlE FIRST MORTGAGE BONDS ...........................................................................................................31 TIlE INDENTURES ...................................................................................................................................33 UNDERWRITING.................................... ..................................................................................................3 8 RA TINGS .................................................................. """'" ............. ..... ....... .................... ............. ...............3 8 BROKER-DEALERS AND AUCTION AGENT """ ....... ........ .......... ............... ....... .......... """" ...............39 CONTINUING DISCLOSURE ... ..... ........ .................. ....... ....... .................. ............................ ....................39 [VERIFICA TION AND MA TIlEMA TICAL COMPUT A TIONS.............................................................39 TAX MATTERS .........................................................................................................................................40 LEGAL MATTERS ...... ........ ........................................ .......... """"""'" ..... .................... """" ""'" .........424+ ABSENCE OF MATERIAL LITIGATION ........ ...................................................................................434+ MISCELLANEOUS.............................................................................................................................. ..444:J. APPENDIX A - DEFINITIONS AND SUMMARY OF AUCTION PROCEDURES .......................... A-I APPENDIX B - SAN DIEGO GAS & ELECTRIC COMPANY ............................................................B-I APPENDIX C - PROPOSED FORM OF OPINION OF BOND COUNSEL..........................................C-I APPENDIX D - FORM OF CONTINUING DISCLOSURE CERTIFICATE....................................... D-I APPENDIX E - SPECIMEN POLICY.. ......................... ............ .............................................. ....... """'" E-I APPENDIX F - TIlE LIQUIDITY PROVIDER ....... .................................. .............. ...................... """'" F-I APPENDIX G - TIlE LETTER OF CREDIT BANK ............................................................................. G-I I d.-'ll LA! 539071v7 $ . CITY OF CHULA VISTA INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS (SAN DIEGO GAS & ELECTRIC COMPANY) $ . 200 - SERlES - $ . 200 SERlES - $ . 200 - SERlES - $ . 200 SERlES - $ . 200 - SERIES - [#] through [#] INTRODUCTORY STATEMENT This Official Statement and Appendices hereto are provided to furnish certain infonnation regarding the $ City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200- Series - (the "Series - Bonds"), 200- Series - (the "Series - Bonds"), 200- Series - (the "Series - Bonds"), 200- Series - (the "Series - Bonds") and 200- Series - [#] through [#] (the "Series - Bonds" and together with the Series- Bonds, the Series - Bonds, the Series - Bonds and the Series - Bonds, the "Bonds") to be issued by the City of Chula Vista (the "City"). Each Series of Bonds will be issued under an Indenture of Trust, dated as of ,200- (the "Indenture" and collectively, the "Indentures"), between the City and U.S. Bank, N.A., as trustee (the "Trustee"). U.S. Bank, N.A. will serve as the initial registrar, paying agent and tender agent with respect to the Bonds (in such capacities, the "Registrar," "Paying Agent" and "Tender Agent," respectively). The City of San Diego previously issued [$180,000,000 principal amount of The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1992 Series A, 1992 Series Band 1992 Series C (the "SD 1992 Bonds"), $68,300,000 principal amount of The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1993 Series A (the "SD 1993A Bonds"), $92,900,000 principal amount of The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1993 Series C (the "SD 1993C Bonds"), $57,700,000 principal amount of The City of San Diego Industrial Development Revenue [Refunding] Bonds (San Diego Gas & Electric Company) 1995 Series A and 1995 Series B (the "SD 1995 Bonds") and the City has previously issued $225,000,000 principal amount of The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1992 Series A, 1992 Series B, 1992 Series C and 1992 Series D (the "CV 1992 Bonds"), $98,900,000 principal amount of The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1996 Series A and 1996 Series B (the "CV 1996 Bonds"), $25,000,000 principal amount of The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1997 Series A (the "CV 1997 Bonds" and, together with the SD 1992 Bonds, the SD 1993A Bonds, the SD 1993C Bonds, the SD 1995 Bonds, the CV 1992 Bonds and the CV 1996 Bonds, the "Prior Bonds")], all in order to provide financial assistance to San Diego Gas & Electric Company (the "Company"), a California corporation, for the financing or refinancing of the acquisition, construction and installation of certain facilities for the generation, transmission and distribution of electric energy (the "Project"). The City will issue the Bonds in order to refund the Prior Bonds, ás described more fully below. . Preliminary, subject to change. LAI 539071v7 ;)-- j¡;). In connection with the issuance of the Bonds, the City and the Company will enter into certain Loan Agreements, each dated as of , 200- (each a "Loan Agreement" and collectively, the "Loan Agreements"), under which the proceeds from the sale of the Bonds will be loaned to the Company and applied to refund the Prior Bonds. See "PLAN OF FINANCE." Pursuant to the Indentures, the City will assign to the Trustee the City's rights under the Loan Agreements (except for certain rights to payment of expenses and indemnification and rights to receive notices and to give certain approvals and consents). In each Loan Agreement, the Company agrees to make payments so as to provide sufficient revenues to pay when due pursuant to the applicable Indenture the principal of (whether at maturity, on redemption, or by acceleration), the premium, if any, and the interest on the Series of Bonds secured by the payments under such Loan Agreement, the purchase price of tendered Bonds of such Series and certain other payments as provided in such Loan Agreement. [In order to evidence, secure and provide for the payment of the Company's obligations under the Loan Agreements with respect to the Bonds, the Company will issue and deliver to the Trustee first mortgage bonds (the "First Mortgage Bonds") issued as an additional series under the Mortgage and Deed of Trust, dated July 1, 1940, between the Company and First Trust of California, National Association, as successor trustee (the "Company Mortgage Trustee"), as heretofore amended and supplemented and as to be supplemented (the "Company Mortgage"). As holder of the First Mortgage Bonds, the Trustee will, ratably with the holders of all other first mortgage bonds outstanding under the Company Mortgage, enjoy the benefit of a lien on properties of the Company as described herein under the heading "The First Mortgage Bonds - Security." The Bonds will not otherwise be secured by a mortgage of, or security interest in, the Project, defined below, which will at all times remain the property of the Company. The First Mortgage Bonds will be registered in the name of and owned and held by the Trustee for the benefit of the holders of the Bonds and will not be transferable except to a successor trustee under the Indenture.] [The scheduled payment of principal and interest with respect to certain Bonds will be guaranteed under an insurance policy to be issued by , as shown on the inside front cover of this Official Statement (the "Insured Bonds"). See "BOND INSURANCE" herein and APPENDIX E - "SPECIMEN POLICY" hereto.] [Payment of the Purchase Price of the Series - Bonds will be supported by a Standby Bond Purchase Agreement with (the "Liquidity Provider"). See "THE INITIAL SERIES - LIQUIDITY FACILITY" herein. The obligation of the Liquidity Provider to purchase Series - Bonds will be suspended or tenninated immediately without any action on the part of the Liquidity Provider upon certain events. The Standby Bond Purchase Agreement does not support the payment of the tender price of Bonds other than the Series - Bonds. See "THE LIQUIDITY PROVIDER" and "THE INITIAL SERIES - LIQUIDITY FACILITY - Events of Default, Suspension and Tennination" and "- Consequences of Events of Default, Suspension and Tennination" herein.] [During a Weekly Rate Period and a Daily Rate Period, payment of the principal and Purchase Price of, and interest on, the Series - Bonds will be supported by an irrevocable, direct-pay letter of credit (the "Letter of Credit") issued by (the "Letter of Credit Bank") pursuant to and subject to the tenns of a Reimbursement Agreement. The Letter of Credit will expire on , 20_, unless extended or earlier tenninated as described therein. See "THE LETTER OF CREDIT AND THE REIMBURSEMENT AGREEMENT" herein and APPENDIX G - "THE LETTER OF CREDIT BANK." attached hereto. The Letter of Credit does not support the payment of Bonds other than the Series - Bonds.] LA! 539071v7 3 d--- 73 [Payment of the Purchase Price of the Series - Bonds will not be supported by a liquidity facility or credit facility, but will be payable solely from remarketing proceeds and payments from the Company.] [The Standby Bond Purchase Agreement and the Letter of Credit are Credit Facilities as derIDed in the Indenture.] [The obligations of the Company under the Loan Agreements with respect to the Bonds are general obligations of the Company which will not be secured by a mortgage of, or security interest in, the Project, as defined below, or in any other property of the Company. The obligation of the Company to make payments under the Loan Agreements with respect to the - Bonds ranks equally with the unsecured debt of the Company.] [The obligations of the Company under the Loan Agreements with respect to the Bonds are general obligations of the Company and are secured by the First Mortgage Bonds which are, in turn, secured by the Company Mortgage. Such obligations will not be secured by any other mortgage of, or security interest in, property of the Company, though the First Mortgage Bonds will be secured by the property that is subject to the lien of the Company Mortgage.] The Bonds of each Series are limited obligations of the City and will be payable solely from and secured solely by the revenues to be derived pursuant to the applicable Loan Agreement. Neither the faith and credit nor the taxing power of the State of California or the City or any department thereof is pledged to the payment of the principal of, premium, if any, or interest on the Bonds. Brief descriptions of the City, the Project and the Company and summaries of certain provisions of the Bonds, the Loan Agreements, [the First Mortgage Bonds, the Company Mortgage] and the Indentures are included in this Official Statement. Such information and descriptions do not purport to be complete, comprehensive or definitive. Statements regarding specific documents, including the Company Mortgage, the Loan Agreements and the Indentures, make use of certain terms defined in such documents and are summaries of and subject to the detailed provisions of such documents and are qualified in their entirety by reference to each such document, and references to the Bonds are similarly subject to and qualified in their entirety by reference to the form thereof included in the indenture and the information with respect thereto included in the aforesaid documents. Copies of all aforesaid documents may be obtained at the principal office of , , Attn: during the period of the initial offering of the Bonds and thereafter are available for inspection at the principal corporate trust office of the Trustee. All such descriptions are further qualified in their entirety by reference to bankruptcy, insolvency, reorganization, moratorium or similar laws or governmental actions relating to or affecting generally the enforcement of creditors' rights. THE CITY The City, a municipal corporation and charter city in the State of California, has enacted Chapter 3.48 of the Chula Vista Municipal Code, as amended (the "Law"), which enables the City to issue and sell bonds to provide financial assistance for the acquisition, construction and installation of facilities for industrial, commercial, business or public utility purposes. On , 200_, the City Council of the City adopted a resolution authorizing the issuance and sale of the Bonds and the execution and delivery of the Loan Agreements, the Indentures, bond purchase agreements and an official statement in connection with the sale of the Bonds. 4 2-7+ LA! 539071v7 THE COMPANY For information concerning the Company, including selected fmancial and operating information and information incorporated by reference, see APPENDIX B hereto. PLAN OF FINANCE The Prior Bonds will be redeemed at a redemption price equal to the principal amount of the Prior Bonds being redeemed plus accrued interest to the date of redemption, [without premium] in their entirety on or about , 200- with proceeds of the Bonds [and with funds provided by the Company]. [Additional redemption dates or redemption prices to be added as needed.] The proceeds received by the City from the sale of the Bonds will be deposited with the Trustee who will thereafter transfer such proceeds to the trustee for the Prior Bonds to be applied, [together with other funds provided by the Company,] to effect the redemption of the Prior Bonds. Other funds of the Company will be used to pay the costs of issuing the Bonds, accrued interest in respect of the Prior Bonds, and any redemption premium in respect of the Prior Bonds. THE BONDS General The Bonds will be issued in such series and denominations, will be payable and mature on such dates and will bear interest at such rates determined in such manner as described on the inside cover of this Official Statement and as more fully described herein. The Initial Rate Period for each Series of Bonds is set forth on the inside front cover of this Official Statement unless and until changed as described below. Under certain circumstances, the Bonds are subject to optional and mandatory tender for purchase, in the manner and at the times described herein. The Bonds are subject to optional and mandatory redemption prior to maturity in the manner and at the times described herein. When the Bonds bear interest at a PARS Rate (as described below), the Authorized Denominations of such Bonds will be $25,000 or any integral multiple thereof. When the Bonds bear interest at a Daily Rate or a Weekly Rate (as described below), the Authorized Denominations of such Bonds will be $100,000 or any integral multiple thereof. When the Bonds bear interest at a Variable Term Rate (as described below), the Authorized Denominations of such Bonds will be $100,000 or any integral multiple of $5,000 in excess of $100,000. When the Bonds bear interest at a Term Rate (as described below), the Authorized Denominations will be $5,000 or any integral multiple thereof. The principal of and premium, if any, on the Bonds shall be payable to the holders upon surrender thereof at the principal corporate trust office of the Paying Agent. Interest shall be payable to the registered holders as of the Record Date (as defined below), such interest to be paid on any Bond held in book-entry only form in immediately available funds by no later than 2:30 p.m., New York City time, and otherwise (i) by check mailed by first class mail on the Interest Payment Date to such holders or (ii) during any Rate Period other than a Tenn Rate Period, in immediately available funds, but in respect of any holder of Bonds in a Daily Rate Period or Weekly Rate Period only, to any holder which owns Bonds in an aggregate principal amount of at least $1,000,000 on the Record Date (as defined below) by wire transfer to an account in the United States and who shall have provided wire transfer instructions to the Paying Agent at least 10 days prior to such Record Date; except, in each case, that, if and to the extent that there shall be a default in the payment of the interest due on such Interest Payment Date, such 5 ;;-75 LA! 539071v7 defaulted interest shall be paid to the holders in whose name any such Bonds are registered as of a special record date to be fixed by the Trustee, notice of which shall be given by first class mail to such owners not less than 10 days prior thereto. Notwithstanding the foregoing, interest on any Bond bearing a Variable Tenn Rate (except any Bond held in book-entry only fonD) shall be paid only upon presentation to the Tender Agent of the Bond on which such payment is due. The Record Date for the Bonds is (i) with respect to any Interest Payment Date in respect of any Daily Rate Period, Weekly Rate Period, Variable Tenn Segment or PARS Rate Period, the Business Day preceding such Interest Payment Date, or (ii) with respect to any Interest Payment Date in respect of a Tenn Rate Period, the fifteenth day of the month next preceding such Interest Payment Date. A "Business Day" is any day on which banks located in the cities in which the Principal Offices (as defined in the Indenture) of the Trustee, the Registrar, the Paying Agent, the Tender Agent, the Remarketing Agent and any Credit Provider are located are not required or authorized to remain closed and on which the New York Stock Exchange is not closed. Interest Rates and Rate Periods The tenD of each Series of the Bonds shall be divided into consecutive Rate Periods, during each of which the Bonds of such Series shall bear interest at the PARS Rate, Daily Rate, Weekly Rate, Variable Tenn Rate(s) or Tenn Rate as described below. Except as described under clause (2) under "THE BONDS - Variable Tenn Rate Period - Adjustment From Variable Tenn Rates" below, no more than one Rate Period may apply to a Series of Bonds at the same time. The Series - Bonds and the PARS Rate Period [The Series - Bonds shall initially be in a PARS Rate Period.] Interest on Bonds in a PARS Rate Period will accrue during each Auction Period and will be payable in arrears on each Business Day immediately following each Auction Period applicable to such Series of Bonds (each an "PARS Rate Bonds Interest Payment Date"). The initial Auction Period for the Series - Bonds of each Series shall commence on the date of delivery of the Series - Bonds and shall end on and include the initial Auction Date applicable to such Series of Series - Bonds set forth on the inside front cover page hereof. The duration, generally, of each Auction Period with respect to each Series of Series - Bonds and the PARS Rate Bonds Interest Payment Dates thereof are set forth on the inside front cover page hereof. When the Bonds bear interest at a PARS Rate (as described below), the Authorized Denominations of such Bonds will be $25,000 or any integral multiple thereof. So long as any Series of Bonds are in a PARS Rate Period, interest on such Series of Bonds will be computed on the basis of a 360-day year for the number of days actually elapsed if the Bonds are in any mode of 180 days or less. If the PARS Bonds are in a mode of greater than 180 days, interest will be computed on the basis of a 360-day year of twelve 30-day months. See APPENDIX A - "DEFINITIONS AND SUMMARY OF AUCTION PROCEDURES" attached hereto. The Company may cause the duration of the Auction Period with respect to a Series of Bonds in a PARS Rate Period, to be changed to a period not longer than six months in duration in the manner described in APPENDIX A under the caption" ." In certain circumstances, however, the Auction Proced,!re may be canceled or suspended. See APPENDIX A - "DEFINITIONS AND SUMMARY OF AUCTION PROCEDURES - ." Neither the City nor the Company is under any obligation to purchase Bonds upon a failed, suspended or cancelled Auction or otherwise. 6 wO LAI 53907Jv7 The Broker-Dealer has advised the Company that it intends initially to make a market for Series - Bonds; however, the Broker-Dealer is not obligated to make such a market, any market making may be discontinued and no assurance can be given that secondary markets will develop. PARS Rate. The Series - Bonds of each Series will initially bear interest at the respective rates for the initial Auction Periods established by the Underwriter prior to the date of delivery of the Series - Bonds. The Series - Bonds thereafter and any Bonds converted to a PARS Rate Period shall bear interest at a PARS Rate determined in accordance with the Auction Procedures provisions of the Indenture. See APPENDIX A - "DEFINITIONS AND SUMMARY OF AUCTION PROCEDURES - " Adjustment to PARS Rate. At the option of the Company, all [or any portion] of a series of the Bonds (in an amount which is an Authorized Denomination for the new Rate Period) may be converted from a Daily Rate Period, Weekly Rate Period or a Variable Term Rate Period to a PARS Rate Period; provided that after any adjustment of a portion of the Bonds from a Daily Rate, Weekly Rate or a Variable Term Rate to a PARS Rate Period, there shall be not less than $ I 0,000,000 in aggregate principal amount of any series of Bonds bearing interest at a PARS Rate unless otherwise consented to by the Broker-Dealers. Any such adjustment will be made as follows: (1) In any such adjustment from a Daily Rate Period or Weekly Rate Period, the PARS Rate Adjustment Date will be a regularly scheduled Interest Payment Date on which interest is payable for the Daily Rate Period or Weekly Rate Period from which the adjustment is to be made; provided, however, that if the adjustment is from a Term Rate Period, the PARS Rate Adjustment Date will be a regularly scheduled Interest Payment Date on which a new Term Rate Period would otherwise have commenced, and in any such adjustment from a Variable Term Rate Period, the PARS Rate Adjustment Date will be the last regularly scheduled Interest Payment Date on which interest is payable for any Interest Period theretofore established for the Bonds to be converted; (2) Not later than 5:00 p.m., New York City time, on the date of determination of the PARS Rate, the Broker-Dealer will notifY the Trustee, the Company and the Auction Agent of the PARS Rate by telephone, promptly confirmed in writing; (3) The Company may revoke its election to effect an adjustment of the interest rate on any Bonds to a PARS Rate by giving written notice of such revocation to the Trustee, the City, the Remarketing Agent, the Bank, the Auction Agent and the Broker-Dealer at any time prior to the setting of the PARS Rate by the Broker-Dealer; (4) No Bonds may be converted to the PARS Rate when the Bonds are not held by a Securities Depository in book-entry form. Notice of Adjustment to PARS Rate. The Company will give written notice of any such adjustment to the Remarketing Agent, the City, the Trustee, the Insurer, the Auction Agent, the Broker- Dealer and the Bank not less than seven (7) Business Days prior to the date on which the Trustee is required to notifY the Owners of the adjustment pursuant to the paragraph below. Such notice will specifY the Bonds to be converted, PARS Rate Adjustment Date and the length of the initial Auction Period. Together with such notice, the Company will file with the City and the Trustee an Opinion of Bond Counsel to the effect that the adjustment of the Bonds to a PARS Rate Period (i) is authorized or permitted by the Indenture or the Law and (ii) will not adversely affect the Tax-Exempt status of interest on the Bonds. No such change to a PARS Rate Period will become effective unless the Company will also file, with the City and the Trustee, an Opinion of Bond Counsel to the same effect dated the PARS Rate Adjustment Date. Not less than fifteen (15) days prior to the PARS Rate Adjustment Date, the Trustee will mail a written notice of the adjustment to the Owners of all Bonds to be converted; provided, however, that the Trustee will not mail such written notice if converting from a Variable Term Rate Period until it has received a written confinnation from the Remarketing Agent that no Interest Period for the Bonds extends beyond the PARS Rate Adjustment Date-"Adjustment from PARS Rate Period." 7 ;2- 77 LA I 539071v7 Adjustment from PARS Rate. At the option of the Company, all or any portion of a series of the Bonds (in an amount which is an Authorized Denomination for the new Rate Period) may be converted from a PARS Rate Period to a Daily Rate Period, Weekly Rate Period or a Variable Tenn Rate Period, provided that after any adjustment of a portion of a series of the Bonds from a PARS Rate Period to a Daily Rate Period, Weekly Rate Period or Variable Tenn Rate Period, there shall remain not less than $10,000,000 in aggregate principal amount of such series of the Bonds bearing interest at a PARS Rate unless otherwise consented to by the Brokers-Dealers. Any such adjustment shall be made as follows: The Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date shall be the Interest Payment Date following the final Auction Period. Not less than twenty (20) days prior to the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date, the Trustee shall mail a written notice of the adjustment to the Owners of all Bonds to be converted, specifying the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date. At anytime prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or the Variable Tenn Rate Adjustment Date the Company may withdraw its notice of adjustment and the Auction for such Bonds will be held on such Auction Date as if no adjustment notice had ever been given. If on a Daily Rate Adjustment Date, Weekly Rate Adjustment Date or a Variable Tenn Rate Adjustment Date there has not been a timely withdrawal of the adjustment notice as set forth in the preceding paragraph any condition precedent to such adjustment is not satisfied, the Trustee will give written notice by first class mail postage prepaid as soon as practicable and in any event not later than the next succeeding Business Day to the Bondholders, to have been converted, the City [and the Bond Insurer] that such adjustment has not occurred, that the Bonds will not be purchased on the failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date, that the Auction Agent will continue to implement the Auction Procedures on the Auction Dates with respect to such Bonds which otherwise would have been converted excluding however, the Auction Date falling on the Business Day next preceding the failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date, and that the interest rate will continue to be the PARS Rate; provided, however, that the interest rate borne by the Bonds which otherwise would have been converted during the Auction Period commencing on such failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date will be the Maximum Interest Rate, and the Auction Period will be the seven-day Auction Period. [A Credit Facility meeting the requirements of the Indenture shall be in effect on the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or the Variable Tenn Rate Adjustment Date, as the case may be.] On the adjustment date applicable to the Bonds to be converted, the Bonds to be converted from a PARS Rate shall be subject to mandatory tender at a purchase price equal to 100% of the principal amount thereof, plus accrued interest. The purchase price of the Bonds so tendered is payable solely from the proceeds of the remarketing of such Bonds. In the event that the conditions of an adjustment are not satisfied, including the failure to remarket all applicable Bonds on a mandatory tender date, the Bonds will not be subject to mandatory tender, will be returned to their owners, will automatically convert to a seven-day Auction Period and will bear interest at the Maximum Interest Rate. The Series - Bonds and Daily Rate Period [The Series - Bonds shall initially be in a Daily Rate Period.] Interest on any Series of Bonds in the Daily Rate Period shall accrue to and be payable on the first Business Day (as hereinafter defined) of each calendar month, and on the Business Day next succeeding the last day of each Rate Period. When 8 ;;; --""78 LA! 53907Jv7 the Bonds bear interest at a Daily Rate (as described below), the Authorized Denominations of such Bonds will be $100,000 or any integral multiple thereof. Interest shall be computed, in the case of any Daily Rate Period on the basis of a 365- or 366-day year, as applicable, for the number of days actually elapsed. Daily Rate. During each Daily Rate Period applicable to one or more Series of Bonds, the Bonds of such Series, shall bear interest at the Daily Rate, which shall be detennined by the Remarketing Agent for each Business Day either on such Business Day or on the next preceding Business Day and which may be detennined by the Remarketing Agent for any day that is not a Business Day on any such day during which there shall be active trading in Tax-Exempt (as defined in the Indenture) obligations comparable to such Bonds for such day. The Daily Rate shall be the rate detennined by the Remarketing Agent (based on an examination of Tax-Exempt obligations comparable to such Bonds known by the Remarketing Agent to have been priced or traded under then prevailing market conditions) to be the lowest rate which would enable the Remarketing Agent to sell such Bonds of such Series on the effective date of such rate at a price (without regard to accrued interest) equal to 100% ofthe principal amount thereof. If the Remarketing Agent shall not have detennined a Daily Rate for any day, the Daily Rate shall be the same as the Daily Rate for the immediately preceding day. In no event shall the Daily Rate be greater than 12% per annum. Adjustment to Daily Rate. The interest rate borne by one of more Series of the Bonds shall be adjusted to a Daily Rate upon receipt by the City, the Trustee, the Paying Agent and the Remarketing Agent of a written notice from the Company, which notice shall specifY the effective date of the adjustment to a Daily Rate which shall be (I) a Business Day not earlier than the 15th day (30th day ifthe then current Rate Period is a Tenn Rate Period) following the third Business Day after the receipt by the Trustee and Paying Agent of such notice (or such shorter period after the date of such receipt as is acceptable to the Paying Agent), (2) in the case of an adjustment from a Tenn Rate Period, a day on which the Bonds of such Series could be redeemed at the option of the Company (see "THE BONDS - Optional Redemption - Optional Redemption During Tenn Rate Period") or the day immediately following the last day of the then current Tenn Rate Period, (3) in the case of an adjustment from a PARS Rate Period, a day immediately following the end of an Auction Period, and (4) in the case of an adjustment from a Variable Tenn Rate Period, either (i) the day immediately following the last day of the then current Variable Tenn Period or, (ii) for each Bond of such Series, the day immediately following the last day of the last Variable Tenn Segment for such Bond in the then current Variable Tenn Rate Period, all as detennined in accordance with clause (I) or (2), respectively, under "THE BONDS - Variable Tenn Rate Period - Adjustment from Variable Tenn Rates;" provided, however, that if prior to the Company's making such election, any Bonds of such Series shall have been called for redemption and such redemption shall not have theretofore been effected, the effective date of such Daily Rate Period for all Bonds of such Series shall not precede such redemption date. Notice of Adjustment to Daily Rate. The Trustee shall give notice by mail of an adjustment to a Daily Rate Period to the holders of such Bonds not less than 15 days (30 days if the then current Rate Period is a Tenn Rate Period) prior to the effective date of such Daily Rate Period. Such notice shall state (1) that the interest rate on such Bonds will be adjusted to a Daily Rate, (2) the effective date of such Daily Rate Period, (3) that such Bonds are subject to mandatory tender for purchase on such effective date, (4) the procedures for such mandatory tender, and (5) that the holders of the Bonds do not have the right to retain their Bonds on such effective date. 9 ;; ~:M71 LA! 539071v7 The Series - Bonds and the Weekly Rate Period [The Series - Bonds shall initially be in a Weekly Rate Period.] Interest on any Series of Bonds in the Weekly Rate Period shall accrue to and be payable on the first Business Day (as hereinafter derIDed) of each calendar month, and on the Business Day next succeeding the last day of each Rate Period. When the Bonds bear interest at a Weekly Rate (as described below), the Authorized Denominations of such Bonds will be $100,000 or any integral multiple thereof. Interest shall be computed, in the case of any Weekly Rate Period, on the basis of a 365- or 366-day year, as applicable, for the number of days actually elapsed. Weekly Rate. During each Weekly Rate Period applicable to one or more Series of Bonds of such Series, shall bear interest at the Weekly Rate detennined by the Remarketing Agent no later than the first day of each Weekly Rate Period and thereafter no later than Tuesday of each week during such Weekly Rate Period, unless any such Tuesday shall not be a Business Day, in which event the Weekly Rate shall be detennined by the Remarketing Agent no later than the Business Day next preceding such Tuesday. The Weekly Rate shall be the rate detennined by the Remarketing Agent (based on an examination of Tax-Exempt obligations comparable to the Bonds known by the Remarketing Agent to have been priced or traded under then prevailing market conditions) to be the lowest rate which would enable the Remarketing Agent to sell such Bonds on the effective date of such rate at a price (without regard to accrued interest) equal to 100% of the principal amount thereof. If the Remarketing Agent shall not have detennined a Weekly Rate for any period, the Weekly Rate shall be the same as the Weekly Rate for the immediately preceding Weekly Rate Period. The first Weekly Rate detennined for each Weekly Rate Period shall apply to the period commencing on the first day of the Weekly Rate Period and ending on the next succeeding Tuesday and, thereafter, each Weekly Rate shall apply for the period commencing on each Wednesday and ending on the next succeeding Tuesday, unless such Weekly Rate Period shall end on a day other than Tuesday, in which event the last Weekly Rate for such Weekly Rate Period shall apply to the period ending on such last day. In no event shall the Weekly Rate be greater than 12% per annum. Adjustment to Weekly Rate. The interest rate borne by one or more Series of Bonds shall be adjusted to a Weekly Rate upon receipt by the City, the Trustee, the Paying Agent and the Remarketing Agent of a written notice by the Company, which notice shall specify the effective date of such adjustment to a Weekly Rate which shall be (1) a Business Day not earlier than the 15th day (30th day if the then current Rate Period is a Tenn Rate Period) following the third Business Day after receipt by the Trustee and Paying Agent of such notice (or such shorter period after the date of such receipt as shall be acceptable to the Paying Agent), (2) in the case of an adjustment from a Tenn Rate Period, a day on which the Bonds of such Series could be redeemed at the option of the Company (see "THE BONDS - Optional Redemption - Optional Redemption During Tenn Rate Period") or the day immediately following the last day of the then current Tenn Rate Period, (3) in the case of an adjustment from a PARS Rate Period, a day immediately following the end of an Auction Period, and (4) in the case of an adjustment from a Variable Tenn Rate Period, either (i) the day immediately following the last day of the then current Variable Tenn Rate Period or, (ii) for each Bond of such Series, the day immediately following the last day of the last Variable Tenn Segment for such Bond in the then current Variable Tenn Rate Period, all as detennined in accordance with clause (1) or (2), respectively, under "THE BONDS - Variable Tenn Rate Period - Adjustment from Variable Tenn Rates;" provided, however, that if prior to the Company's making such election, any Bonds of such Series shall have been called for redemption and such redemption shall not have theretofore been effected, the effective date of such Weekly Rate Period for all Bonds of such Series shall not precede such redemption date. 10 LA! 539071v7 '" Notice of Adiustment to Weekly Rate. The Trustee shall give notice by mail of an adjustment to a Weekly Rate Period to the holders of the affected Bonds not less than 15 days (30 days if the then current Rate Period is a Tenn Rate Period) prior to the effective date of such Weekly Rate Period. Such notice shall state (I) that the interest rate on the Bonds will be adjusted to a Weekly Rate, (2) the effective date of such Weekly Rate Period, (3) that the Bonds are subject to mandatory tender for purchase on such effective date, (4) the procedures for such mandatory tender, and (5) that the holders of the Bonds do not have the right to retain their Bonds on such effective date. The Series - Bonds and the Variable Term Rate Period [The Series - Bonds shall initially be in a Variable Tenn Rate Period.] Interest on any Series of Bonds for any Variable Tenn Segment shall be payable on the Business Day next succeeding the last day thereof. When the Bonds bear interest at a Variable Tenn Rate (as described below), the Authorized Denominations of such Bonds will be $100,000 or any integral multiple of $5,000 in excess of $100,000. Interest shall be computed, in the case of any Variable Tenn Segment, on the basis of a 365- or 366-day year, as applicable, for the number of days actually elapsed. Variable Tenn Segments and Variable Tenn Rates. During each Variable Tenn Rate Period applicable to one or more Series of Bonds, the Bonds of such Series shall bear interest during each Variable Tenn Segment for such Bond at the Variable Tenn Rate for such Bond. Each Variable Tenn Segment for any Bond of any Series shall be a period ending on a day immediately preceding a Business Day, of not less than one nor more than 270 days, detennined by the Remarketing Agent to be, in its judgment, the period which, together with all other Variable Tenn Segments for all Bonds of such Series, is likely to result in the lowest overall net interest expense on the Bonds of such Series. Any such Bond purchased on behalf of the Company and remaining unsold by the Remarketing Agent as of the close of business on the effective date of the Variable Tenn Segment for such Bond will have a Variable Tenn Segment of one day, or, if such Variable Tenn Segment would not end on a day immediately preceding a Business Day, a Variable Tenn Segment of more than one day ending on the day immediately preceding the next Business Day. No Variable Tenn Segment shall extend beyond the final maturity date of the Bonds. If, for any reason, the Remarketing Agent fails or is unable to detennine a Variable Rate Segment on any Bond, the Variable Tenn Segment for such Bond shall be one day, or, if such Variable Tenn Segment would end on a day which does not precede a Business Day, such Variable Tenn Segment shall end on the first day immediately preceding the Business Day next succeeding such day. The Variable Tenn Rate for each Variable Tenn Segment for each Bond of any Series shall be the rate detennined by the Remarketing Agent (based on an examination of Tax-Exempt obligations comparable to the Bonds of such Series known by the Remarketing Agent to have been priced or traded under then prevailing market conditions) to be the lowest rate which would enable the Remarketing Agent to sell the Bonds of such Series on the effective date of such rate at a price (without regarding accrued interest) equal to 100% of the principal amount. If, for any reason, a Variable Tenn Rate for a Variable Tenn Segment of one day is not detennined or effective, the Variable Tenn Rate for such Variable Tenn Segment of one day shall be 120% of the most recent BMA Municipal Swap Index published in The Bond Buyer or, in the event such index is no longer pùblished, such other comparable index selected pursuant to the Indenture. In no event shall any Variable Tenn Rate be greater than 12% per annum. Adjustment to Variable Tenn Rates. The interest rate borne by one or more Series of Bonds shall be adjusted to Variable Tenn Rates upon receipt by the City, the Trustee, the Paying Agent and the Remarketing Agent of a written notice from the Company, which notice shall specify the effective date of the Variable Tenn Rate Period which shall be (I) a Business Day not earlier than the 15th day (30th day if II ;)' 81 LAI 539071v7 the then current Rate Period is a Term Rate Period) following the third Business Day after the date of receipt by the Trustee and the Paying Agent of such notice (or such shorter period after the date of such receipt as shall be acceptable to the Paying Agent) (2) in the case of an adjustment from a PARS Rate Period, a day immediately following the end of an Auction Period and (3) in the case of an adjustment from a Term Rate Period, a day on which the Bonds of such Series could be redeemed at the option of the Company (see "THE BONDS - Optional Redemption - Optional Redemption During Term Rate Period" and "Optional Redemption During Daily or Weekly Rate Period") or the day immediately following the last day of the then current Term Rate Period; provided, however, that if prior to the Company making such election any Bonds have been called for redemption and redemption has not yet been effected, the effective date of such Variable Term Rate Period for all Bonds of such Series shall not precede such redemption date. Notice of Adjustment to Variable Term Rates. The Trustee shall give notice by mail of an adjustment to a Variable Term Rate Period to the holders of the Bonds not less than 15 days (30 days if the then current Rate Period is a Term Rate Period) prior to the effective date of such Variable Term Rate Period. Such notice shall state (l) that the interest rate on such Bonds will be adjusted to Variable Term Rates, (2) the effective date of such Variable Term Rate Period, (3) that such Bonds are subject to mandatory tender for purchase on such effective date (4) the procedures for such mandatory tender, and (5) that the holders of such Bonds do not have the right to retain their Bonds on such effective date. Adiustment from Variable Term Rates. At any time during a Variable Term Rate Period, the interest rate borne by the Bonds of one or more Series shall be adjusted from Variable Term Rates and the Bonds shall instead bear interest as otherwise permitted in the Indenture, upon receipt by the City, the Trustee, the Paying Agent and the Remarketing Agent of written notice from the Company specifying the Rate Period to follow with respect to the Bonds and instructing the Remarketing Agent to: (a) determine Variable Term Segments of such duration that, as soon as possible, all Variable Term Segments shall end on the same date, not earlier than the 14th day following the third Business Day (or such shorter period acceptable to the Paying Agent) following the receipt by the Trustee and Paying Agent of notice from the Company, which date shall be the last day of the then current Variable Term Rate Period, and, upon the establishment of such Variable Term Segments, the day next succeeding the last day of all such Variable Term Segments shall be the effective date of the Daily Rate Period, Weekly Rate Period or Term Rate Period selected by the Company; or (b) determine Variable Term Segments of such duration that will, in the judgment of the Remarketing Agent, best promote an orderly transition to the next succeeding Rate Period to apply such Bonds, beginning not earlier than the 14th day following the third Business Day (or such shorter period acceptable to the Paying Agent) after the receipt by the Trustee and Paying Agent of the notice of such selection of the Company. If the Company selects alternative (b) above, the day next succeeding the last day of the Variable Term Segment for each Bond of such Series shall be, with respect to such Bond, the effective date of the PARS Rate Period, the Daily Rate Period, Weekly Rate Period or Term Rate Period selected by the Company. An adjustment from a Variable Term Rate Period described in this paragraph may result in some of the Bonds of a Series bearing interest at a PARS Rate, a Daily Rate, Weekly Rate or Term Rate while other Bonds continue to bear interest at Variable Term Rates. 12 ;ìø-~ LAI 539071v7 The Series - Bonds and the Term Rate Period [The Series - Bonds shall initially be in a Tenn Rate Period extending through .] Interest on any Series of Bonds in a Tenn Rate Period shall be payable on the flIst day of the sixth month following the commencement of the Tenn Rate Period and the first day of each sixth month thereafter, and on the Business Day next succeeding the last day of such Tenn Rate Period. When the Bonds bear interest at a Tenn Rate (as described below), the Authorized Denominations will be $5,000 or any integral multiple thereof. Interest shall be computed, in the case of a Tenn Rate Period, on the basis of a 360-day year consisting of twelve 30-day months. Tenn Rate. During each Tenn Rate Period applicable to one or more Series of Bonds, the Bonds of such Series will bear interest at the Tenn Rate, which will be detennined by the Remarketing Agent on a Business Day selected by the Remarketing Agent, but not more than 30 days prior to and not later than 12:00 noon, New York City time, on the Business Day prior to the Tenn Rate Period Adjustment Date. The Tenn Rate shall be the rate detennined by the Remarketing Agent on such date to be the lowest interest rate that will enable such Bond, upon adjustment, to be remarketed at par (plus any accrued interest) taking into account the maturity date of such Bond and amortization requirements with respect to the Bonds of such maturity date. The Remarketing Agent shall detennine the schedule of principal payments on the Bonds to be converted to a Tenn Rate to achieve annual level debt service with respect to the converted Bonds. In making such schedule, the Remarketing Agent shall, to the extent necessary, alternately round down and up to the nearest $5,000 the amount allocable to the Bonds which are being converted; The Remarketing Agent shall allocate the Bonds to be converted to a Tenn Rate between serial bonds and tenn bonds in such manner as shall produce the lowest aggregate interest payable with respect to such Bonds; and The Remarketing Agent shall set the interest rate on each Bond to be converted to a Tenn Rate of a particular maturity date at the lowest interest rate that will enable such Bond, upon adjustment, to be remarketed at par (plus any accrued interest) taking into account the maturity date of such Bond and amortization requirements with respect to the Bonds of such maturity date. The foregoing notwithstanding, the City may agree to another method for providing for payment of principal of the Bonds after the Tenn Rate Adjustment Date if (i) the Remarketing Agent deems the utilization of such other method necessary in order to remarket the Bonds at a price of par and (ii) there is delivered to the Trustee and the City by the Company an Opinion of Bond Counsel to the effect that utilization of such other method will not adversely affect the validity of any Bonds or the Tax-Exempt status of interest on the Bonds. Notwithstanding the foregoing, if, for any reason, a Tenn Rate for any Tenn Rate Period shall not be detennined or effective or if an adjustment from a Tenn Rate Period to another Rate Period shall not be effective, the Rate Period for (i) the PARS Bonds shall continue be subject to the Auction Procedures on the Auction Dates with respect to the PARS Bonds which otherwise would have been converted excluding however, the Auction Date falling on the Business Day next preceding the failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date, and the interest rate shall continue to be the PARS Rate; provided, however, that the interest rate borne by the PARS Bonds during the Auction Period commencing on such failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Tenn Rate Adjustment Date will be the Maximum Interest Rate, and the Auction Period will be the seven-day Auction Period; and (ii) other Bonds except PARS Bonds shall automatically convert to a Daily Rate Period. If a Daily Rate for the first day of such Daily Rate Period is 13 (;).. ~'8' 3 LA! 53907Iv7 not determined as provided herein under the heading "The Series Bonds and the Daily Rate Period", the Daily Rate for the fITst day of such Daily Rate Period shall be one hundred twenty percent (120%) of the most recent BMA Municipal Swap Index theretofore published in The Bond Buyer or, in the event that such BMA Municipal Swap Index is not published or is otherwise unavailable, one hundred twenty percent (120%) of such other comparable index as selected by the Company with the written consent of the Remarketing Agent, and such Daily Rate shall be communicated to the Trustee and Paying Agent by or on behalf of the Company. In no event shall any Term Rate be greater than the Maximum Interest Rate. No Opinion of Bond Counsel shall be required in connection with the automatic adjustment to the Daily Rate or the Auction for PARS Bonds pursuant to this paragraph. If on the proposed Term Rate Adjustment Date any condition precedent to such adjustment is not satisfied and the Bonds bear interest at the PARS Rate, the Trustee will give "Titten notice by first class mail postage prepaid as soon as practicable and in any event not later than the next succeeding Business Day to the PARS Bondholders, the City and [the Bond Insurer] that such adjustment has not occurred, that the PARS Bonds will not be purchased on the failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date. Adjustment to or Continuation of Term Rate. At any time (subject to the provisions of clause (2) of this paragraph), the Company, by written notice to the City, the Trustee, the Paying Agent, the Auction Agent, if any, and the Broker-Dealer, if any, and the Remarketing Agent, may elect that the Bonds bearing interest at a Daily Rate, Weekly Rate, Variable Term Rate, Term Rate or PARS Rate [(in an amount which is an Authorized Denomination for the new Rate Period and in the case of Bonds bearing interest at a PARS Rate in the event of a partial adjustment, leaves at least $10,000,000 in aggregate principal amount of such series of the Bonds bearing interest at a PARS Rate unless consented to by the Broker-Dealers)] shall bear, or continue to bear, interest at a Term Rate. Such notice shall specifY the effective date of each Term Rate Period, which shall be (l) a Business Day not earlier than the thirtieth day (the twentieth day if the then cun-ent Rate Period is a Term Rate Period) following the seventh Business Day after the date of receipt by the Trustee and the Paying Agent of such notice (or such shorter period after the date of such receipt as shall be acceptable to the Paying Agent); (2) in the case of an adjustment from a Term Rate Period, a day on which the Bonds of such Series would be permitted to be redeemed at the option of the Company pursuant to the Indenture (see "THE BONDS - Optional Redemption - Optional Redemption During the Term Rate Period" herein) or the day immediately following the last day of the then cun-ent Term Rate Period; (3) in the case of an adjustment from an PARS Rate Period, the day immediately following the end of the final Auction Period and (4) in the case of an adjustment from a Variable Term Rate Period either (i) the day immediately following the last day of the then cun-ent Variable Term Rate Period, or (ii) for each Bond of such Series, the day immediately following the last day of the last Variable Term Segment for such Bond in the then cun-ent Variable Term Rate Period as determined in accordance with clause (a) or (b), respectively, under "THE BONDS - Variable Term Rate Period - Adjustment from Variable Term Rates"; provided, however, that if prior to the Company's making such election, any Bonds of such Series shall have been called for redemption and such redemption shall not have theretofore been effected, the effective date of such Term Rate Period for all Bonds of such Series shall not precede such redemption date. On or before the Business Day preceding the effective date specified in the Company's notice of an adjustment to or continuation of a Term Rate Period, the Company shall give written notice to the City, the Trustee, the Paying Agent, the Auction Agent, if any, and the Broker-Dealer, if any, and the Remarketing Agent, which notice (l) shall specifY the last day of such Term Rate Period, (2) may specifY two or more consecutive Term Rate Periods and the duration of each such Term Rate Period, (3) may elect that such Term Rate Period shall be automatically renewed for successive Term Rate Periods each having the same duration as the Term Rate Period so specified; provided, however that if the last day of any such successive Term Rate Period shall not be a day immediately preceding a Business Day, then 14 d- g'f LAI 539071v7 such successive Tenn Rate Period shall end on the first day immediately preceding the Business Day succeeding such day, or if such day would be after the day preceding the maturity date of such Bonds, such succeeding Tenn Rate Period shall end on the day preceding the maturity date of the Bonds of such Series; and provided, further, that such election must be accompanied by an Opinion of Bond Counsel to the effect that such continuing automatic renewals of such Tenn Rate Period (a) are authorized or pennitted by the Indenture and the Law, and (b) will not adversely affect the Tax-Exempt status of interest on the Bonds, and (4) may specify for such Tenn Rate Period(s) optional redemption provisions, prices and periods different fTom those set out in the Indenture and herein (see "THE BONDS - Optional Redemption"). If, by the date required to give notice to Bondholders pursuant to the next paragraph, the Trustee shall not have received notice of the Company's election that the Bonds of such Series shall bear interest at a Daily Rate, a Weekly Rate, a Tenn Rate or a Variable Tenn Rate accompanied by appropriate opinions of Bond Counsel, the succeeding Rate Period shall be a Daily Rate Period, except that for Bonds bearing interest at a PARS Rate an Auction for such PARS Bonds will be held. No Opinion of Bond Counsel shall be required in connection with the automatic adjustment to a Daily Rate or the Auction for PARS Bonds pursuant to this paragraph. If a Daily Rate for the first day of such Daily Rate Period is not detennined as provided in "THE BONDS - The Series - Bonds and the Daily Rate Period", the Daily Rate for the first day of such Daily Rate Period shall be one hundred twenty percent (120%) of the most recent BMA Municipal Swap Index theretofore published in The Bond Buyer or, in the event that such BMA Municipal Swap Index is not published or is otherwise unavailable, one hundred twenty percent (120%) of such other comparable index as selected by the Company with the written consent of the Remarketing Agent, and such Daily Rate shall be communicated to the Trustee and Paying Agent by or on behalf of the Company. Notice of Adjustment to or Continuation of Tenn Rate. The Trustee shall give notice by mail of an adjustment to or continuation of a Tenn Rate Period to the holders of the affected Bonds not less than 30 days (20 days if the then current Rate Period is a T eon Rate Period) prior to the effective date of such Tenn Rate Period. Such notice shall state (l) that the interest rate on such Bonds will be adjusted to, or continue to be, a Tenn Rate, (2) the effective date of the Tenn Rate Period, (3) that such Bonds shall be subject to mandatory tender for purchase on such effective date, (4) the procedures for such mandatory tender, and (5) that the holders of such Bonds do not have the right to retain their Bonds on such effective date. Opinion of Bond Counsel The adjustment from a Variable Tenn Rate Period, PARS Rate Period, Daily Rate Period or Weekly Rate Period to a Tenn Rate Period, the adjustment from a Tenn Rate Period of one duration to a Tenn Rate Period of another duration or with different optional redemption rights, any adjustment to a Variable Tenn Rate Period, any adjustment fTom a Daily Rate Period, Weekly Rate Period or Variable Tenn Rate Period to a PARS Rate Period, and the adjustment fTom a Tenn Rate Period to a PARS Rate Period, a Daily Rate Period or Weekly Rate Period, is conditioned in each case on the delivery by nationally recognized bond counsel of an opinion to the effect that the adjustment is authorized or pennitted by the Indenture and the Law and will not adversely affect the Tax-Exempt status of interest on the Bonds. Notwithstanding the foregoing, no opinion of counsel shall be required in the event of an automatic adjustment to a Daily Rate Period occurring as a result of a failure to set a Tenn Rate or the ineffectiveness of an adjustment from a Tenn Rate Period to another Rate Period. 15 :;.-~G LA! 53907]v7 f Determinations Binding The establishment and detennination of the various interest rates and the various Rate Periods referred to above shall be conclusive and binding upon the Remarketing Agent, the Trustee, the Paying Agent, the City, the Company and the holders of the Bonds. Rescission of Election Notwithstanding anything herein to the contrary, the Company may rescind any election by it to adjust to or continue a Rate Period with respect to the Bonds as described above prior to the effective date of such adjustment or continuation by giving written notice thereof to the City, the Trustee and the Remarketing Agent prior to such effective date. If the Trustee receives notice of such rescission prior to the time the Trustee has given notice to the holders of the Bonds of any affected Series, then such notice of adjustment or continuation shall be of no force and effect. If the Trustee receives notice úom the Company of rescission of an adjustment to or continuation of a Rate Period after the Trustee has given notice thereof to the holders of the Bonds of such Series, then the Rate Period for the Bonds of such Series shall automatically adjust to a Daily Rate Period on the date originally scheduled for such adjustment or continuation except that for Bonds bearing interest at a PARS Rate an Auction for such PARS Bond will be held on such date as if no notice of adjustment had ever been given. No opinion of nationally recognized bond counsel shall be required in connection with the automatic adjustment to a Daily Rate Period or the Auction for the PARS Bonds pursuant to this paragraph. If a Daily Rate for the first day of such Daily Rate Period is not detennined as provided under "THE BONDS - Daily Rate Period - Daily Rate," the Daily Rate for the first day of such Daily Rate Period shall be 120% of the most recent BMA Municipal Swap Index published in The Bond Buyer or, in the event such index is no longer published, another index selected in accordance with the Indenture. Mandatory Tender for Purchase The Bonds are subject to mandatory tender for purchase at a purchase price equal to 100% of the principal amount thereof plus accrued interest, if any, to the purchase date described below upon the occurrence of any of the following events: (a) as to any Bond, on the effective date of any change in a Rate Period for such Bond; (b) as to each Bond in a Variable Tenn Rate Period, on the day next succeeding the last day of any Variable Tenn Segment with respect to such Bond; (c) as to all Bonds, on the Business Day preceding the tennination of any letter of credit, insurance policy, guarantee or standby purchase agreement provided by a financial institution, any mortgage bonds, debentures or other debt obligations or any other support or liquidity arrangement or security, if any, provided by the Company (a "Credit Facility") with respect to the Bonds; and (d) as to all Bonds, on the Business Day preceding the providing of any Credit Facility with respect to the Bonds pursuant to the Indenture. The Bonds are also subject to mandatory tender for purchase on the day next succeeding any Tenn Rate Period which ends prior to the day originally established as the last day of such Tenn Rate Period at a purchase price equal to the principal amount thereof plus an amount equal to any premium 16 ~þ?:~ LA! 539071v7 which would have been payable on such day had the Company directed optional redemption of such Bonds on that day plus accrued interest to such date. The Indenture requires that the Trustee give written notice by first class mail to the holders of the Bonds at their addresses shown on the registration books kept by the Registrar, of the tennination of any Credit Facility and of the provision of any proposed substitute or new Credit Facility with respect to the Bonds under the Indenture, not less than fifteen days prior to such tennination or provision, which notice is required to (i) describe generally any Credit Facility in effect prior to such tennination or provision and any substitute or new Credit Facility to be in effect upon such tennination or provision; (ii) state the date of such tennination or provision; and (iii) state the rating or ratings, if any, which the Bonds are expected to receive from any rating agency following such tennination or provision. No holder of any Bond subject to mandatory tender as provided in the Indenture shall have the option to retain such Bond. Notwithstanding any other provision of the Indenture to the contrary, so long as any Bond is held in book-entry fonD, such Bond need not be delivered in connection with any optional tender, or any mandatory tender as to each Bond in a Variable Tenn Rate Period, on the day succeeding the last day of any Variable Tenn Segment with respect to such Bond (unless such tender is simultaneous with a tender for such Bond pursuant to any other mandatory tender provision of the Indenture), and all references to physical delivery of Bonds upon tender shall be ineffective. In such case, payment of the purchase price in connection with such tender shall be made to the registered holder of such Bonds on the date designated for such payment, without further action by the beneficial owner who delivered the tender notice, and transfer of beneficial ownership shall be made in accordance with the procedures of the Nominee. Holder's Option to Tender for Purchase During a Daily Rate Period or a Weekly Rate Period, any Bond or portion thereof in an Authorized Denomination shall be purchased by the Tender Agent from remarketing proceeds or funds received from the Company or any Credit Facility then available for such purpose, at the election of the holders thereof at the times and subject to the conditions described below. [Payment of the Purchase Price of the Series - Bonds will be supported by the Standby Bond Purchase Agreement. See "THE INITIAL SERIES - LIQUIDITY FACILITY" herein. The obligation of the Liquidity Provider to purchase Series - Bonds will be suspended or tenninated immediately without any action on the part of the Liquidity Provider upon certain events. See "THE LIQUIDITY PROVIDER" and "THE INITIAL SERIES ~ LIQUIDITY FACILITY - Events of Default, Suspension and Tennination" and "- Consequences of Events of Default, Suspension and Tennination" herein. The Standby Bond Purchase Agreement does not support the payment of the tender price of Bonds other than the Series - Bonds. During a Weekly Rate Period and a Daily Rate Period, payment of the principal, Purchase Price of, and interest on the Series - Bonds will be supported by the Letter of Credit. See "THE LETTER OF CREDIT AND THE REIMBURSEMENT AGREEMENT" herein. The Letter of Credit does not support the payment of Bonds other than the Series - Bonds.] [The Series - Bonds are not supported by a Credit Facility. Consequently, the holders sources of payment of the Purchase Price will be remarketing proceeds and payments from the Company.] Payments for Bonds purchased will be made by the close of business on the dates specified by the holders thereof for purchase, if the conditions for such purchase described below have been strictly complied with by the holders. Each Bond must be accompanied by an instrument of transfer (which may LA I 539071v7 17 d~ 57 be the fonn printed on the Bond) executed in blank by its holder or duly authorized attorney, with the signature of such holder guaranteed by a. guarantor institution participating in a guarantee program acceptable to the Tender Agent. The Tender Agent may refuse to accept delivery of any Bond for which a proper instrument of transfer has not been provided. The tenn "holder" or "Bondholder" generally means the registered owner of any Bond. However, at any time Bonds are held in book-entry only fonn, (i) such tenns shall also mean any beneficial owner, or nominee of such beneficial owner, of Bonds for purposes of tendering Bonds for purchase at the option of the holder, as described in "THE BONDS - Exercise of Tender Option Rights Relating to Book-Entry Bonds," but not for purposes of receiving payment thereon or notices with respect thereto, and (ii) Bonds need not be delivered in connection with any holder option to tender, and all references to physical delivery of such Bonds shall be ineffective. See "THE BONDS - Exercise of Tender Option Rights Relating to Book-Entry Bonds." Holder Tender for Purchase - Daily Rate Period. During any Daily Rate Period, any Bond (or portions thereof in Authorized Denominations) shall be purchased at the election of the holder on any Business Day at a purchase price equal to the principal amount thereof plus accrued interest, if any, from the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the date of purchase shall be an Interest Payment Date in which case the purchase price shall be equal to the principal amount thereof) upon: (a) delivery to the Tender Agent at the principal corporate trust office of the Tender Agent, not later than 11 :00 a.m., New York City time, on such Business Day, of an irrevocable notice in writing or by telephone which states the principal amount of such Bond to be tendered for purchase and the date of such purchase; and (b) delivery of such Bond, together with the aforementioned instrument of transfer, to the Tender Agent at or prior to 1 :00 p.m., New York City time, on such purchase date. If, after the giving of such irrevocable notice, delivery of such Bond fails to occur, such Bond shall be deemed to have been delivered and will be purchased and the fonner holder will have no claim under the Indenture except for the payment of the purchase price. Holder Tender for Purchase - Weekly Rate Period. During any Weekly Rate Period, any Bond (or portions thereof in Authorized Denominations) shall be purchased at the election of the holder on any Business Day at a purchase price equal to the principal amount thereof plus accrued interest, if any, from the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the date of purchase shall be an Interest Payment Date in which case the purchase price shall be equal to the principal amount thereof) upon: (a) delivery to the Tender Agent at the principal corporate trust office of the Tender Agent of an irrevocable written notice or telephonic notice con finned in writing by 5:00 p.m., New York City time, on any Business Day which states the principal amount of such Bond to be tendered for purchase and the date on which such Bond is to be purchased, which date shall be a Business Day not prior to the seventh day next succeeding the date of the delivery of such notice to the Tender Agent; and (b) delivery of such Bond, together with the aforementioned instrument of transfer, to the Tender Agent at or prior to I :00 p.m., New York City time, on such purchase date. 18 LA! 539071v7 If, after the giving of such irrevocable notice, delivery of such Bond fails to occur, such Bond shall be deemed to have been delivered and will be purchased and the fonner holder will have no claim under the Indenture except for the payment of the purchase price. Bonds in a Rate Period other than the Daily Rate Period and the Weekly Rate Period are not subject to tender for purchase at the election of the holder. Exercise of Tender Option Rights Relating to Book-Entry Bonds For so long as the Bonds are registered in the name of Cede & Co., as nominee for DTC, the tender option rights of holders of Bonds may be exercised only by a Direct Participant of DTC acting, directly or indirectly, on behalf of a beneficial owner of Bonds by giving notice of its election to tender Bonds or portions thereof at the times and in the manner described above. Beneficial owners will not have any rights to tender Bonds directly to the Tender Agent. Procedures under which a beneficial owner may direct a Direct Participant of DTC, or an Indirect Participant of DTC acting through a Direct Participant of DTC, to exercise a tender option right in respect of Bonds or portions thereof in an amount equal to all or a portion of such beneficial owner's beneficial ownership interest therein shall be governed by standing instructions and customary practices detennined by such Direct Participant or Indirect Participant. For so long as the Bonds are registered in the name of Cede & Co., as nominee for DTC, delivery of Bonds required to be tendered for purchase shall be effected by the transfer by a Direct Participant on the applicable purchase date of a book-entry credit to the account of the Tender Agent of a beneficial interest in such Bonds. Payment of Purchase Price If moneys sufficient to pay the purchase price of Bonds to be purchased as described above under "Mandatory Tender for Purchase" and "Holder's Option to Tender for Purchase" shall be held by the Tender Agent on the date such Bonds are to be purchased, such Bonds shall be deemed to have been purchased, irrespective of whether or not such Bonds shall have been delivered to the Tender Agent, and the fonner holder shall have no claim under the Indenture or otherwise except for the payment of the purchase price thereof. Payment of the purchase price of any such Bond shall be made in immediately available funds (except in clearinghouse funds for Bonds in Tenn Rate Periods unless such Bonds are held in book-entry only fonn), but only upon presentation and surrender of such Bond to the Tender Agent (except for Bonds held in book-entry only fonn). Payment of the purchase price of any Bonds held in book-entry fonn shall be made in immediately available funds by 2:30 p.m., New York City time. Remarketing of Bonds The Remarketing Agent shall use its best efforts to remarket any Bond required to be purchased as described above which it has agreed to remarket pursuant to a remarketing agreement. Any Bond so remarketed shall remain outstanding and may again become subject to purchase. If any such Bond shall not be remarketed, the Company may purchase or provide for the purchase of such Bond. Optional Redemption Optional Redemption During PARS Rate Period. During any Auction Period, the Bonds shall be subject to such redemption on the Business Day succeeding the last day of the Auction Period, at a redemption price equal to 100% of the principal amount thereof plus accrued interest, if any, to the date of redemption; provided that after any such redemption there shall be not less than $ I 0,000,000 in aggregate 19 ~~. 89 LA I 539071v7 principal amount of any Series of Bonds bearing interest at a PARS Rate unless otherwise consented to by the Broker-Dealers. Optional Redemption During Daily or Weekly Rate Period. On any Business Day during a Daily Rate Period or Weekly Rate Period, the Bonds may be redeemed at the option of the Company, in whole or in part by lot, at a redemption price equal to the principal amount thereof plus accrued interest, if any, to the date of redemption. Optional Redemption During any Variable Tenn Rate Period. During any Variable Tenn Rate Period, the Bonds may be redeemed at the option of the Company, in whole or in part by lot, on the Business Day next succeeding the last day of each Variable Tenn Segment for such Bond at a redemption price equal to 100% of its principal amount. Optional Redemption During Tenn Rate Period. During any Tenn Rate Period and on the Business Day next succeeding the last day of each such Rate Period, the Bonds may be redeemed at the option of the Company, in whole or in part, and if in part by lot, at any time on or after the L- anniversary of the effective date of such Rate Period, at a redemption price (expressed as percentages of principal amount) equal to _%, declining by _% annually thereafter to 100%.] [As applicable, will expand to provide optional redemption provisions during Tenn Rate Periods of less than ten year duration.] Notwithstanding the foregoing, the Company and the Remarketing Agent may, not later than 15 days before the first day of any Tenn Rate Period, give notice to the City and the Trustee setting forth a redemption schedule different from that set forth in this paragraph, accompanied by (i) written consent of the Credit Provider, if any, for such Tenn Rate Period, and (ii) an Opinion of Bond Counsel to the effect that such change will not adversely affect the Tax-Exempt status of interest on the Bonds; and upon such notice and delivery of the consent, if any, and the opinion, such different redemption schedule shall apply to any redemption pursuant to this paragraph for such Tenn Rate Period, without further action by any party. Extraordinary Optional Redemption. The Bonds are subject to redemption in whole or in part, and if in part by lot, at any time at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date upon receipt by the Trustee of a written notice from the Company stating that any of the following events has occurred and that it therefore intends to exercise its option to prepay the payments due under the Loan Agreement in whole or in part pursuant to the Loan Agreement and thereby effect the redemption of the Bonds in whole or in part to the extent of such prepayments: (i) The Project or a portion thereof, the original cost of which is equal to or greater than $500,000, shall have been damaged or destroyed to such extent that, in the opinion of the Company (A) it is not practicable or desirable to rebuild, repair or restore the Project or such portion thereof within a period of six consecutive months following such damage or destruction, (B) the Company is or will be thereby prevented from canying on its nonnal operations at the Project or such portion thereof for a period of six consecutive months, or (C) the costs of restoration thereof would substantially exceed the net proceeds of insurance carried thereon; (ii) Title to, or the temporary use of, the Project or a portion thereof the original cost of which is equal to or greater than $500,000 shall have been taken under the exercise of the power of eminent domain, including such a taking that results (or is likely to result) in the Company being prevented from carrying on nonnal operations at the Project or such portion thereof for a period of six consecutive months or as renders the Project or such portion thereof unsuitable for use by the Company; 20 #I' 0 LAl 53907lv7 (iii) Unreasonable burdens or excessive liabilities, in the opinion of the Company, shall have been imposed on the Company including, without limitation, federal, state or other ad valorem, property, income or other taxes not being imposed on the date of the Loan Agreement, which shall have resulted in a cessation of all or substantially all of its nonnal operations at the Project or a portion thereof the original cost of which is equal to or greater that $500,000 for a period of six consecutive months; or (iv) Any court or administrative body shall enter a judgment, order or decree requiring the Company to cease all or any substantial part of its operations at the Project or a portion thereof the original cost of which is equal to or greater than $500,000, to such extent that, in the opinion of the Company, it is or will be thereby prevented from caITying on its nonnal operations at the Project or such portion thereof for a period of six consecutive months. Special Optional Redemption. During any Tenn Rate Period, the Bonds are subject to redemption, in whole or in part by lot, on any date prior to the applicable fIrst date for optional redemption as described under "THE BONDS - Optional Redemption - Optional Redemption During Tenn Rate Period," at a redemption price equal to the applicable redemption price that would be in effect on such first date for optional redemption, plus interest accrued thereon to the date fixed for redemption, if the Company delivers to the Trustee a written certificate to the effect that (i) by reason of a change in use of the Project or any portion thereof, the Company has been unable, after reasonable effort, to obtain an opinion of nationally recognized bond counsel that it is more likely than not that Section ISO of the Internal Revenue Code of 1986 (the "Code") will not prevent interest payable under the Loan Agreement from being deductible for federal income tax purposes, and (ii) as a result, the Company has elected to prepay the amounts due under the Loan Agreement equal to the principal amount of Bonds to be redeemed. In such case, the Trustee shall only redeem such principal amount of Bonds as the Company detennines is necessary to assure that the Company retains its right to all such interest deductions otherwise allowable under the Code, or, if a partial redemption will not enable the Company to retain the right to deduct such interest, the Company may direct the Trustee to redeem all the outstanding Bonds or any portion thereof. . With respect to any Tenn Rate Period, the Company may specifY redemption provisions, redemption prices and periods other than those set forth above, provided that such specification shall be accompanied by an opinion of nationally recognized bond counsel to the effect that such changes are authorized or pennitted by the Law and the Indenture and will not adversely affect the Tax-Exempt status of interest on the Bonds. Mandatory Redemption The Bonds shall be subject to mandato!)' redemption, on any date, prior to their stated maturity, in whole (except as provided herein) at a redemption price equal to 100% of the principal amount thereof, plus interest accrued thereon to the date fixed for redemption, from amounts which are required to be prepaid by the Company under the Loan Agreement upon the occurrence of any of the events described in clause (i), (ii) or (iii) below, such mandato!)' prepayments by the Company to be made within 180 days after the occurrence of any of the events described in clauses (i) or (ii) below and immediately upon the occurrence of any event described in clause (iii) below: (i) As a result of any changes in the Constitution of the United States of America or the California Constitution or as a result of any legislative, judicial or administrative action (whether state or federal) or by final decree, judgment or order of any court or administrative body (whether state or federal) entered after the contest thereof by the Company in good faith, the Loan Agreement shall have become void or unenforceable or impossible of perfonnance in 21 c9 ~Cj I LA! 539071v7 accordance with the intent and purpose of the parties thereto, or shall have been declared unlawful; (ii) A detennination that interest payable on any Bond is includable in the gross income for federal income tax purposes of the holder of such Bond (other than a holder who is a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code [or of Section I 03 (b)(l 3) of the Internal Revenue Code of 1954 (the "1954 Code")]). Such detennination shall be deemed to have been made on the date on which, due to the untruth or inaccuracy of any representation or warranty made by the Company in the Loan Agreement, or in connection with the offer and sale of the Bonds, or the breach of any covenant or warranty of the Company contained in the Loan Agreement, interest on the Bonds, or any of them, is detennined to be includable in the gross income for federal income tax purposes of the holders thereof (other than a holder who is a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code [or Section 103(b)(l3) of the 1954 Code]) by a final administrative detennination of the Internal Revenue Service or judicial decision of a court of competent jurisdiction in a proceeding of which the Company received notice and in which the Company was afforded an opportunity to participate to the full extent pennitted by law. A detennination or decision will not be considered final for purposes of the preceding sentence unless the holder or holders of the Bonds involved in the proceeding in which the issue is raised (A) shall have given the Company and the Trustee prompt notice of the commencement thereof and (B) shall have offered the Company the opportunity to control the proceeding; provided the Company agrees to pay all expenses in connection therewith and to indemnifY such holder or holders against all liability for such expenses (except that any such holder may engage separate counsel, and the Company shall not be liable for the fees or expenses of such counsel); and such proceeding shall not be subject to a further right of appeal or shall not have been timely appealed; or (iii) The acceleration of payments due under the Loan Agreement following an "Event of Default" thereunder. For purposes of clause (i) above, the Trustee shall not be required to give notice of mandatory prepayment unless a responsible officer of the Trustee shall have actual knowledge that the Loan Agreement shall have become void, unenforceable or impossible of perfonnance or shall have been declared unlawful as described in said clause. Upon the Occurrence of the detennination or decision described in clause (ii) above, the Bonds will be redeemed in whole on any date at a redemption price equal to 100% of the principal amount thereof plus interest accrued to the date of redemption, provided that if in the opinion of nationally recognized bond counsel delivered to the Trustee, the redemption of a specified portion of the Bonds outstanding would have the result that interest payable on the Bonds remaining outstanding after such redemption would not be includable for federal income tax purposes in the gross income of any holder of a Bond (other than a holder who is a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code [103(b)(13) of the 1954 CodeD, then the Bonds shall be redeemed in part by lot (in Authorized Denominations) in such amount as bond counsel in such opinion shall have detennined is necessary to accomplish that result. Notice of Redemption Notice of any redemption (identifYing, among other things, portions of Bonds to be redeemed) shall be given by the Trustee, for and on behalf of the City, by mailing by first class mail a copy of the redemption notice, not less than 15 days (30 days if the then current Rate Period is a Tenn Rate Period) nor more than 60 days prior to the redemption date to (i) the registered holder of each Bond to be 22 :;2p9~ LA] 539071v7 redeemed at such registered holder's address as it appears on the registration books maintained by the Registrar on the date such notice is mailed; (ii) the Securities Depository listed in the Indenture, and (iii) one or more Information Services listed in the Indenture. Failure to mail such notice to any of the parties listed in the previous sentence, or any defect in the mailed notice, shall not affect the validity of the proceedings for such redemption of any Bonds and shall not extend the period for making elections or in any way change the rights of the holders of the Bonds to elect to have their Bonds purchased as provided in the Indenture. In the event of a failure by the Company to give any notice of mandatory prepayment of Bonds required by the Loan Agreement, such notice may be given by the City or any holder or holders of 10% or more in aggregate principal amount of Bonds Outstanding not less than 120 days after the occurrence of an event specified in clause (i) or (ii) under "THE BONDS - Mandatory Redemption" and not less than five days after the occurrence of an event specified in clause (iii) under "THE BONDS - Mandatory Redemption." In the event that a responsible officer of the Trustee has actual knowledge of the occurrence of any event specified in clauses (i) through (iii) under "THE BONDS - Mandatory Redemption" and the Trustee shall not have received a notice of mandatory prepayment under the Loan Agreement within 180 days of an event specified in such clause (i) or (ii), or within five days of an event specified in such clause (iii), the Trustee shall give the notice of mandatory prepayment required by the Loan Agreement. With respect to any notice of optional redemption of Bonds as described under "THE BONDS - Optional Redemption," unless upon the giving of such notice such Bonds shall be deemed to have been paid within the meaning of the Indenture, such notice shall state that such redemption shall be conditional upon the receipt by the Trustee on or prior to the date fixed for such redemption of amounts sufficient to pay the principal of, and premium, if any, and interest on, such Bonds to be redeemed, and that if such amounts shall not have been received said notice shall be of no force and effect and the City shall not be required to redeem such Bonds. In the event that such notice of redemption contains such a condition and such amounts are not so received, the redemption shall not be made and the Trustee shall within a reasonable time thereafter give notice, to the persons and in the manner in which the notice of redemption was given, that such amounts were not so received. Book-Entry System The following description of DTC and the procedures and record keeping with respect to beneficial ownership interests in the Bonds, payment of principal, purchase price, interest and premium, if any, on the Bonds to Direct Participants, Indirect Participants or Beneficial Owners, confirmation and transfer of beneficial ownership interest in such Bonds and other related transactions by and between DTC, the Direct Participants, the Indirect Participants and the Beneficial Owners is based solely on information provided by DTC, which source is believed to be reliable, but the City, the Company, the Trustee, the Remarketing Agent and the Underwriter does not assume any responsibility therefor. Accordingly, no representations can be made concerning these matters and the Direct Participants, the Indirect Participants and the Beneficial Owners should not rely on the following information with respect to such matters but should instead confirm the same with DTC or the Direct Participants or the Indirect Participants, as the case may be. The Depository Trust Company ("DTC"), New York, New York, 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 each Series of the Bonds, each in the aggregate principal amount of such Bond, and will be deposited with DTc. [If, however, the aggregate principal amount of [any] Bond exceeds $500 million, one certificate will be 23 ;;r LAI 539071v7 issued with respect to each $500 million of principal amount, and an additional certificate will be issued with respect to any remaining principal amount of such Bond.] 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 Unifonn Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17 A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 2 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-US. 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, 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. 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 confinnation from DTC of their purchase. Beneficial Owners are, however, expected to receive written confinnations 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 books of Direct and Indirect 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 Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co., or such other name as may be 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 mayor may not be the Beneficial Owners. The Direct and Indirect 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. Beneficial Owners of Bonds may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the Bonds, such 24 :; ~ LA! 539071v7 as redemptions, tenders, defaults, and proposed amendments to the Bond documents. For example, Beneficial Owners of Bonds may wish to ascertain that the nominee holding the Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them. Redemption notices shall be sent to DTc. If less than all of the Bonds within a Series are being redeemed, DTC's practice is to detennine by lot the amount of the interest of each Direct Participant in such issue to be redeemed. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to Bonds unless authorized by a Direct Participant in accordance with DTC's Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the City 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). Redemption proceeds, principal, premium, if any, 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 infonnation ITom the City 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 fonn or registered in "street name," and will be the responsibility of such Participant and not of DTC nor its nominee, the Trustee, the Paying Agency, the Company or the City, subject to any statutory or regulatory requirements as may be in effect ITom time to time. Payment of redemption proceeds, principal, premium, if any, and interest payments to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the City or the Paying Agent, disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants. [A Beneficial Owner of Series - Bonds shall give notice to elect to have its Series - Bonds purchased or tendered, through its Participant, to the Remarketing Agent, and shall effect delivery of such Series - Bonds by causing the Direct Participant to transfer the Participant's interest in the Series- Bonds, on DTC's records, to the Remarketing Agent The requirement for physical delivery of Series - Bonds in connection with an optional tender or a mandatory purchase will be deemed satisfied when the ownership rights in the Series - Bonds are transferred by Direct Participants on DTC's records and followed by a book-entry credit oftendered Bonds to Remarketing Agent's DTC account] DTC may discontinue providing its services as depository with respect to the Bonds at any time by giving reasonable notice to the City or the Trustee. Under such circumstances, in the event that a successor depository is not obtained, Bond certificates are required to be printed and delivered. The City (with the concurrence of the Company) 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. The City and the Company cannot and do not give any assurances that DTC will distribute to Participants, or that Participants or others will distribute to the Beneficial Owners, payments of principal of, interest and premium, if any, on the Bonds paid or any redemption or other notices or that they will do so on a timely basis or will serve and act in the manner described in this Official Statement Neither the 25 ~ 95 LA! 539071v7 City, the Company nor the Underwriter are responsible or liable for the failure of DTC or any Direct Participant or Indirect Participant to make any payments or give any notice to a Beneficial Owner with respect to the Bonds or any error or delay related thereto. Transfer and Exchange of Bonds If the book-entry system is discontinued, the Bonds will be transferable and exchangeable for a like principal amount of Bonds of the same Series and tenor, in Authorized Denominations, on the registration books maintained by the Registrar. The transfer of any Bond will be made upon the surrender thereof to the Registrar by the registered holder or his or her duly authorized attorney with a written instrument of transfer in a fonn approved by the Registrar. Any registration of transfer or exchange shall be made without charge, except that the Registrar may make a charge sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with respect to any such exchange. The Registrar shall not be required to register the transfer of or exchange Bonds for a period of 15 days next preceding the date on which the Trustee gives any notice of redemption of Bonds, nor shall the Registrar be required to register the transfer or exchange of Bonds called for redemption. BOND INSURANCE The following information has been furnished by (" "). Reference is made to APPENDIX E hereto for a specimen of the Policy. [To come.] THE INITIAL LIQUIDITY FACILITY The Standby Bond Purchase Agreement [To come.] The Liquidity Provider Reference is made to APPENDIX F hereto for certain infonnation regarding the Liquidity Provider. THE LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT The Letter of Credit [To come.] The Reimbursement Agreement [To come.] The Bank Reference is made to APPENDIX G hereto for certain infonnation regarding the Letter of Credit Bank. 26 LAI 539071v7 THE LOAN AGREEMENTS Certain provisions of the Loan Agreements are summarized below. These summaries do not purport to be complete or definitive and are qualified in their entirety by reference to the full tenns thereof. The description of the provisions set forth under this caption "THE LOAN AGREEMENTS" applies to each Loan Agreement. General The City will loan the proceeds of the sale of the Bonds of each Series to the Company pursuant to a Loan Agreement to be applied, together with funds provided by the Company, to refinance the Project by refunding all of the Prior Bonds. The Company has agreed to make payments under each Loan Agreement as set forth under the caption "Repayment Installments" below. Amendment or Supplement of the Project The Project consists of certain facilities for the local furnishing of electricity as more fully described in the Loan Agreement The Company shall have the right to amend or supplement the Project, subject to the approval, and at the sole discretion, of the City, provided that if the Company desires to amend or supplement the Project in a manner that would alter its description contained in the Loan Agreement, the Company shall have delivered to the City a certificate to the effect that such amendment or supplement to the Project will not have the effect of disqualifying any component of the Project as a facility that may be financed pursuant to the Law, an opinion of nationally recognized bond counsel to the effect that such amendment or supplement will not adversely affect the Tax Exempt status of interest on the Bonds and a copy of the proposed fonn of amended or supplemented description of the Project. Repayment Installments The Company has agreed to make repayment installments ("Repayment Installments") in amounts sufficient to pay the principal (whether at maturity or upon redemption or acceleration) of and premium, if any, and/or interest on the Bonds of the applicable Series when due, to provide or cause to be provided all amounts necessary to purchase Bonds of the applicable Series tendered for purchase in accordance with the Indenture and to pay certain fees and expenses of the Trustee and the City. The Company has the option and in certain circumstances the obligation to prepay all or a portion of the Repayment Installments upon the happening of certain events as described under "THE BONDS - Optional Redemption" or "THE BONDS - Mandatory Redemption." To the extent mandatory redemption of the Bonds of the applicable Series is required as described under "THE BONDS - Mandatory Redemption," the Company must make the required prepayment within] 80 days of the event giving rise to such prepayment or, in some cases, immediately. In the event the Company elects or is required to make a prepayment under the Loan Agreement, the Company must give written notice to the City and the Trustee of such prepayment. In the event of a failure by the Company to give any notice of mandatory prepayment of the Bonds of the applicable Series required by the Loan Agreement, such notice may be given by the City or any holder or holders of ] 0% or more in aggregate principal amount of Bonds of the applicable Series Outstanding not less than ]20 days after the occutTence of an event specified in clause (i) or (ii), and not less than five days after the OCCUtTence of an event specified in clause (iii), under "THE BONDS - Mandatory Redemption." In the event that a responsible officer of the Trustee has actual knowledge of the occutTence of any such event and the Trustee shall not have received a notice of mandatory prepayment under the Loan Agreement within] 80 days of an event specified in such clause (i) or (ii), or 27 LA] 53907]v7 within five days of an event specified in such clause (iii), the Trustee shall give the notice of mandatory prepayment required by the Loan Agreement. The Company's obligations to make payments required by the Loan Agreement and to perfonn and observe the other agreements on its part contained in the Loan Agreement are absolute and unconditional. Until such time as the principal of and premium, if any, and interest on all of the Bonds shall have been fully paid (or provision for the payment thereof shall have been made as required by the Indenture), the Company shall perfonn and observe all of its other agreements contained in the Loan Agreement and will not tenninate the Loan Agreement, except as otherwise provided therein. The obligations of the Company under the Loan Agreement are a general obligation of the Company which will not be secured by a mortgage of, or security interest in, the Project or any other property of the Company. The Project will at all times remain the property of the Company. The obligation of the Company to make payments on the Loan Agreement ranks equally with the unsecured debt of the Company. Credit Facility The Loan Agreement provides that the Company may at any time provide and subsequently tenninate or remove a Credit Facility with respect to the Bonds of the applicable Series; provided, however, that except in connection with a redemption of Bonds of the applicable Series, the Company may not intentionally cause the tennination or substitution of a Credit Facility during a Tenn Rate Period or a Variable Tenn Segment with respect to such Bonds. Such Credit Facility may be (i) any letter of credit, guarantee, insurance policy, or standby purchase agreement, (ii) mortgage bonds, debentures or other debt obligations of the Company or its Parent or (iii) any other support or liquidity arrangement or security provided by the Company. Prior to the provision or tennination by the Company of any Credit Facility (whether in connection with the substitution of an existing Credit Facility or otherwise), there shall be delivered to the City and the Trustee an Opinion of Bond Counsel to the effect that the delivery or tennination, as the case may be, of such Credit Facility is pennitted under the Law and the Loan Agreement and complies with the tenns of the Loan Agreement and that the delivery or tennination, as the case may be, of such Credit Facility will not adversely affect the Tax-Exempt status of interest on the Bonds of the applicable Series. The Loan Agreement provides that not less than twenty-five days prior to the tennination, removal, substitution or delivery of any Credit Facility with respect to the Bonds of the applicable Series, the Company is required to mail written notice of such tennination, removal, substitution or delivery to the Trustee. See "THE BONDS - Mandatory Tender for Purchase" for a description of the method of giving notice of any such tennination, removal, substitution or delivery to the registered owners of Bonds of the applicable Series. The Standby Bond Purchase Agreement and the Letter of Credit are Credit Facilities as defined in the Indenture. Certain Additional Covenants of the Company Maintenance of Corporate Existence. The Company agrees that during the tenn of the Loan Agreement it will maintain its corporate existence in good standing and will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another corporation or penn it one or more other corporations to consolidate or merge into it; provided, that the Company may, without violating the covenants contained in the Loan Agreement, consolidate with or merge into another corporation, or pennit one or more other corporations to consolidate with or merge 28 LA! 539071v7 $" into it, or sell or otherwise transfer to another corporation all or substantially all of its assets and thereafter dissolve, provided that (1) either (A) the Company is the surviving corporation or (B) the surviving, resulting or transferee corporation, as the case may be, (i) assumes and agrees in writing to pay and perfonn all of the obligations of the Company under the Loan Agreement, and (ii) qualifies to do business in the State of California; and (2) the Company shall deliver to the Trustee an Opinion of Bond Counsel to the effect that such consolidation, merger or transfer and dissolution does not in and of itself adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds. Maintenance and Repair. The Company agrees that as long as it owns the Project, it will (i) maintain the Project, or to cause the Project to be maintained, in as reasonably safe condition as its operations shall penn it and (ii) maintain, or cause to be maintained, the Project in good repair and in good operating condition, ordinary wear and tear excepted, making from time to time all necessary repairs thereto and renewals and replacements thereof. Assignments. The rights and obligations of the Company under the Loan Agreement may be assigned to any person in whole or in part, with the written consent of the City, provided that (i) except in the case of a pennitted merger, consolidation or disposition of all or substantially all of the Company's assets (see "Maintenance of Corporate Existence" above), no assignment shall relieve the Company from primary liability for any of its obligations under the Loan Agreement, (ii) the Company shall retain such rights and interests as will penn it it to perfonn its obligations under the Loan Agreement, and any assignee shall assume the obligations of the Company to the extent of the interest assigned and (iii) the City and the Trustee shall be furnished a true and complete copy of such assignment together with an instrument of assumption and an Opinion of Bond Counsel that such assignment will not, in and of itself, result in the interest on the Bonds of the applicable Series being detennined to be includable in the gross income for federal income tax purposes of the owners thereof (other than a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code). Tax Covenants The City covenants and agrees that it has not taken and will not take any action which results in interest to be paid on the Bonds being included in gross income of the holders of the Bonds of the applicable Series for federal income tax purposes, and the Company covenants and agrees that it has not taken or pennitted to be taken and will not take or penn it to be taken any action which will cause the interest on the Bonds of the applicable Series to become includable in gross income of the holders thereof for federal income tax purposes (except for any Bond during any period while such Bond is held by a "substantial user" of the Project or a "related person" within the meaning of Section 14 7( a) of the Code [or Section 103(b)(13) of the 1954 Code]). The Company and the City also respectively agree that they will not directly or indirectly use or penn it the use of the proceeds of the Bonds or other funds or take or omit to take any action if such use, action or omission will cause the Bonds of the applicable Series to be "arbitrage bonds" or otherwise subject to federal income taxation by reason of Sections 103 and 141 through 150 of the Code [or Section 103 of the 1954 Code] and will abide by certain other specified guidelines which are designed to insure that interest on the Bonds of the applicable Series will not become includable in gross income of the holders thereof for federal income tax purposes. Defaults Anyone of the following events shall constitute an event of default under the Loan Agreement: (a) failure by the Company to pay Repayment Installments equal to principal of, premium, if any, and interest on the Bonds of the applicable Series, or the purchase price of 29 LA! 539071 v7 Bonds of the applicable Series tendered in accordance with the Indenture, at the times required to avoid causing an Event of Default under the Indenture; or (b) subject to certain limitations, as more fully described in the Loan Agreement, failure of the Company to observe and perform any covenant, condition or agreement on its part required to be observed or performed by the Loan Agreement (other than a failure resulting in an event of default referred to in (a) above) which continues for a period of 60 days after written notice, which notice shall specify such failure and request that it be remedied, given to the Company by the City or the Trustee, unless the City and the Trustee shall agree in writing to an extension of such time; provided, however, that if the failure stated in the notice cannot be corrected within such period, the City and the Trustee will not unreasonably withhold their consent to an extension of such time if corrective action is instituted within such period and diligently pursued until the default is corrected; or (c) certain specified events of bankruptcy, dissolution, liquidation or reorganization of the Company; or (d) a default under any Credit Facility if the Credit Provider notifies the Trustee in writing that such default shall be treated as an event of default under the Loan Agreement. The Company shall not be deemed in default under clause (b) above if and so long as the Company is unable to carry out its agreement under the Loan Agreement by reason of certain causes or events not reasonably within the control of the Company as set forth in the Loan Agreement. Upon the occurrence of an event of default under the Loan Agreement, the Trustee may, and upon the written request of any Credit Provider or holders of not less than 25% in aggregate principal amount of the Bonds of the applicable Series then outstanding, shall, by notice in writing delivered to the Company, declare the unpaid principal balance of the loan payable under the Loan Agreement and interest accrued thereon to be immediately due and payable. Upon any such acceleration, the Bonds of the applicable Series shall be subject to mandatory redemption as provided in the Indenture. The City or the Trustee also may take whatever action at law or in equity as may be necessary or desirable to collect amounts then due and thereafter to become due and to enforce performance and observance by the Company of any obligation, agreement or covenant under the Loan Agreement. Fees, Expenses and Indemnification The Company has agreed to pay certain initial and annual fees of the City and the Trustee and to pay certain expenses in connection with the financing of the Project In the event the Company should default under any of the provisions of the Loan Agreement, the Company will indemnify the City and the Trustee against certain costs and charges, including the reasonable fees of attorneys incurred in good faith or arising out of or in connection with any collection or enforcement action under the Loan Agreement The Company will also indemnify, defend and hold harmless the City and the Trustee against certain liabilities arising out of or connected with the Project, the issuance of the Bonds of the applicable Series or the performance of the applicable Indenture. Assignment Pursuant to the Indenture, the City will assign to the Trustee the City's rights under and interests in, but not its obligations under, the Loan Agreement, other than its rights to receive its fees and expenses and its rights to indemnification as described therein, and certain rights to receive notices and to provide consents under the Loan Agreement. 30 ;;;- 00 LA! 539071 v7 Amendments Except under certain limited circumstances set forth in the Loan Agreement and the Indenture, the Loan Agreement may not be amended without the written consent of the Trustee and the City. See "The Indenture - Amendments." [THE FIRST MORTGAGE BONDS The following is a summary of certain provisions of the First Mortgage Bonds and Company Mortgage. These summaries do not purport to be complete or definitive and are qualified in their entirety by reference to the full tenns thereof. General The First Mortgage Bonds will share the benefit and security of the Company Mortgage equally and ratably with all other first mortgage bonds outstanding thereunder. The First Mortgage Bonds will be issued as an additional series under the Company Mortgage and will be issued in the principal amount of the Bonds and will mature on the stated maturity dates of the Bonds. The First Mortgage Bonds will bear interest at the same rates, payable at the same times, as the interest on the Bonds. Upon the redemption of Bonds as described under "The Bonds - Optional Redemption" and "The Bonds - Mandatory Redemption," the Company will redeem First Mortgage Bonds equal in principal amount to the Bonds to be redeemed. If the principal amount of the Bonds shall become immediately due and payable upon the acceleration of maturity of the Bonds, the Company will immediately redeem all of the First Mortgage Bonds. Under the Company Mortgage, the First Mortgage Bonds are also subject to redemption at 100% of the principal amount thereof, plus interest accrued thereon, upon the application of cash received by the Company Mortgage Trustee in case of the sale or other disposition of all or substantially all of the Company's electric distribution system in the City of San Diego. The obligation of the Company to make any payment of the principal of, premium, if any, or interest on the First Mortgage Bonds, whether at maturity, upon redemption or otherwise, will be reduced by the amount of any reduction under the indenture of the corresponding payment required to be made by the City thereunder in respect of the payment of principal of, premium, if any, or interest on the Bonds. The First Mortgage Bonds will be registered in the name of and owned and held by the Trustee for the benefit of the holders of the Bonds and will not be transferable except to a successor trustee under the Indenture. At the time Bonds cease to be outstanding under the Indenture, the Trustee will surrender to the Company Mortgage Trustee an equal aggregate principal amount of First Mortgage Bonds. Security In the opinion of counsel for the Company, the First Mortgage Bonds, when issued will be secured by the Company Mortgage which constitutes a valid first lien upon all property (except as stated in the following paragraph) and &anchises owned by the Company for the equal pro rata security of all bonds issued or to be issued thereunder, subject only to pennitted liens, non-callable liens, if any, the lien of the Company Mortgage Trustee for its expenses and advances, and to the provisions relating to any sinking fund or similar fund for the benefit of bonds of any particular series. 31 ;), Ø' Ol LA! 539071v7 ¡ i , f There are excepted from the lien of the Company Mortgage gas, electricity and steam, contracts, choses-in-action and securities, merchandise and appliances for sale or lease, motor vehicles, timber, minerals and mineral rights, and oil, coal or gas or rights therefor in land owned by the Company, fuel held for consumption, receivables, cash, and the last day of the term of leasehold estates. The Company Mortgage contains provisions for subjecting to the lien thereof (subject to certain limitations in the case of consolidation or merger) all property acquired by the Company after the date of the Company Mortgage, subject to the limitations and exceptions stated in the two preceding paragraphs. As a Maintenance Fund, the Company covenants to pay to the Company Mortgage Trustee annually on May I, an amount equal to 15% of its gross operating revenues for the preceding calendar year, less credits at the Company's option for (a) maintenance expenses, (b) retirement of bonds, (c) amounts of available permanent property additions, and (d) 15% of that portion of gross operating revenues as is attributable to rate increases granted to the Company since July I, 1973 to offset increases in its cost of fuel for electric generation and in its cost of natural gas. Withdrawals by the Company from the Maintenance Fund may be made on the basis of retirements of bonds and amounts of available permanent property additions. See APPENDIX B hereto for certain financial information, recem developments and the availability of additional information regarding the Company. Issuance of Additional First Mortgage Bonds Additional bonds secured by the Company Mortgage may be issued on the basis of (a) 60% of the cost or fair value, whichever is less, of the amount of available permanent property additions, after making the required deductions on account of the amount of net property retirements, (b) retired bonds, the retirement of which has not been otherwise used under the Company Mortgage, and (c) deposit of an equal amount of cash with the Company Mortgage Trustee, which cash may be withdrawn for an amount of available permanent property additions equal to 166-2/3% of such cash or for retirement of bonds. As of , 2004 there was approximately $- million of available bondable property on the basis of which additional bonds may be issued before giving effect to the issuance of the First Mortgage Bonds. No additional bonds may be issued on basis (a), (b) (except certain types of refunding bonds) or (c) unless the earnings applicable to bond interest for a specified twelve-month period are equal to the greater of two and one-half times the annual interest requirements on, or 10% of the principal amount of, the bonds including the First Mortgage Bonds about to be issued. As of , 2004 before giving effect as of that date to the issuance of the First Mortgage Bonds, the earnings applicable to bond interest were - times the annual interest requirements on the outstanding bonds. Additional bonds may vary from the First Mortgage Bonds as to maturity, interest rate, redemption prices, sinking fund and in certain other respects. Release Provisions In the absence of a completed default, the Company may at any time without any release by the Company Mortgage Trustee (a) sell free from the lien of the Company Mortgage, among other things, obsolete equipment, materials and supplies at not less than the fair value, provided they are replaced by other equipment, materials and supplies of equivalent value, and real property worth less than $2,000, provided the proceeds thereof are deposited with the Company Mortgage Trustee, and (b) surrender any franchise or governmental consent or permit, or modifY or change any of the terms thereof, provided that it may still conduct its business in the same territory for the same time or it determines that the conduct of such business is no longer desirable. 32 I LA! 53907!v7 The Company Mortgage also contains provisions for the release by the Company Mortgage Trustee of property subject to the Company Mortgage (a) upon the deposit of the proceeds from a sale or exchange thereof with the Company Mortgage Trustee in the absence of a completed default and (b) taken by eminent domain, the proceeds of which are deposited with the Company Mortgage Trustee. Modification of the Company Mortgage With the consent of the Company, the provisions of the Company Mortgage may be changed by the affirmative vote or consent of the holders of 66-2/3% in principal amount of the bonds then outstanding thereunder, except that, among other things, the maturity of a bond may not be extended, the interest rate reduced or the tenns of payment of principal interest changed without the consent of the holder of the bond. Events of Default The following is a summary of events defined in the Company Mortgage as "completed defaults": (a) failure to pay principal of any bond outstanding thereunder when due and payable, (b) failure to pay interest within 30 days after the same becomes due and payable, (c) the expiration of 30 days after the adjudication of the Company as a bankrupt or the entry of an order approving a petition seeking reorganization of the Company, unless during such period such adjudication or order shall be vacated, (d) the expiration of 90 days following the appointment of a receiver of all or substantially all of the property of the Company, unless during such period such appointment shall be vacated, (e) the filing by the Company of a voluntary petition in bankruptcy or the making of a general assignment for the benefit of creditors or the consent by the Company to the appointment of a receiver or the filing by the Company of a petition or answer seeking reorganization or the filing by the Company of a petition to take advantage of any insolvency act, and (t) failure to perfonn any other covenant or agreement contained in the Company Mortgage or any bond outstanding thereunder within 60 days following the mailing by the Company Mortgage Trustee or by the holders of at least 15% in amount of such bonds of a written demand that such failure be cured. Concerning the Company Mortgage Trustee , , California, is the Company Mortgage Trustee. In the case of a completed default, the Company Mortgage Trustee may, and upon request of the holders of a majority in principal amount of the bonds then outstanding under the Company Mortgage shall, declare all such bonds due and payable. In case of a completed default it is obligatory upon the Company Mortgage Trustee to take the actions provided in the Company Mortgage to enforce payment of such bonds and for the enforcement of the lien of the Company Mortgage upon being requested to do so by the holders of a majority in principal amount of such bonds then outstanding affected by such default and upon being indemnified against the costs, expenses and liabilities to be incuued therein or thereby.] THE INDENTURES The following, in addition to certain infonnation contained under the heading "THE BONDS," is a summary of certain provisions of each Indenture. These summaries do not purport to be complete or definitive and are qualified in their entirety by reference to the full tenns of the Indenture. The description of the provisions set forth under this caption "THE INDENTURES" applies to each Indenture. 33 ~-IO3 LA! 539071v7 Pledge of Revenues Pursuant to the Indenture, all of the Revenues (as defined below), to the extent the City has any interest therein, are pledged to the punctual payment of the principal of and interest and premium, if any, on the Bonds of the applicable Series. Said pledge constitutes a first and exclusive lien on the Revenues and any Credit Facility for the payment of the Bonds of the applicable Series in accordance with the tenDS thereof. Bond Fund The Trustee shall deposit in the Bond Fund established under the Indenture all accrued interest, if any, on the Bonds to the date of delivery thereof and all Revenues (as derIDed below) derived under the Loan Agreement "Revenues" means all rents, receipts, installment payments and other income derived by the City or the Trustee under the applicable Loan Agreement, any Credit Facility, or otherwise in respect of the financing of the Project as contemplated by the applicable Loan Agreement, and any income or revenue derived from the investment of any money in any fund or account established pursuant to the Indenture, with certain exceptions specified in the Indenture. Except as otherwise provided in the Indenture, moneys on deposit in the Bond Fund will be used solely for the payment of the principal of and premium, if any, and interest on the Bonds of the applicable Series as the same shaH become due and payable at maturity, upon redemption or otherwise. So long as no Event of Default (or any event which would be an Event of Default under the Indenture with the passage of time or the giving of notice) exists under the Indenture, on the day after each Interest Payment Date, the Trustee shall return to the Company any moneys then on deposit in the Bond Fund or shall deposit such funds in the Rebate Fund if so instructed by the Company. Rebate Fund The Trustee will establish and maintain the Rebate Fund under the Indenture. Except as otherwise provided in the Indenture, all amounts on deposit in the Rebate Fund will be held by the Trustee in trust for payment to the United States Government pursuant to instructions from the Company in accordance with the Tax Certificate and Agreement between the City and the Company. Amounts on deposit in the Rebate Fund will not be available to pay principal of and interest and premium, if any, on the Bonds of the applicable Series and will not be subject to the pledge and lien created by the Indenture. Investment of Moneys As provided in the applicable Loan Agreement and the Indenture, any moneys held in any fund or account established pursuant to the Indenture, including the Bond Fund, shall be invested by the Trustee, upon written direction of the Company, if and to the extent pennitted by law, in (i) any securities or other evidences of indebtedness or demand deposits which are lawful investments for similar trust funds in the State of California, (ii) money market mutual funds which are in compliance with rules of the Securities Exchange Commission and the Investment Company Act of 1940, or (iii) "prime" commercial paper rated at least A-I by Standard & Poor's or P-I by Moody's Investors Service (collectively referred to herein as "Investment Securities"). The Trustee shall be entitled to rely conclusively upon the written direction of the Company directing investment in any particular investment as to the fact that such investment is pennitted by law and constitutes an Investment Security, and the Trustee shall not be required to make further investigation with respect thereto. 34 ~-IO LAI 539071v7 Events of Default The Indenture defines the occurrence of any of the following events to be an "Event of Default" with respect to the Bonds of the applicable Series: (a) failure to make due and punctual payment of any installment of interest on any Bond on the date such installment shall have been due; (b) failure to make due and punctual payment of the principal of and premium, if any, on any Bond of the applicable Series at the stated maturity thereof, upon proceedings for redemption thereof, or upon the maturity thereof by declaration, or failure by the Company to make any payment necessary to purchase Bonds tendered for purchase in accordance with the Indenture; or (c) default by the City in the perfonnance or observance of any other of the covenants, agreements or conditions on its part contained in the Indenture or in any Bond of the applicable Series and the continuance of such default for a period of 60 days after written notice thereof shall have been given to the City and the Company by the Trustee, or to the City, the Company and the Trustee by the holders of not less than 25% in aggregate principal amount of the Bonds of the applicable Series at the time outstanding; provided that if the City or the Company diligently pursues the correction of any such failure which can be corrected, but cannot be corrected within 60 days, such failure will not constitute an Event of Default. Acceleration Upon the occurrence and continuation of an Event of Default, the Trustee may, and upon the written request of the holders of at least 25% in aggregate principal amount of the Bonds of the applicable Series then outstanding, shall, by notice in writing delivered to the City and the Company, declare the principal of all Bonds then outstanding and the interest accrued thereon immediately due and payable, and such principal together with the interest accrued thereon shall thereupon become and be immediately due and payable. The Indenture provides, however, that the Trustee is not required to take any action upon the occurrence and continuation of an Event of Default under (c) above until the Trustee has actual notice or knowledge of such Event of Default After such declaration of acceleration, the Trustee shall immediately take such actions as are necessary to realize moneys under any Credit Facility and shall declare all indebtedness payable under the Loan Agreement to be immediately due and payable in accordance with the tenns thereof Such provisions for acceleration are, however, subject to the condition that if, after a declaration that the principal of all Bonds of the applicable Series is due and payable, and before any judgment or decree for the payment of moneys due shall have been obtained or entered, there shall have been deposited with the Trustee a sum which, together with any other amounts then held in the Bond Fund, is sufficient to pay all of the principal of the Bonds of the applicable Series matured prior to such declaration and all matured installments of interest (if any) on the Bonds of the applicable Series, and the reasonable fees and expenses (including, but not limited to, attorney fees and expenses) of the Trustee, and all other defaults known to the Trustee (other than in the payment of principal of and interest on the Bonds of the applicable Series due and payable solely by reason of such declaration) under the Indenture are cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall have been made therefor, then the holders of at least a majority in aggregate principal amount of the Bonds of the applicable Series then outstanding by written notice to the City and the Trustee may, on behalf of the holders of all the Bonds of the applicable Series, rescind and annul such declaration and its consequences and waive such default, provided that 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. 35 ~ - /05 LA! 539071v7 Other Remedies In addition, upon the occurrence and continuation of an Event of Default, the Trustee may, and upon the written request of the holders of a majority in aggregate principal amount of the Bonds of the applicable Series then outstanding and receipt of indemnity to its satisfaction shall, pursue any available remedy at law or in equity by suit, action or special proceeding to enforce its rights or the rights of the holders of the Bonds of the applicable Series under the Law or the Indenture. Limitations on Bondholders Right to Sue No holder of any Bond of the applicable Series shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of any remedy unless such holder has given written notice to the Trustee of the occurrence of an Event of Default under the Indenture, the holders of at least a majority in aggregate principal amount of Bonds of the applicable Series then outstanding shall have made written request to the Trustee to so act and shall have tendered to the Trustee reasonable indemnity against costs, expenses and liabilities and the Trustee shall have failed to so act within 30 days after receipt of such written request and tender of indemnity. Nothing contained in the Indenture shall, however, (without the consent of the holder of such Bond) affect or impair the right of the holder of any Bond of the applicable Series to enforce the payment of the principal of and premium, if any, and interest on such Bond out of Revenues on and after the respective due dates expressed in such Bond. Amendments The City and the Trustee may, without the consent of or notice to any ofthe holders of the Bonds of the applicable Series, enter into supplemental indentures and the Trustee may, without the consent of any holders of the Bonds of the applicable Series, consent to an amendment to the applicable Loan Agreement or to any other document, instrument or agreement relating to the Project or the security for the Bonds of the applicable Series, in each case for anyone or more of the following purposes: (a) to add to the covenants and agreements, or surrender rights or powers, of the City contained in the Indenture or of the Company contained in the applicable Loan Agreement or such other document or to assign or pledge additional security for the Bonds of the applicable Series, provided that no such change shall materially adversely affect the interests of the holders of the Bonds of the applicable Series, (b) to cure any ambiguity, inconsistency, defect or omission in the Indenture or the applicable Loan Agreement or such other document or in regard to matters or questions arising thereunder as the City may deem necessary or desirable and not inconsistent with the Indenture and which shall not materially adversely affect the interests of the holders of the Bonds of the applicable Series, (c) to permit the qualification of the Indenture under the Trust Indenture Act of 1939 or any other similar federal statute and, if they so determine, to add to the Indenture or any indenture supplemental thereto any other terms, conditions and provisions as may be permitted by such Trust Indenture Act of 1939 or similar federal statute and which shall not adversely affect the interests of the holders of the Bonds of the applicable Series, (d) to provide for any additional procedures, covenants or agreements necessary to maintain the Tax-Exempt status of interest on the applicable Series of Bonds, (e) to provide for, modifY or eliminate a book-entry registration system for the Bonds of the applicable Series, (f) to provide for the procedures required to permit any holder of a Bond of the applicable Series to separate the right to receive interest on the Bonds of the applicable Series from the right to receive principal thereof and to sell or dispose of such rights, as contemplated by Section 1286 of the Code, (g) to provide for the appointment of a co-trustee or the succession of a new Trustee, Registrar or Paying Agent, (h) to change the description of the Project contained in the applicable Loan Agreement in accordance with the provisions thereof, (i) to substitute or provide for a Credit Facility, (j) in connection with any other change which, in the judgment of the Trustee based upon an opinion of nationally recognized bond counsel, will not adversely affect the security for the Bonds of the applicable Series or the exclusion from gross income of interest thereon for 36 ;;J. IOfp LA! 539071v7 federal income tax purposes or otherwise materially adversely affect the holders of the Bonds of the applicable Series or (k) to amend the Indenture or applicable Loan Agreement or other document in any other respect ifthe effective date of such amendment is a date on which all Bonds of the applicable Series affected thereby are subject to mandatory tender for purchase pursuant to the Indenture, or if notice by mail for the proposed supplemental indenture or amendment is given to the holders of the affected Bonds of the applicable Series at least 30 days before the effective date thereof and, on or before such effective date, such holders have the right to demand purchase of their Bonds of the applicable Series pursuant to the Indenture as described under "THE BONDS - Holder's Option to Tender for Purchase." Any other modification or amendment of the Indenture or the applicable Loan Agreement may be made only with the consent of the holders of not less than 60% in aggregate principal amount of the Bonds of the applicable Series which will be outstanding at the time such an amendment or modification takes effect No such modification or amendment shall be made which will have the effect of extending the time for payment or reducing any amount due and payable by the Company pursuant to the applicable Loan Agreement without the consent of all the holders of the Bonds of the applicable Series, and no such supplemental indenture shall (I) extend the fixed maturity of any Bond of the applicable Series or reduce the rate of interest thereon or extend the time of payment of interest, or reduce the amount of the principal thereof, or reduce any premium payable on the redemption thereof, without the consent of the holder of each Bond of the applicable Series so affected, or (2) reduce the aforesaid percentage of holders of Bonds of the applicable Series whose consent is required for the execution of such supplemental indentures, or penn it the creation of any lien on the Revenues prior to or on a parity with the lien of the Indenture, except as pennitted by the Indenture, or penn it the creation of any preference of any holder of a Bond of the applicable Series over any other holder of a Bond of the applicable Series or deprive the holders of the Bonds of the applicable Series of the lien created by the Indenture upon the Revenues or the pledge of any Credit Facility, without the consent of the holders of all the Bonds of the applicable Series then outstanding. The Trustee shall not execute any indenture supplemental to or amendatory of the Indenture or consent to any amendment to the applicable Loan Agreement or any other document relating to the Project or the security for the Bonds of the applicable Series which affects the rights or obligations of the Company unless the Trustee shall have received the prior written consent of the Company. Defeasance If at any time the entire indebtedness on all outstanding Bonds of the applicable Series shall have been paid and discharged (or shall be deemed to have been paid) and if all other sums payable under the Indenture by the City shall be paid and discharged, and upon the occurrence of certain other conditions, the Indenture shall cease, tenninate and become null and void, and the Trustee shall acknowledge its satisfaction and discharge. Any Bond of the applicable Series or Authorized Denominations thereof shall be deemed to be paid within the meaning of the Indenture when (i) payment of the principal of and premium, if any, on such Bond of the applicable Series or Authorized Denominations thereof, plus interest thereon to the due date thereof (whether such due date is by reason of maturity or upon redemption as provided in the Indenture) either (a) shall have been made or caused to be made in accordance with the terms thereof, or (b) shall have been provided for by irrevocably depositing with the Trustee in trust and irrevocably setting aside exclusively for such payment (1) moneys sufficient to make such payment and/or (2) nonprepayable, noncallable Government Obligations (as defined in the Indenture to include direct obligations of the United States of America, or obligations the full and timely payment of which is guaranteed by the United States of America, or securities evidencing ownership interests on such obligations or in specified portions thereof, or repurchase agreements continuously secured and 37 ;;;-/01 LA! 539071v7 collateralized by any of the foregoing) maturing as to principal and interest in such amount and at such time as will insure, without reinvestment, the availability of sufficient moneys to make such payment (as con finned by the report of an escrow verification agent delivered to the Trustee), and (ii) all necessary and proper fees, compensation and expenses of the Trustee pertaining to any such deposit shall have been paid or the payment thereof provided for to the satisfaction of the Trustee; provided that no Bond of the applicable Series shall be deemed to be paid within the meaning of the Indenture unless arrangements satisfactory to the Trustee shall have been made to assure that Bonds of the applicable Series tendered for purchase in accordance with the Indenture can be paid and redeemed from such moneys and/or Government Obligations. Concerning the Trustee The City, in the absence of an Event of Default, with the advice and consent of the Company (which shall not be unreasonably withheld), or the holders of a majority in aggregate principal amount of the Bonds at the time outstanding may at any time remove the Trustee and appoint a successor Trustee. Under the Indenture, the Trustee must be a financial institution organized and doing business under the laws of the United States of America or a state thereof, authorized under such laws to exercise corporate trust powers, have a combined capital and surplus of at least $50,000,000 and be subject to supervision or examination by federal or state authorities. The Trustee may at any time resign by giving written notice to the City and the Company and by giving to the holders of the Bonds of the applicable Series notice either by publication of such resignation, which notice shall be published at least once in a qualified newspaper, or by mailing notice by first class mail to such holders of the Bonds of the applicable Series. UNDERWRITING Pursuant to and subject to the conditions set forth in separate Bond Purchase Agreements, the Underwriters of the Bonds, have agreed to purchase each Series of the Bonds at an aggregate price of 100% of the principal amount thereof Each Underwriter is committed to purchase all of the applicable Series of Bonds if any are purchased. The Company has agreed to pay the Underwriters, an aggregate underwriting fee in the amount of $ The offering price of the Bonds may be changed from the price set forth on the cover page hereof from time to time by the applicable Underwriter. Each Underwriter may offer to sell the Bonds to certain dealers (including dealers depositing Bonds into investment trusts) and others at prices lower than the public offering price stated on the cover page hereof. The Company has agreed to indemnify the Underwriters against certain civil liabilities, including liabilities under the federal securities laws. The Underwriters also provide various investment banking services to the Company from time to time. RATINGS [Standard & Poor's Rating Services ("S&P"), Moody's Investors Service, Inc. ("Moody's"), and Fitch Ratings ("Fitch")], are expected to assign long tenD ratings on the Insured Bonds of "AAA," "Aaa" and "AM," respectively, with the understanding that upon issuance of the Insured Bonds the Policy will be issued by the Insurer. 38 dWW' 08 LA] 539071v7 [S&P, Moody's, and Fitch] are expected to assign short tenn ratings on the Series - Bonds of " ," and " ," respectively, with the understanding that upon issuance of the V ariable Rate Bonds the Standby Bond Purchase Agreement will be delivered by the Liquidity Provider. [S&P, Moody's, and Fitch] are expected to assign ratings on the Series - Bonds of" --.! -, " "_/ -," and "--.! -," respectfully, with the understanding that upon issuance of the Series - Bonds the Letter of Credit will be issued by the Letter of Credit Bank. [S&P, Moody's, and Fitch] have assigned underlying ratings on the Bonds as follows: " " -' "-," and "-," respectively. Such ratings reflect only the views of such organizations and any desired explanation of the significance of such ratings should be obtained from the rating agency furnishing the same, at the following addresses: Fitch Ratings, One State Street Plaza, New York, New York 10004; Moody's Investors Service, Inc., 99 Church Street, New York, New York 10007; and Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., 55 Water Street, New York, New York 10041. Generally, a rating agency bases its rating on the infonnation and materials furnished to it and on investigations, studies and assumptions of its own. There is no assurance such ratings will continue for any given period of time or that such ratings will not be revised downward or withdrawn entirely by the rating agencies, if in the judgment of such rating agencies, circumstances so warrant. Any such downward revision or withdrawal of any of such ratings may have an adverse effect on the market price of such Bonds. [BROKER-DEALERS AND AUCTION AGENT The initial Broker-Dealer with respect to each Series of the Series - Bonds is set forth on the inside front cover page of this Official Statement. will act as initial Auction Agent with respect to the Series - Bonds.] CONTINUING DISCLOSURE The Company has covenanted for the benefit of the Bondholders and beneficial owners of the Series - Bonds and the Series - Bonds to provide (i) certain financial infonnation and certain operating and other infonnation related to the Company by not later than of each year, commencing ,20- (the "Annual Reports") and (ii) notices of the occurrence of certain enumerated events, if deemed by the Company to be material. The Annual Reports will be filed by the Company or its designee for such purpose with each nationally recognized municipal securities infonnation repository. The notices of material events will be filed by the Company or its designee for such purpose with the Municipal Securities Rulemaking Board. The specific nature of the infonnation to be contained in the Annual Reports and the notices of material events is set forth in "APPENDIX D - FORM OF CONTINUING DISCLOSURE CERTIFICATE." These covenants have been made in order to assist the Underwriter in complying with S.E.c. Rule 15c2-12 (the "Rule"). The Company have never failed to comply in all material respects with any previous undertakings with regard to the Rule. The Company is currently required to make certain periodic filings with the SEC. See "APPENDIX B - SAN DIEGO GAS & ELECTRIC COMPANY - Available Infonnation." [VERIFICATION AND MATHEMATICAL COMPUTATIONS The accuracy of (a) the mathematical computations of the adequacy of the maturing principal of and interest earned on the [DEFEASANCE SECURITIES] to provide for the payment on redemption of 39 ;;;. I 0'1 LAI 53907lv7 the Prior Bonds on their respective redemption dates, and (b) the mathematical computations of the actuarial yield on such [DEFEASANCE SECURITIES] and on the defeased Prior Bonds, which computations support the conclusion by Bond Counsel that the Bonds are not "arbitrage bonds" under Section 148 of the Code, will be verified by , independent accountants.] TAX MATTERS In the opinion of Orrick, Herrington & Sutcliffe LLP, San Francisco, California, Bond Counsel, based upon an analysis of existing laws, regulations, rulings and court decisions, and assuming, among other matters, the accuracy of certain representations and compliance with certain covenants, interest on the Bonds is excluded ITom gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code") [or Title XIII of the Tax Reform Act of 1986 and Section 103 of the Internal Revenue Code of 1954, as amended (the "1954 code")], except that no opinion is expressed as to the status of interest on any Bond for any period that such Bond is held by a "substantial user" of the facilities financed or refinanced with proceeds of the Bonds or by a "related person" within the meaning of Section 147(a) of the Code [or Section I 03 (b)(l 3) of the 1954 Code]. [Bond Counsel observes, however, that interest on the Bonds is a specific preference item for purposes of the federal individual and corporate alternative minimum taxes.] [In the further opinion of Bond Counsel, interest on the Bonds is not a specific preference item for purposes of the federal individual or corporate alternative minimum taxes, although Bond Counsel observes that such interest is included in adjusted current earnings when calculating corporate alternative minimum taxable income.] Bond Counsel is also of the opinion that interest on the Bonds is exempt from State of California personal income taxes. A complete copy of the proposed opinion of Bond Counsel is set forth as APPENDIX C hereto. [To the extent the issue price of any maturity of the Bonds is less than the amount to be paid at maturity of such Bonds (excluding amounts stated to be interest and payable at least annually over the term of such Bonds), the difference constitutes "original issue discount," the accrual of which, to the extent properly allocable to each Beneficial Owner thereof, is treated as interest on the Bonds which is excluded from gross income for federal income tax purposes and State of California personal income taxes. For this purpose, the issue price of a particular maturity of the Bonds is the first price at which a substantial amount of such maturity ofthe Bonds is sold to the public (excluding bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers). The original issue discount with respect to any maturity of the Bonds accrues daily over the term to maturity of such Bonds on the basis of a constant interest rate compounded semiannually (with straight- line interpolations between compounding dates). The accruing original issue discount is added to the adjusted basis of such Bonds to determine taxable gain or loss upon disposition (including sale, redemption, or payment on maturity) of such Bonds. Beneficial Owners of the Bonds should consult their own tax advisors with respect to the tax consequences of ownership of Bonds with original issue discount, including the treatment of Beneficial Owners who do not purchase such Bonds in the original offering to the public at the first price at which a substantial amount of such Bonds is sold to the public.] [Bonds purchased, whether at original issuance or otherwise, for an amount higher than their principal amount payable at maturity (or, in some cases, at their earlier call date) ("Premium Bonds") will be treated as having amortizable bond premium. No deduction is allowable for the amortizable bond premium in the case of bonds, like the Premium Bonds, the interest on which is excluded from gross income for federal income tax purposes. However, the amount of tax-exempt interest received, and a Beneficial Owner's basis in a Premium Bond, will be reduced by the amount of amortizable bond premium properly allocable to such Beneficial Owner. Beneficial Owners of Premium Bonds should consult their own tax advisors with respect to the proper treatment of amortizable bond premium in their particular circumstances.] 40 ;;) / 10 LAI 539071v7 The Code [Title XIII of the Tax Refonn Act of 1986 and Section 103 of the 1954 Code] imposes various restrictions, conditions and requirements relating to the exclusion ITom gross income for federal income tax purposes of interest on obligations such as the Bonds. The City and the Company have made certain representations and have covenanted to comply with certain restrictions designed to assure that interest on the Bonds will not be included in federal gross income. Inaccuracy of these representations or failure to comply with these covenants may result in interest on the Bonds being included in gross income for federal income tax purposes, possibly ITom the date of issuance of the Bonds. The opinion of Bond Counsel assumes the accuracy of these representations and compliance with these covenants. Bond Counsel has not undertaken to detennine (or to infonn any person) whether any actions taken (or not taken) or events occurring (or not occurring) after the date of issuance of the Bonds may adversely affect the value of, or the tax status of interest on, the Bonds. The interest rate detennination method and certain other requirements, agreements and procedures contained or referred to in the Indenture, the Loan Agreement, the Tax Certificate and other relevant documents may be changed and certain actions (including, without limitation, defeasance of the Bonds) may be taken under the circumstances and subject to the tenns and conditions set forth in such documents. Bond Counsel expresses no opinion as to any Bond or the interest thereon if any such change occurs or action is taken upon the advice or approval of counsel other than Orrick, Herrington & Sutcliffe LLP. Although Bond Counsel is of the opinion that interest on the Bonds is excluded ITom gross income for federal income tax purposes and is exempt ITom State of California personal income taxes, the ownership or disposition of, or the accrual or receipt of interest on, the Bonds may otherwise affect the federal or state tax liability of the holder of a Bond. The nature and extent of these other tax consequences will depend upon the particular tax status of the holder of the Bond or its other items of income or deduction. Bond Counsel expresses no opinion regarding any such other tax consequences. Future legislation, if enacted into law, or clarification of the Code [1954 Code or Title XIII of the Tax Refonn Act of 1986] may cause interest on the Bonds to be subject, directly or indirectly, to federal income taxation, or otherwise prevent holders of the Bonds from realizing the full current benefit of the tax status of such interest. The introduction or enactment of any such future legislation or clarification of the Code [1954 Code or Title XIII of the Tax Refonn Act of 1986] may also affect the market price for, or marketability of, the Bonds. Prospective purchasers of the Bonds should consult their own tax advisers regarding any pending or proposed federal tax legislation, as to which Bond Counsel expresses no optnIon. The opinion of Bond Counsel is based on current legal authority, covers certain matters not directly addressed by such authorities, and represents Bond Counsel's judgment as to the proper treatment of the Bonds for federal income tax purposes. It is not binding on the Internal Revenue Service ("IRS") or the courts. Furthennore, Bond Counsel cannot give and has not given any opinion or assurance about the future activities of the City or the Company, or about the effect of future changes in the Code [1954 Code or Title XIII of the Tax Refonn Act of 1986], the applicable regulations, the interpretation thereof or the enforcement thereof by the IRS. The City and the Company have covenanted, however, to comply with [the/certain] requirements of the Code [1954 Code or Title XIII of the Tax Refonn Act of 1986]. Bond Counsel's engagement with respect to the Bonds ends with the issuance of the Bonds, and, unless separately engaged, Bond Counsel is not obligated to defend the City, the Company or holders of the Bonds regarding the Tax-Exempt Status of interest on the Bonds in the event of an audit or examination by the IRS. Under current procedures, parties other than the City, the Company and their appointed counsel, including holders of the Bonds, would have little, if any, right to participate in the audit examination process. Moreover, because achieving judicial review in connection with an audit 4] e:;~111 LA! 539071v7 examination of tax-exempt bonds is difficult, obtaining an independent review of IRS positions with which the City or the Company legitimately disagrees, may not be practicable. Any action of the IRS, including but not limited to selection of the Bonds for audit, or the course or result of such audit, or an audit of bonds presenting similar tax issues may affect the market price for, or the marketability of, the Bonds, and may cause the City, the Company or holders ofthe Bonds to incur significant expense. [Proposed Re!!ulations: Chan!!e in Form of Bond Counsel Opinion The U.S. Department of the Treasury has proposed regulations, contained in Circular 230, governing the practice of attorneys and other tax advisors before the Internal Revenue Service. These proposed regulations classify all opinions regarding federal tax treatment of interest on state or local government bonds as tax shelter opinions and, consequently, subject to certain mandatory requirements applicable to tax shelter opinions. The proposed regulations provide that the final regulations will apply to opinions delivered on or after the date the final regulations are published in the Federal Register, which could occur in time to apply to the Bonds. If the final regulations are adopted in their present fonn with an effective date that is applicable to the Bonds, Bond Counsel expects to deliver an opinion that contains the same overall conclusion regarding the exclusion of interest on the Bonds from federal gross income as described above but which differs from the fonn set forth in Appendix C in order to comply with the requirements of the new regulations. Among other largely technical changes Bond Counsel expects to add to the opinion a paragraph substantially similar to the following: The opinion set forth herein with respect to federal income tax may riot be sufficient for an owner of the Bonds to use for the purpose of avoiding penalties relating to a substantial understatement of income tax under section 6662(d) of the Internal Revenue Code of 1986. Owners of the Bonds should seek advice based on their individual circumstances with respect to any material federal tax issue relating to the Bonds from their own tax advisors. The federal tax opinion represents Bond Counsel's best judgment, based on the matters referred to herein, that there is no federal tax issue for which the Internal Revenue Service has a reasonable basis for a successful challenge and the resolution of which could have a significant adverse impact on the opinion regarding federal tax treatment of interest on the Bonds. Bond Counsel expects to be paid for this opinion and related services by from proceeds of the Bonds. There can be no assurance that final regulations will be promulgated with provisions that are similar to those included in the proposed regulations. Bond Counsel expects that its 'opinion will be delivered to confonn with the requirements of the final regulations if applicable to the Bonds. There can be no assurance that the market value of the Bonds will not be adversely affected if the opinion of Bond Counsel delivered at the time of issuance of the Bonds is substantially different from the fonn of opinion attached as Appendix C hereto. ] LEGAL MATTERS Legal matters incident to the authorization, issuance, sale and delivery of the Bonds and with regard to the tax status thereof will be subject to the approval of Orrick, Herrington & Sutcliffe LLP, San Francisco, California, Bond Counsel. Bond Counsel undertakes no responsibility for the accuracy, completeness or fairness of this Official Statement The Underwriter's obligation to purchase the Bonds is subject to the delivery of such approving opinions. Certain other legal matters will be passed upon for 42 d)-. LA! 539071v7 the City by its special counsel, [Jones Hall, A Professional Law Corporation, San Francisco, California] and for the Company by , Assistant General Counsel of the Company, and for the Underwriter by Sidley Austin Brown & Wood LLP, San Francisco, California. ABSENCE OF MATERIAL LITIGATION The City There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body, commenced and ongoing or, to the knowledge of the City, threatened against the City in any way affecting the existence of the City or the titles of its officers to their respective offices or seeking to restrain or to enjoin the issuance, sale or delivery of the Bonds, the application of the proceeds thereof in accordance with the Indenture, the collection or application of Repayment Installments, or the lien thereon, in any way contesting or affecting the validity or enforceability of the Bonds, the Indentures, or the Loan Agreements, in any way contesting the completeness or accuracy of this Official Statement or the powers of the City with respect to the Bonds, the Indentures or the Loan Agreements, or which could, if adversely decided, have a materially adverse impact on the City's ability to collect the Repayment Installments. The Com pany There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body, commenced and ongoing or, to the knowledge of the Company, threatened against the Company in any way affecting the existence of the Company or the titles of its officers to their respective offices or seeking to restrain or to enjoin the issuance, sale or delivery of the Bonds, the application of the proceeds thereof in accordance with the Indenture, the collection or application of the Repayment Installments, or the lien thereon, in any way contesting or affecting the validity or enforceability of the Bonds, the Indentures, or the Loan Agreements, in any way contesting the completeness or accuracy of this Official Statement or the powers of the Company with respect to the Loan Agreements, or which could, if adversely decided, have a materially adverse impact on the Company's financial position. 43 ~-1'3 LA] 539071v7 MISCELLANEOUS The summaries of and references to all documents, statutes, reports and other instruments referred to herein do not purport to be complete, comprehensive or definitive and each such summary or reference is qualified in its entirety by reference to each such document, statute, report or instrument. Copies of each such document, report or other instrument may be obtained from the of the Company at the Company offices at ; telephone: , or from the corporate trust office of the Trustee in , California. The attached Appendices are integral parts of this Official Statement and should be read in their entirety. This Official Statement has been duly approved, executed and delivered by the City. CITY OF CHULA VISTA By: Maria Kachadoorian Director of Financeffreasurer LA! 539071v7 -liLt APPENDIX A DEFINITIONS AND SUMMARY OF AUCTION PROCEDURES LA! 539071v7 A-I é) -I ,5 APPENDIX B SAN DIEGO GAS & ELECTRIC COMPANY San Diego Gas & Electric Company (the "Company") is an operating public utility engaged principally in the business of generating, purchasing and distributing electric energy to approximately 1.3 million customers in San Diego County and in portions of Orange County, California, and purchasing and distributing natural gas to approximately customers in San Diego County. The Company estimates that the population of the territory served as of January 1, 200- was approximately - million. The Company is an indirect wholly-owned subsidiary of Sempra Energy (the "Parent"). The Company was incorporated in California in 1905, and the Parent was incorporated in California in 1996. The Company's principal offices are in the Electric Building, 101 Ash Street, San Diego, California 92101, and its telephone number is (619) 696-2000. AVAILABLE INFORMATION The Company and the Parent are each subject to the informational requirements of the Securities Exchange Act of 1934 and in accordance therewith filed reports, proxy statements and other infonnation with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information filed by the Company and the Parent can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, DC 20549. Copies of such material can be obtained by writing to the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.c. 20549 at prescribed rates. Reports, proxy material and other infonnation concerning the Company and the Parent can also be inspected at the offices of the New York, American and Pacific Stock Exchanges. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE There is hereby incorporated by reference in this APPENDIX B the Company's and the Parent's Annual Reports on Form lO-K for the year ended December 31,200_, and the Quarterly Reports of the Company on F onn 10-Q for the quarters ended , and and Current Reports of the Company on Fonn 8-K dated , and and Current Reports of the Parent on Fonn 8-K dated . and , filed with the , Commission pursuant to Section 13 of the Securities Exchange Act of 1934 (other than any portions of any such documents that are not deemed "filed" under the Securities Exchange Act of 1934 in accordance with such Act and applicable Commission rules). All documents filed by the Company and the Parent pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this Official Statement and prior to the tennination of the offering made by this Official Statement (other than any portions of any such documents that are not deemed "filed" under the Securities Exchange Act of 1934 in accordance with such Act and applicable Commission rules) shall be deemed to be incorporated herein by reference and to be part of this APPENDIX B from the date of filing of such documents. The foregoing documents are incorporated by reference solely for the infonnation they contain with respect to the Company and are not intended to indicate that the Parent is in any respect obligated to make payments with respect to the Bonds. The Bonds will remain the sole liability of the Company. B-1 f)-II?:' LA! 53907Jv7 The Company hereby undertakes to provide without charge to each person to whom a copy of this Official Statement has been delivered, upon the written or oral request of such person, a copy of any and all of the documents that have been incorporated by reference in this APPENDIX B, except that exhibits to such documents shall not be provided unless they are specifically incorporated into such documents. Requests for such information should be directed to Shareholder Services, San Diego Gas & Electric Company, P.O. Box 1831, San Diego, California 92112, telephone: (619) 696-2000. SAN DIEGO GAS & ELECTRIC COMPANY SELECTED FINANCIAL AND OPERATING INFORMATION Electric Customers ( , 20°-.J (millions) - Total Electric System Capability (Megawatts) Kilowatt-Hour Sales Electricity (12 Months Ended ,20°-.J (millions) Funds Required for Construction Expenditures (I 999-200-.J (millions) $ Energy Sources (12 Months Ended ,20°-.J Purchased Power and lSOIPX - % Nuclear _% Gas Customers ( , 20°-.J (millions) Total Gas Sales (12 Months Ended , 20°-.J (millions of thenns) COMPANY FINANCIAL INFORMATION (Dollars in Millions) Year Ended December 31, - - - - Income Statement Data: Total Operating Revenue """""'" $ $ $ $ $ Operating Income ....................... Dividends on PrefeITed Stock Earnings applicable to Common Shares ,200 (Dollars in Millions) Percent of Actual Capitalization Capitalization Common Equity Retained Earnings Accumulated Other Comprehensive Income (Loss) PrefeITed Stock not Subject to Mandatory Redemption PrefeITed Stock Subject to Mandatory Redemption Long-Term Debt Total Capitalization B-2 ~ ~ 117 LA! 539071v7 APPENDIX C PROPOSED FORM OF OPINION OF BOND COUNSEL C-I ~ - / / '8 LA! 53907]v7 SABW Draft January 13,2004 CITY OF CHULA VISTA $ Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200 Series - - BOND PURCHASE AGREEMENT ,200- City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Director of Finance/Treasurer Ladies and Gentlemen: The undersigned (the "Underwriter"), hereby offers to enter into this Bond Purchase Agreement (this Bond Purchase Agreement, including the Inducement Letter attached as Exhibit A, being herein called the "Bond Purchase Agreement") with the City of Chula Vista (the "Issuer") for the purchase by the Underwriter of $ aggregate principal amount of City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200- Series - (collectively, the "Bonds"), and as more fully described in the Official Statement described below. This offer is made subject to your acceptance prior to receipt by you of written notice from the Underwriter that this offer is withdrawn. Upon acceptance, this Bond Purchase Agreement shall be in full force and effect in accordance with its terms and shall be binding upon the Issuer and the Underwriter. 1. Upon the terms and conditions and upon the basis of the representations, warranties and agreements herein set forth, the Underwriter hereby agrees to purchase from the Issuer, and the Issuer hereby agrees to sell to the Underwriter, all (but not less than all) of the Bonds at an aggregate purchase price of $ . As a condition to the delivery of and payment for the Bonds, San Diego Gas & Electric Company (the "Company") agrees to pay to the Underwriter an underwriting fee in the amount of $ in immediately available funds. The Bonds shall be as described in, shall be issued and secured under and pursuant to, and shall be payable as provided in, the Indenture of Trust, to be dated as of ,200- (the "Indenture"), between the Issuer and , as trustee (the "Trustee"), substantially in the form previously submitted to the Underwriter with only such changes therein as will be agreed upon by the Issuer, the Company and the Underwriter. In connection with issuance of the Bonds, the Issuer and the Company shall enter into a Loan Agreement, to be dated as of , 200- (the "Agreement"), substantially in the form previously submitted to the Underwriter with only such changes therein as will be agreed upon by the Issuer, the Company and the Underwriter. LA! 539065v6 :J~//q r (the "Auction Agent") will act as Auction Agent for the Bonds. The Auction Agent will enter into an Auction Agent Agreement, dated as of , 200- (the "Auction Agent Agreement"), with the Company and the Trustee. The Auction Agent will enter into a Market Agent Agreement, dated as of , 200- (the "Market Agent Agreement"), with , acting as market agent. The Auction Agent will also enter into a Broker- Dealer Agreement, dated as of , 200- (the "Broker-Dealer Agreement"), with , acting as broker-dealer, and the Company.] [The Company will undertake to provide disclosure reports annually and notices of certain events, which undertaking will be made under the Indenture and a Continuing Disclosure Certificate to be executed by the Company on the Closing Date (the "Continuing Disclosure Certificate") in substantially the form attached as Appendix D to the Preliminary Official Statement.] [The Bonds are to be issued concurrently with the Issuer's Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company), 200- Series -' 200- Series _,200- Series -' and 200- Series _.] The Indenture, the Loan Agreement, [the Broker-Dealer Agreement, the Auction Agent Agreement,] the Continuing Disclosure Certificate and this Bond Purchase Agreement are collectively referred to herein as the "Transaction Documents." 2. The Issuer hereby ratifies, confirms and approves of the use and distribution by the Underwriters prior to the date hereof of the preliminary official statement related to the Bonds dated , 2003 (the "Preliminary Official Statement"), which Preliminary Official Statement the Issuer has deemed final as of its date for purposes of Rule 15c2-12 ("Rule 15c2-12") promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided, however, that the foregoing representation as to the finality of such form of official statement does not include a representation as to the finality of the statements and information contained therein concerning statements other than the statements under the captions "THE CITY" and "ABSENCE OF MATERIAL LITIGATION - The City." The Issuer shall deliver or cause to be delivered to the Underwriter, within one day after acceptance hereof, ten copies of the Official Statement dated , 200_, executed on behalf of the Issuer by its City Manager, Assistant City Manager or Director of Finance/Treasurer (such Official Statement, including the Appendices thereto and all documents incorporated by reference therein, being hereinafter called the "Official Statement"). The Issuer hereby approves, confirms and ratifies the use and distribution by the Underwriter of the Official Statement and hereby authorizes the use of the Official Statement and the Transaction Documents in connection with the public offering and sale of the Bonds by the Underwriters. For the period of time following the date hereof (the "Delivery Period") sufficient to enable the Underwriters to deliver to any potential purchaser of the Bonds a copy of the Official Statement required pursuant to Rule 15c2-12, the Issuer will make available to the Underwriter such numbers of copies of the Official Statement as the Underwriter shall reasonably request. 2 c9 - IdO LAl 539065v6 The Underwriter agrees to mail or deliver the Official Statement and any amendments or supplements thereto to at least one "'nationally recognized municipal securities depository" (within the meaning of Rule 15c2-12) promptly upon receipt thereof from the Issuer. Unless otherwise notified in writing by the Underwriter on or prior to the Closing Date (hereinafter deemed), the Issuer can assume that the end of the Delivery Period for the Bonds for all purposes of Rule 15c2-12 is the Closing Date. In the event such notice is given in writing by the Underwriter, the Underwriter will promptly advise the Issuer and the Company of the date they believe the Delivery Period has ended, and until and unless it shall be determined that such belief was eIToneous, such date shall be deemed the end of the Delivery Period for purposes of this Bond Purchase Agreement. 3. Simultaneous delivery of and payment for the Bonds (the "Closing") shall be coordinated through the offices of Orrick, Herrington & Sutcliffe LLP, Bond Counsel, and shall take place at the office of Bond Counsel, at 8:00 a.m. California time, on , 200_, or at such other place, time or date as we mutually agree upon (such time and date of Closing being herein refeITed to as the "Closing Date"). At the Closing, delivery of the Bonds shall be made to The Depository Trust Company, New York, New York ("DTC"), as a single fully registered certificate in the amount of each stated maturity of each Series of the Bonds, registered in the name of Cede & Co., as a nominee of DTC, against payment of the purchase price by a Federal Funds wire to or upon the order of the Trustee. In addition, at the Closing, the Company shall pay the Underwriter's fee as set forth in Section 1 hereof and the origination fee of the Issuer as described in Section 4.2( c) of the Agreement. The Bonds will be made available to the Underwriter for inspection at least twenty-four hours prior to the Closing Date. 4. The Issuer (based solely on opinions of counsel to the extent the following are conclusions of law, with respect to which opinions the City shall incur no liability) represents and warrants to and agrees with the Underwriter that: (a) the representations and warranties of the Issuer contained in Section 2.1 of the Agreement, are, and as of the Closing Date will be, true and COITect in all material respects; (b) both at the time of acceptance hereof by the Issuer and on the Closing Date, the statements and information contained in the Official Statement under the caption "THE CITY" and "ABSENCE OF MATERIAL LITIGATION - The City" are and will be true and COITect and do not and will not contain any untrue statement of a material fact or omit any statement or information which is necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect, it being understood that no such representation or agreement shall apply to any statements or information in or omissions from the Official. .Statement other than the statements and information contained in the Official Statement under the caption "THE CITY" and "ABSENCE OF MATERIAL LITIGA nON - The City"; (c) the Issuer is and will be on the Closing Date a municipal corporation and charter city in the State of California, duly organized and existing under a freeholders' 3 /} ~ /¿J/ LA I 539065v6 charter (the "Charter") pursuant to which the Issuer has the right and power to make and enforce all laws and regulations in accordance with and as more particularly provided in Sections 3, 5 and 7 of Article XI of the Constitution of the State of California and Section 200 of the Charter; the Issuer, acting under and pursuant to the powers reserved to the Issuer under Sections 3, 5 and 7 of Article XI of the Constitution and Section 200 of the Charter, has enacted Chapter 3.48 of the Chula Vista Municipal Code (the "Code"); and pursuant to the Code, the Issuer has adopted a Resolution authorizing the issuance and sale of the Bonds, the deposit of the proceeds of the Bonds with the Trustee in order to refmance the cost of the Project (as deEmed in the Indenture) and thereby finance the redemption and refunding of certain outstanding industrial development revenue bonds issued by The City of San Diego and by the City for the benefit of the Company (the "Redemption and Refunding") pursuant to the Indenture and the Loan Agreement and the pledge and assignment to the Trustee under the Indenture of the payments to be received :trom the Company pursuant to the Loan Agreement as security for the payment of the principal of, premium, if any, and interest on the Bonds; (d) when delivered to and paid for by the Underwriter at the Closing in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed, issued and delivered and will constitute valid and binding special obligations of the Issuer in conformity with, and be entitled to the benefit and security of, the Agreement, the Code and the Indenture; (e) the Issuer has duly authorized the execution and delivery by it of the Transaction Documents; (f) the Issuer has full legal right, power and authority to enter into the Transaction Documents, to issue the Bonds and to carry out and consummate all other transactions contemplated by the Transaction Documents, and the Issuer has complied with the provisions of the Constitution and laws of the State of California and the City of Chula Vista, including the Charter and the Code, and all procedural rules of the Issuer in all matters relating to the validity, execution, delivery and performance of such agreements and the validity, execution, delivery and issuance of the Bonds; (g) on and as of the Closing Date, all authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency, regulatory authority or other instrumentality or court required to be obtained, given or taken on behalf of the Issuer in connection with the execution, delivery and performance by the Issuer of the Transaction Documents and the Bonds have been obtained, given or taken and are in full force and effect, provided that no representation is made with respect to compliance with the securities or "Blue Sky" laws of the various states of the United States; (h) until the end of the Delivery Period, the Issuer will advise the Company and the Underwriter promptly (i) of the institution of any legal or regulatory proceedings affecting the Issuer of which the Issuer has knowledge affecting the use of the Official Statement in connection with the offer and sale of the Bonds and (ii) if the Issuer believes that the information contained in the Official Statement under the caption "THE CITY" is 4 c9 -/;;d LA! 539065v6 not true and correct, contains any untrue or incorrect statement or misleading statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and (i) the Issuer will not adopt any amendment of or supplement to the Official Statement to which the Underwriter or the Company shall reasonably object in writing; and during the Delivery Period, if any event shall occur as a result of which it is necessary, in the opinion of the Underwriter or counsel to the Underwriter, to amend or supplement the Official Statement in order to make the statements therein, in the light of the circumstances when the Official Statement is delivered to a purchaser or a potential purchaser, not misleading, the Issuer and the Company will cooperate, at the request of the Underwriter, in the prompt preparation and delivery to the Underwriter, at the Company's expense, of either amendments or supplements to the Official Statement so that the statements in the Official Statement as so amended or supplemented will not, in the light of the circumstances when the Official Statement is delivered to a purchaser or a potential purchaser, be misleading. 5. [Reserved] 6. The obligations of the Underwriter to purchase and pay for the Bonds on the Closing Date are and shall be subject to the representations, agreements and warranties of the Issuer and the Company herein and in the Inducement Letter of even date herewith substantially in the form attached hereto as Exhibit A (the "Inducement Letter") being true and correct in all material respects at the Closing Date, to the certificates made pursuant to the provisions hereof being true and con-ect in all material respects at the Closing Date, to the performance by the Issuer and the Company of their respective obligations hereunder and in the Inducement Letter, and to the following further conditions: (a) at. the Closing Date, (i) the Transaction Documents, [the Market Agent Agreement,] and the Inducement Letter shall have been duly authorized, executed and delivered and shall be in full force and effect as valid and binding agreements between or among the various parties thereto and shall not have been amended, modified or supplemented except as may have been agreed to in writing by the Underwriter and (ii) the Issuer shall have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of Bond Counsel, shall be necessary in connection with the transactions contemplated hereby; (b) the Underwriter shall have the right to cancel its obligation to purchase the Bonds if between the date hereof and the Closing Date: (i) an actual or tentative decision with respect to legislation shall be reached by a committee of the House of Representatives or the Senate of the Congress of the United States, or legislation shall be favorably reported by such a committee or be passed by the House of Representatives or the Senate, or recommended to the Congress of the United States for passage by the President of the United States, or be enacted by the Congress of the United States, or a decision by a court established under Article III of the Constitution of the United 5 d-/~3 LAI 539065v6 States, or the Tax Court of the United States, shall be rendered, or a ruling, regulation or order of the Treasury Department of the United States or the Internal Revenue Service shall be made or proposed having the purpose or effect of imposing federal income taxation, or any other event shall have occurred which results in the imposition of federal income taxation, upon revenues or other income of the general character to be derived by the Issuer or by any similar body or upon interest received on obligations of the general character of the Bonds, or on the Bonds, which, in the opinion of the Underwriter, materially adversely affects the market price of the Bonds or the practicability of detennining such market price; (ii) any legislation shall be favorably reported by a committee of the Legislature of, or any ordinance, rule or regulation shall be enacted by any governmental body, department or agency in, the State of California, or a decision by any court of competent jurisdiction within the State of California shall be rendered which, in the opinion of the Underwriter, materially adversely affects the market price of the Bonds or the practicability of determining such market price; (iii) a stop order, ruling, regulation or official statement by, or on behalf of, the 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 the underlying obligations, as contemplated hereby or by the Official Statement is in violation or would be in violation of any provision of the federal securities laws, as amended and as then in effect; (iv) legislation shall be enacted by the Congress of the United States of . America, or a decision by a court of the United States of America shall be rendered, to the effect that obligations of the general character of the Bonds, or the Bonds, including all the underlying obligations, are not exempt from registration under, or other requirements of, the Securities Act of 1933, as amended and as then in effect (the "Securities Act"), or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended and as then in effect; (v) any event shall have occurred, or information become known, as a result of which, in the opinion of the Underwriter, the Official Statement as originally circulated shall contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; (vi) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; 6 c9-/df LA! 539065v6 (vii) the New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose as to the Bonds, or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, underwriters; (viii) a general banking moratorium shall have been established by federal, New York or California authorities; (ix) any ratings of the Bonds or the rating of any class of securities of the Company shall have been suspended, downgraded or withdrawn by a national rating service, which, in the opinion of the Underwriter, materially adversely affects the market price of the Bonds; (x) the Company shall have been placed on Credit Watch, Moody's Watch List, or other similar report due to the possibility of such a suspension, downgrading or withdrawal of such rating or been the subject of an adverse credit report by a national ratings service; (xi) any proceeding shall be commenced and ongoing or threatened by the Commission against the Company; (xii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Underwriter, Ímpractical or inadvisable to proceed with the offering or delivery of the Bonds as contemplated by the final Official Statement (exclusive of any amendment or supplement thereto); or (xiii) trading in the Company's outstanding securities shall have been suspended by the Commission or any securities exchange on which they are traded or trading in securities generally on any such exchange shall have been suspended or limited or minimum prices shall have been established on any such exchange. (c) at or prior to the Closing, the Underwriter shall receive the following documents, in each case satisfactory in form and substance to the Underwriter: (i) (A) the approving opinions of Bond Counsel with respect to the Bonds in the form set forth as Appendix C to the Official Statement dated the Closing Date; (B) the supplemental opinion of Bond Counsel set forth as Exhibit B hereto; (C) the opinion of , Assistant General Counsel of the Company, set forth as Exhibit C hereto; (D) an opinion of Jones Hall, A Professional Law Corporation, special counsel to the Issuer, set forth in Exhibit D hereto; (E) the opinion of Sidley Austin Brown & Wood LLP, counsel to the Underwriter, as to such matters as the Underwriter may reasonably request; 7 ~$ LA] 539065v6 (ii) the certificate of the Chainnan of the Board or the President or any Vice President or the Treasurer or Assistant Treasurer of the Company, dated the Closing Date, to the effect that the representations and warranties of the Company in the Inducement Letter are true and correct in all material respects; that the Company has complied with all agreements and satisfied all conditions on its part to be perfonned or satisfied at or prior to the Closing Date; that, subsequent to the date of the most recent financial infonnation included or fmancial statements incorporated by reference in the Official Statement, no material and adverse change has occurred in the financial position or results of operations of the Company other than as disclosed in the Official Statement or the documents incorporated by reference therein; that the Company has not incurred any material liabilities other than in the ordinary course of business or as provided for or contemplated herein or as disclosed in the Official Statement or the documents incorporated by reference therein; and that, to the best of his or her knowledge, no event affecting the Company has occurred since the date of the Official Statement which should be disclosed in the Official Statement for the purpose for which it is to be used or which it is necessary to disclose therein in order to make the statements and infonnation therein or the documents incorporated by reference therein not misleading in any material respect; (iii) duly executed copies of the Transaction Documents, [the Market Agent Agreement] and the Inducement Letter; (iv) copies of resolutions adopted by the Company's Board of Directors certified by the Secretary or an Assistant Secretary of the Company authorizing the execution and delivery of the [Broker-Dealer Agreement, the] Agreement and the Inducement Letter, and authorizing the approval of this Bond Purchase Agreement; (v) an opinion of counsel to the Trustee, dated the Closing Date and addressed to the Issuer and the Underwriter as set forth as Exhibit E; (vi) a copy of the Preliminary Blue Sky Memorandum dated ,200_; (vii) evidence of long-tenn ratings on the Bonds by Moody's Investors Service, Inc., of A2 and by Standard & Poor's Ratings Services of A+; (viii) a letter of Deloitte & Touche LLP, independent certified public accountants, dated the Closing Date and addressed to the Issuer, Bond Counsel and the Underwriter regarding the financial statements of the Company referred to or contained in the Official Statement by Deloitte & Touche LLP, independent certified public accountants, satisfactory in fonn and substance to the Underwriter and their counsel, Sidley Austin Brown & Wood LLP; and 8 -/~(p LA 1 539065v6 (ix) [an opinion, dated as of the Closing Date and addressed to the trustee for the Prior Bonds, of Orrick, Herrington & Sutcliffe LLP, San Francisco, California, Bond Counsel, addressing the defeasance of the Prior Bonds;] (x) [a verification report regarding defeasance of the Prior Bonds;] (xi) such additional certificates, legal opinions, proceedings, instruments and other documents as the Underwriter may reasonably request to evidence perfonnance of or compliance with the provisions of this Bond Purchase Agreement and the Inducement Letter and the transactions contemplated hereby and thereby, all such certificates and other documents to be satisfactory in fonn and substance to the Underwriter and its counsel. 7. The Issuer's obligations hereunder are subject to the perfonnance of the obligations of the Underwriter hereunder and also subject to the following conditions: (a) At Closing no litigation shall be commenced and ongoing, or to the best knowledge of the City Manager, Assistant City Manager or Director of Finance/Treasurer of the Issuer threatened, to restrain or enjoin the issuance or sale of the Bonds or in any way affecting any authority for or the validity ofthe Bonds or the Transaction Documents or the transactions contemplated thereby or hereby or the existence or powers of the Issuer or the right of the Issuer to refinance the cost of the Project and thereby finance the Redemption and Refunding through the loan to the Company of the proceeds from the sale of the Bonds; (b) At the Closing the Issuer shall receive copies of the opinions, certificates and documents described in Section 6(c)(i) (A), (C) and (D), 6(c)(ii), 6(c)(iv) and 6(c)(vi) hereof; and (c) At the Closing the Issuer shall receive such additional OpInIOnS, certificates and other documents as it may reasonably request, in fonn and substance satisfactory to the Issuer and its counsel. 8. If the conditions to the Issuer's or the Underwriter's obligations contained in this Bond Purchase Agreement are not satisfied or if the Underwriter's obligations shall be tenninated for any reason peIinitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall tenninate and the Underwriter and the Issuer shall not have any further obligation hereunder; provided, however, that the Company shall remain responsible for the expenses to be paid by it under Section 10 hereof. 9. The Issuer will furnish the Underwriter such infonnation as may be lawfully required and otherwise use its best efforts to assist the Underwriter in qualifying the Bonds for offer and sale by the Underwriter and by dealers and in detennining the eligibility of the Bonds for investment under the securities law of such jurisdictions as the Underwriter may reasonably designate; provided that the Issuer shall not be required to consent to local service of process in any state and shall not be required to meet any other requirement deemed by the Issuer to be unduly burdensome or to impose any undue liability or potential liability upon the Issuer. 9 ;)- LA! 539065v6 10. All expenses and costs of the Issuer incident to the performance of its obligations in connection with the authorization, issuance and sale of the Bonds to the Underwriter including any costs of mailing or delivery and of printing of the Bonds, the Transaction Documents, [the Market Agent Agreement] and the Official Statement, including any amendments thereof or supplements thereto, and all ancillary papers prepared in connection with the transactions contemplated by this Bond Purchase Agreement, in reasonable quantities, including any photocopying thereof, fees and expenses of Bond Counsel, the Issuer's fees, costs and expenses of the Trustee in connection with the issuance of the Bonds, fees charged by investment rating agencies for the rating of the Bonds, fees and expenses of engineering consultants, fees and expenses of financial and legal consultants, fees and expenses of any depository, and fees and expenses of counsel for the Underwriter including, but not limited to, fees and expenses for Blue Sky and legal investment matters shall be paid by the Company as agreed upon by the Company in the Inducement Letter. Except as indicated above, all other out-of-pocket expenses of the Underwriter shall be paid by the Underwriter. 11. Any notice or other communication to be given to the Issuer under this Bond Purchase Agreement shall be given by delivering the same in writing at its address set forth above, and any such notice or other communication to be given to the Underwriter may be given by delivering the same to the Underwriter, , Attention: All notices or communications hereunder by any party shall be given and served upon each other party, and shall be served upon the Company. Any notice or communication to be given to the Company under this Bond Purchase Agreement may be given by delivering the same to the Company at [101 Ash Street, San Diego, California 92101, Attention: Manager of Financial Services]. 12. This Bond Purchase Agreement is made solely for the benefit of the Issuer, the Company and the Underwriter (including the successors or assigns of the business thereof) and no other person shall acquire or have any right hereunder or by virtue hereof. All representations, warranties and agreements of the Issuer in this Bond Purchase Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriter and shall survive the delivery of and payment for the Bonds. 13. This Bond Purchase Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Any action arising out of this Bond Purchase Agreement shall be filed and maintained in San Diego County Superior Court, San Diego, California. The parties agree that the terms and conditions of this Bond Purchase Agreement supersede those of all previous agreements between the parties relating to the Bonds and the transactions contemplated herein, and that this Bond Purchase Agreement, together with the documents referred to in this Bond Purchase Agreement, contains the entire agreement between the parties hereto with respect to such matters. In the event of a dispute among the parties under this Bond Purchase Agreement, the losing party or parties in such dispute shall pay all costs and expenses incuITed by the prevailing party or parties in connection therewith, including but not limited to attorneys' fees. 10 ~~/;)g LA! 539065v6 14. It is understood that the representations, warranties and covenants of the Issuer contained in this Bond Purchase Agreement shall not create any general obligation or liability of the Issuer, and that any obligation or liability of the Issuer hereunder or under the Agreement or the Indenture is payable solely out of the revenues and other income, charges and moneys derived by the Issuer ITom, or in connection with, the Agreement or the sale of the Bonds, nor shall any officer, member or employee of the Issuer be personally liable therefor. I I ¿;) --I d9 LA! 539065v6 15. This Bond Purchase Agreement may be executed in several counterparts, each of which shall be regarded as an original' and all of which shall constitute but one and the same agreement. [UND ER WRITER] By: Authorized Officer Accepted as of the date hereof: CITY OF CHULA VISTA By: Director of Finance/Treasurer Attest: City Clerk Approved as to Form and Legality ANN MOORE City Attorney By: [Title] 12 ó) -/30 LA! 539065v6 Approved and agreed to: SAN DIEGO GAS & ELECTRIC COMPANY By: Senior Vice President, Chief Financial Officer and Treasurer I I 13 -I I LA! 539065v6 EXHIBIT A INDUCEMENT LETTER , 200- [UND ER WRITER] Attention: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Ladies and Gentlemen: In order to induce the City of Chula Vista (the "Issuer") to issue the Bonds hereinafter defined and to induce the Underwriter named in the Bond Purchase Agreement (as hereinafter defined) (the "Underwriter") to enter into a Bond Purchase Agreement to be dated the date hereof (the "Bond Purchase Agreement") providing for the purchase by the Underwriter and the sale by the Issuer of aggregate principal amount of the Issuer's Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company), 200- Series - (the "Bonds"), the proceeds of which[, along with the proceeds of the Issuer's Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200- Series -' 200- Series -' 200- Series - and 200- Series --.J are to be used pursuant to a Loan Agreement, to be dated as of , 200- (the "Agreement"), between San Diego Gàs & Electric Company, a California corporation (the "Company"), and the Issuer, to refinance the cost of the Project (as defined in the Agreement) by financing the redemption and refunding of certain outstanding industrial development revenue bonds issued by [The City of San Diego and the City] for the benefit of the Company (the "Redemption and Refunding"), and with full realization and appreciation that the investment value of the Bonds and the ability of the Underwriter to resell the Bonds are dependent upon the credit standing of the Company, and in consideration of the foregoing and the execution and delivery of the Bond Purchase Agreement, the Company represents, warrants and covenants to and with the Issuer and the Underwriter as follows: (a) The representations and warranties of the Company contained in Section 2.2 of the Agreement are, and as of the Closing Date, as defined in the Bond Purchase Agreement, will be, true and correct in all material respects. (b) The financial information and financial statements of the Company referred to, incorporated by reference or contained in the Official Statement, dated ,200- (such Official Statement including the Appendices thereto and all documents incorporated by reference A-I rP- -13~ LA! 539065v6 therein, being hereinafter called the "Official Statement") present fairly the financial position of the Company as of the dates indicated and the results of its operations for the periods specified, and the fmancial statements have been prepared in confonnity with generally accepted accounting principles consistently applied in all material respects with respect to the periods involved except as stated in the footnotes thereto. Since the respective dates of such fmancial statements, no material and adverse change has occurred in the fmancial position or results of operations of the Company other than as disclosed in the Official Statement, and the Company has not incurred any material liabilities other than in the ordinary course of business or as provided for or disclosed in the Official Statement. (c) The descriptions and the infonnation referred to or contained in the Official Statement (other than under the captions "THE CITY," "ABSENCE OF MATERIAL LITIGATION - The City" and "TAX MATTERS") are, and as of the Closing Date will be, true and correct and do not contain and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in confonnity with infonnation furnished to the Company by or on behalf of the Underwriter in writing expressly for use under "UNDERWRITING" therein. (d) The Official Statement incorporates or will incorporate, by reference all of the reports (the "Incorporated Documents") required to be filed from to the date hereof by the Company with the Securities and Exchange Commission (the "Commission") pursuant to Section 13 or 15( d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which documents have been, and will be, carefully prepared by the Company in confonnity with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and copies of such documents have been and until the end of the Delivery Period (as defined in the Bond Purchase Agreement), will be delivered to the Underwriter. All references in this Inducement Letter to infonnation or statements contained in, set forth in or included in the Official Statement shall be deemed to relate equally to the material actually set forth therein as well as to the material incorporated therein from the Incorporated Documents. (e) The Incorporated Documents, when they were filed with the Commission, confonned in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading; and any further Incorporated Documents so filed, when they are filed with the Commission, will confonn in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. (f) The Company has not taken or omitted to take and will not take or omit to take any action which will in any way cause or result in the proceeds from the sale of the Bonds to be A-2 ~ LA 1 539065v6 applied in a manner other than as provided in the Agreement and the Indenture of Trust, to be dated as of , 200- (the "Indenture") between the Issuer and , as trustee (the "Trustee"), relating to the Bonds. (g) Except as set forth in the Official Statement, to the knowledge of the Company after due inquiry, there is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any public board or body commenced and ongoing or, threatened against or affecting the Company, wherein an unfavorable decision, ruling or order would have a material adverse effect on the validity or enforceability of the Bonds, the Transaction Documents [and the Market Agent Agreement] (all as defined in the Bond Purchase Agreement) or this Inducement Letter. (h) On and as of the date hereof, all authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency, regulatory authority or other instrumentality or court required to be obtained, given or taken on behalf of the Company in connection with the execution, delivery and perfonnance by the Company of this Inducement Letter, [the Broker-Dealer Agreement] and the Agreement, including, without limitation, orders of the Public Utilities Commission of the State of California, have been obtained, given or taken and are in full force and effect, provided that no representation is made with respect to compliance with the securities or "Blue Sky" laws of the various states of the United States. (i) This Inducement Letter is, and [the Broker-Dealer Agreement,] the Agreement and the Bond Purchase Agreement, when executed and delivered by the Company, will be, the legal, valid and binding obligation of the Company enforceable in accordance with their respective tenus, except as limited by the laws of the State of California affecting remedies and except as enforcement thereof may be limited by bankruptcy, insolvency or other laws or equitable principles affecting the enforcement of creditors' rights. (j) The execution and delivery of [the Broker-Dealer Agreement,] the Bond Purchase Agreement, the Agreement and this Inducement Letter, and the perfonnance by the Company of its obligations thereunder do not and will not violate the Articles of Incorporation or Bylaws of the Company, or any court order by which the Company is bound, and such actions do not and will not constitute a default under any material agreement, indenture, mortgage, lease, note or other obligation or instrument to which the Company is a party or by which it is bound or to which any of its property is subject, and no approval or other action by any governmental authority or agency is required in connection therewith, except that of the Issuer and the Public Utilities Commission of the State of California, all of which have been obtained. (k) The Company releases the Issuer fÌ"om, and covenants and agrees that the Issuer shall not be liable for, and covenants and agrees, to the extent pennitted by law, to indemnify, defend and hold harmless the Issuer and its officers, elected officials, employees and agents fÌ"om and against, any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting fÌ"om or in any way connected with (1) the Project, or the conditions, occupancy, use, possession, conduct or management of, or work done in or about, or fÌ"om the planning, design, acquisition, installation or construction of the Project or any part thereof; (2) the issuance of any Bonds or any certifications, covenants or A-3 LA) 539065v6 representations made in connection therewith and the carrying out of any of the transactions contemplated by the Bonds, the Bond PUrchase Agreement, this Inducement Letter, the Indenture and the Agreement; (3) the Trustee's acceptance or administration of the trusts under the Indenture; (4) the exercise or perfonnance of any of the Issuer's powers or duties under the Bond Purchase Agreement, this Inducement Letter, the Indenture or the Agreement; or (5) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, in any official statement or other offering circular utilized by the Issuer or any underwriter or placement agent in connection with the sale of any Bonds, except for statements provided by the Issuer; provided that such indemnity shall not be required for damages that result from sole gross negligence or willful misconduct on the part of the party seeking such indemnity. The indemnity of the Trustee required by this subsection (k) shall be only to the extent that any loss sustained by the Trustee exceeds the net proceeds the Trustee receives from any insurance carried with respect to the loss sustained. The Company further covenants and agrees, to the extent pennitted by law, to payor to reimburse the Issuer and its officers, elected officials, employees and agents for any and all reasonable costs, including but not limited to attorneys fees, liabilities or expenses incurred in connection with investigating, defending against or otherwise in connection with any such losses, claims, damages, liabilities, expenses or actions, except to the extent that the same arise out of the negligence or willful misconduct of the party claiming such payment or reimbursement. (1) The Company agrees to indemnify and hold harmless the Underwriter, the directors, officers, employees and agents of the Underwriter and each person who controls the Underwriter within the meaning of either the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act, (collectively called the "Indemnified Parties") against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Official Statement, the final Official Statement (or in any supplement or amendment thereto), or arise out of or are based upon the omission or alleged omission to state therein 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, and agrees to reimburse each such Indemnified Party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Preliminary Official Statement or the final Official Statement under the caption "UNDERWRITING," or in any amendment thereof or supplement thereto, in reliance upon and in confonnity with written infonnation furnished to the Company by or on behalf of the Underwriter specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (m) Promptly after receipt by an Indemnified Party hereunder of notice of the commencement of any action, such Indemnified Party will, if a claim in respect thereof is to be made against the Company hereunder, notify the Company in writing of the commencement A-4 LA] 539065v6 thereof; but the failure so to notify the Company (i) will not relieve it from liability under paragraph (1) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the Company of substantial rights and defenses; and (ii) will not, in any event, relieve the Company from any obligations to any Indemnified Party other than the indemnification obligation provided in paragraph (I) above. The Company shall be entitled to appoint counsel of the Company's choice at the Company's expense to represent the Indemnified Party in any action for which indemnification is sought (in which case the Company shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the Indemnified Party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the Indemnified Party. Notwithstanding the Company's election to appoint counsel to represent the Indemnified Party in an action, the Indemnified Party shall have the right to employ separate counsel (including local counsel), and the Company shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Company to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and the Company and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the Company; (iii) the Company shall not have employed counsel satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action; or (iv) the Company shall authorize the Indemnified Party to employ separate counsel at the expense of the Company. An Company will not, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any commenced and ongoing or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim, action, suit or proceeding. (n) In the event that the indemnity provided in paragraph (1) above is unavailable to or insufficient to hold harmless an Indemnified Party for any reason, the Company and the Underwriter agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively "Losses") to which the Company and the' Underwriter may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriter on the other from the offering of the Bonds. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriter shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriter on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. In no case shall the Underwriter be responsible for any amount in excess of the purchase discount or commission applicable to the Bonds purchased by such Underwriter hereunder. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriter shall be deemed to be equal to the total purchase discounts and commissions in each case set forth in the final Official Statement. Relative fault shall be detennined by reference to, among other things, whether any untrue or any A-5 d2-/3~ LAI 539065v6 alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to infonnation provided by the Company on the one hand or the Underwriter on the other, the intent of the parties and their relative knowledge, infonnation and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriter agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph, no person guilty of fraudulent misrepresentation (within the meaning of Section ll(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph, each Indemnified Party shall have the same rights to contribution as the Underwriter, subject in each case to the applicable terms and conditions of this paragraph. (0) The Company will deliver or cause to be delivered the opinions, certificates and other documents as provided in the Bond Purchase Agreement, including but not limited to the opinion of , Assistant General Counsel of the Company, dated as of the Closing Date, covering, among other things, the due authorization, execution and delivery of this Inducement Letter, the Bond Purchase Agreement and the Agreement. (P) The Company will furnish the Underwriter such proper information as may be lawfully required and otherwise use its best efforts to assist the Underwriter in qualifying the Bonds for offer and sale by the Underwriter and by dealers and in determining the eligibility of the Bonds for investment under the securities laws of such jurisdictions as the Underwriter may reasonably designate; provided that the Company shall not be required to qualify as a foreign corporation or dealer in securities or to file a general consent to service of process or to file an annual report in any jurisdiction or to meet any other requirements deemed by the Company to be unduly burdensome. (q) During such period as the Underwriter is required by Rule 15c2-12(b)(4) of the Commission to deliver the Official Statement in connection with sales by an Underwriter or any securities dealer, if any event occurs as a result of which the Official Statement as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, the Company will promptly notify the Underwriter, and, if such event occurs within ninety days after the date of the Official Statement, the Company, with the consent of the Issuer, subject to paragraph (q) hereof and without cost and expense to the Underwriter or such dealer, will amend or supplement such Official Statement in order to correct such statement or omission. In case an Underwriter or any dealer is required to deliver an Official Statement more than ninety days after the date of the Official Statement, the Company, with the consent of the Issuer and subject to paragraph (q) hereof, will promptly so amend or supplement the Official Statement at the expense of the Underwriter or dealer requesting the same. (r) For a period of five years from the date of this Inducement Letter the Company will furnish, upon request, to the Underwriter copies of the annual and interim reports of the Company to its stockholders as soon as the same have been sent to such stockholders and any reports filed with the Commission. A-6 ~-/37 LA! 539065v6 (s) The Company will not amend or supplement, or pennit an amendment or supplement to, the Official Statement without the consent of the Issuer and the Underwriter. (t) The Company will file promptly all reports required to be filed by the Company with the Commission pursuant to Section 13 or 15( d) of the Exchange Act subsequent to the date of the Official Statement and for so long as the delivery of a copy of such Official Statement are required to be delivered in connection with sales of the Bonds. (u) Subject to the terms and conditions of the Bond Purchase Agreement, the Company agrees to pay as and when due the fees and expenses contemplated to be paid by it pursuant to the Bond Purchase Agreement. (v) The Company is eligible as an issuer to file registration statements on Form S-3 under the Securities Act. The Company will also pay reasonable accountants' fees for the preparation of any annual or other audits, verification and other reports or summary thereof required by the Indenture; and any fees and expenses of the Issuer or any agency of the Issuer selected by the Issuer to act on its behalf in connection with the Redemption and Refunding of the Bonds including any and all reasonable expenses incUlTed by the Issuer in connection with any litigation which may at any time be instituted involving the Redemption and Refunding or the Bonds, and including Issuer staff costs at then-applicable full cost recovery rates, without offset. The Company hereby ratifies, confirms and approves of the use and distribution by the Underwriters prior to the date hereof of the preliminary official statement related to the Bonds dated , 2003 (the "Preliminary Official Statement"), which Preliminary Official Statement the Company has deemed final as of its date for purposes of Rule 15c2-12 ("Rule 15c2-12") promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided, however, that the foregoing representation as to the finality of such form of official statement does not include a representation as to the finality of the statements and information contained therein concerning the statements under the captions "THE CITY" and "ABSENCE OF MATERIAL LITIGATION - The City." The Company hereby approves, confirms and ratifies the use and distribution by the Underwriter of the final Official Statement and hereby authorizes the use of the Official Statement and the Transaction Documents in connection with the public offering and sale of the Bonds by the Underwriters. The Underwriter agrees to indemnify and hold harmless the Company, each of its official, directors, officers and employees, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act, and the Issuer, its officers, representatives and council members, to the same extent as the indemnity provided in paragraph (1) above from the Company to the Underwriter, but only with reference to written information relating to the Underwriter furnished to the Company by or on behalf of the Underwriter specifically for inclusion in the Preliminary Official Statement or the final Official Statement (or in any amendment or supplement thereto). This indemnity agreement will be in addition to any liability which the Underwriter may otherwise have. The Company acknowledges that the statements set forth in the sentence on page - concerning the Underwriter's review of the A-7 d f LA I 539065v6 information in the Official Statement in accordance with, and as part of, its responsibilities to investors under the federal securities laws and the legend in block capital letters on page - concerning stabilization in the Preliminary Official Statement and the fmal Official Statement, constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Preliminary Official Statement or the final Official Statement (or in any amendment or supplement thereto). The representations, warranties, covenants and indemnities contained in this Inducement Letter shall survive the Closing under the Bond Purchase Agreement, the sale by the Issuer to the Underwriter and resale by the Underwriter of the Bonds, any investigation by the Underwriter or the Issuer or the transactions covered by this Inducement Letter, the Transaction Documents, [the Market Agent Agreement] and the Official Statement. A-8 ¿;¡-139 LA! 539065v6 If you agree with the foregoing, please sign and return to us the enclosed counterpart of this letter, whereupon it shall become a binding agreement between each of you and the Company. Very truly yours, SAN DIEGO GAS & ELECTRIC COMPANY By: Senior Vice President, Chief Financial Officer and Treasurer The foregoing is hereby accepted as of the date hereof: CITY OF CHULA VISTA [UNDER WRITER] By: By: Director of Finance/Treasurer Authorized Officer Attest: City Clerk Approved as to Form and Legality ANN MOORE City Attorney By: [Title] A-9 d. ~ /'to LA! 539065v6 EXHIBIT B [Fonn of Opinion of Bond Counsel] [UNDERWRITERS] Attention: Re: City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200 Series A. 200 Series B. 200 Series C. 200 Series D. 200 Series E (Supplemental Opinion) Ladies and Gentlemen: This letter is addressed to you, as Underwriter, pursuant to Section 6(c)(i) of the Bond Purchase Agreements, each dated , 200- (the "Purchase Agreements"), between yourselves and the City of Chula Vista (the "City"), providing, respectively, for the purchase of $ principal amount of City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company), 200- Series A, 200- Series B, 200- Series C, 200- Series D and 200- Series E (collectively, the "Bonds"). Each Series of the Bonds is being issued pursuant to a separate Indenture of Trust, dated as of , 200- (each an "Indenture" and collectively, the "Indentures"), between the City and ,as trustee (the "Trustee"), for the stated purpose of making loans of the proceeds of each to San Diego Gas & Electric Company, a California corporation (the "Company"), pursuant to separate Loan Agreements, each dated as of , 200- (each a "Loan Agreement" and collectively the "Loan Agreements"), between the City and the Company. Capitalized tenus not otherwise defined herein shall have the meanings ascribed thereto in the Indentures or, if not defined in the Indentures, in the Purchase Agreement. We have delivered our final legal opinion (the "Bond Opinion") as bond counsel concerning the validity of the Bonds and certain other matters, dated the date hereof and addressed to the City. You may rely on such opinion as though the same were addressed to you. In connection with our role as bond counsel, we have reviewed the Purchase Agreement, the Indentures, the Loan Agreements, the Tax Certificate, certain ordinances and resolutions of the City, opinions of counsel to the City, the Trustee and the Company, certificates of the City, the Trustee, the Company and others, and such other documents, opinions and matters to the extent we deemed necessary to provide the opinions or conclusions set forth herein. The opinions or conclusions expressed herein are based on an analysis of existing laws, regulations, rulings and court decisions and cover certain matters not directly addressed by such authorities. Such opinions may be affected by actions taken or omitted or events occurring after B-1 cJ-1 I LA! 539065v6 the date hereof. We have not undertaken to detennine, or to infonn any person, whether any such actions are taken or omitted or events do occur. We have assumed the genuineness of all documents and signatures presented to us (whether as originals or as copies) and the due and legal execution and delivery thereof by, and validity against, any parties other than the City. We have not undertaken to verify independently, and have assumed, the accuracy of the factual matters represented, warranted or certified in the documents, and of the legal conclusions contained in the opinions, referred to in the third paragraph hereof. We have further assumed compliance with all covenants and agreements contained in such documents. In addition, we call attention to the fact that the rights and obligations under the Bonds, the Indentures, the Loan Agreements, the Tax Certificate and the Purchase Agreements are subject to bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors' rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies. We express no opinion with respect to any indemnification, contribution, choice of law, choice of forum or waiver provisions contained therein. Based on and subject to the foregoing, and in reliance thereon, as of the date hereof, we are of the following opinions or conclusions: 1. The Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and each Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended. 2. The Purchase Agreements have been duly authorized, executed and delivered by the City and (assuming due authorization, execution and delivery by and validity against the Underwriter) are a valid and binding agreements of the City. 3. The statements contained in the Official Statement, dated ,200_, with respect to the Bonds, under the captions "THE BONDS" (excluding therefrom all infonnation under the caption "BOOK-ENTRY SYSTEM," as to which no opinion is expressed), "THE LOAN AGREEMENT," "THE INDENTURE" and "TAX MATTERS," insofar as such statements expressly summarize certain provisions of the Bonds, the Indentures, the Loan Agreements and our Bond Opinion, are accurate in all material respects. This letter is furnished by us as bond counsel. No attorney-client relationship has existed or exists between our finn and yourselves in connection with the Bonds or by virtue of this letter. We disclaim any obligation to update this letter. This letter is delivered to you as Underwriters of the Bonds, is solely for your benefit as such Underwriters and is not to be used, circulated, quoted or otherwise referred to or relied upon for any other purpose or by any other person. This letter is not intended to, and may not, be relied upon by owners of Bonds or by any other person to whom it is not specifically addressed. Very truly yours, B-2 ;) -/ '1;;)- LA! 539065v6 EXHIBIT C [Form of Opinion of Counsel to the Company] ,200 - City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 [UNDER WRITERS] Re: City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200 Series A 200 Series B. 200 Series C. 200 Series D and 200 Series E Ladies and Gentlemen: I am Assistant General Counsel of San Diego Gas & Electric Company (the "Company"), and I am familiar or a member of my staff is familiar with the proceedings relating to the execution and delivery by the Company of the Loan Agreements, each dated as of , 200- (each and "Agreement" and collectively "the "Agreements") between the Company and the City of Chula Vista (the "City"). The Loan Agreements are being executed and delivered in connection with the issuance by the City of the above-referenced Bonds. This opinion is being rendered pursuant to the Bond Purchase Agreements each dated , 200- (each a "Bond Purchase Agreement" and collectively, the "Bond Purchase Agreements") between the City, and the underwriters of the Bonds indicated therein. The terms "Official Statement," "Bonds," ["Broker-Dealer Agreement,"] ["Continuing Disclosure Certificate,"] "Indentures" and "Inducement Letter" are used in this opinion with the respective meaning assigned to such terms in the Bond Purchase Agreements. I have examined or a member of my staff has examined [the Broker-Dealer Agreements,] the Agreements, ["Continuing Disclosure Certificate,"] the Official Statement and the Inducement Letters. I have assumed the genuineness of all signatures and authenticity of all documents submitted to me as originals, and the conformity to the originals of all documents submitted to me as copies. On the basis of the foregoing examinations, and in reliance thereon and on all other matters of fact that I deem relevant under the circumstances, and in consideration of the applicable laws, subject to the qualifications herein stated, I am of the opinion that: C-l LA! 539065v6 1. The Company is a corporation duly incorporated, validly existing, in good standing and authorized to exercise its corporate powers, rights and privileges under the laws of the State of California. 2. The Company has corporate power and authority to take all actions required or pennitted to be taken by the Company by or under, and to perfonn and observe the covenants and agreements on its part contained in the Inducement Letters, [the Broker-Dealer Agreements] [, the Continuing Disclosure Certificate] and the Agreements. 3. The Company has duly taken all corporate action necessary to be taken by it prior to the date hereof for the authorization of: (i) the execution, delivery and perfonnance by the Company of the Inducement Letters, [the Broker-Dealer Agreements] [, the Continuing Disclosure Certificate] and the Agreements, and (ii) the carrying out, giving effect to, consummation and perfonnance by the Company of the transactions and obligations contemplated by the Inducement Letter, [the Broker-Dealer Agreements] [, the Continuing Disclosure Certificate] and the Agreements and the Official Statement; provided, that no opinion is expressed with respect to compliance with the securities or "Blue Sky" laws of the various states of the United States. 4. On and as of the date hereof, all authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of, any governmental body, agency, regulatory authority or other instrumentality or court required to be obtained, given or taken on behalf of the Company in connection with the execution, delivery and perfonnance by the Company of the Inducement Letters, [the Broker-Dealer Agreements] [, the Continuing Disclosure Certificate] and the Agreements, including, without limitation, orders of the Public Utilities Commission of the State of California, have been obtained, given or taken and are in full force and effect, provided that no opinion is expressed with respect to compliance with the securities or "Blue Sky" laws of the various states of the United States. 5. To the best of my knowledge after due inquiry, there is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any public board or body commenced and ongoing or threatened against the Company, wherein an unfavorable decision, ruling or order would have a material adverse effect on the validity or enforceability of the Bonds, the Indentures, [the Broker-Dealer Agreements, the Market Agent Agreements, the Auction Agent Agreements,] [, the Continuing Disclosure Certificate] the Agreements, or the Inducement Letters or, except as set forth in the Official Statement, which would have a material adverse effect on the business or financial condition of the Company. 6. The Inducement Letters, [the Broker-Dealer Agreements] [, the Continuing Disclosure Certificate] and the Agreements are legal, valid and binding obligations of the Company enforceable in accordance with their tenus, except as limited by the laws of the State of California affecting remedies and except as enforcement thereof may be limited by bankruptcy, insolvency or other laws or equitable principles affecting the enforcement of creditors' rights and except as enforcement of the indemnification provisions set forth in the Inducement Letters (as applied to liabilities incurred as a result of violations of applicable federal or state securities laws) may be limited by public policy considerations. C-2 ~ -ILjtf LA! 539065v6 7. The execution and delivery of [the Broker-Dealer Agreements,] the Agreements and the Inducement Letters, and the performance by the Company of its obligations thereunder, do not and will not violate the Articles of Incorporation or Bylaws of the Company, or any court order by which the Company is bound, and such actions do not and will not constitute a default under any material agreement, indenture, mortgage, lease, note or other obligation or instrument to which the Company is a party or by which it is bound or to which any of its property is subject, and no approval or other action by any governmental authority or agency is required in connection therewith, except that of the City and the Public Utilities Commission of the State of California, all of which have been obtained, provided that no opinion is expressed with respect to compliance with the securities or "Blue-Sky" laws of the various states of the United States. 8. To the best of my knowledge, the Company is not in default under any indenture or other agreement or instrument governing outstanding indebtedness issued by the Company nor, to the best of my knowledge, has any event occurred and is continuing which with notice or the passage of time or both would constitute a default under any such document. 9. The statements contained in the Official Statement under the headings "THE BONDS," "THE LOAN AGREEMENTS," and "THE INDENTURES," insofar as such statements summarize the provisions of the documents refeITed to therein, present fairly the information purported to be shown. 10. There is no requirement to register the Agreements under the Securities Act of 1933, as amended, or to qualify the Agreements under the Trust Indenture Act of 1939, as amended. I am a member of the California bar. The foregoing opinions are based on existing laws, rules and regulations. No opinion is expressed as to laws other than the laws of the State of California and the federal laws of the United States. Additionally, I advise you that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, except as set forth above, nothing has come to my attention in the course of my participation in the preparation of the Official Statement and in the transactions contemplated thereby, or in the performance of my duties as Assistant General Counsel of the Company, or otherwise, that would lead me to believe, as of the date hereof that the Official Statement (except for the financial statements and other financial and statistical data included or incorporated by reference therein, as to which I express no opinion), contains any untrue or misleading statement of a material fact or omits to state any material fact necessary make the statement therein, in the light of the circumstances under which they were made, not misleading. I hereby confirm my consent to the use of my name on the front cover page of the Official Statement and in the section of the Official Statement entitled "Legal Matters." LA! 539065v6 C-3 d- #' / 15 Very truly yours, Assistant General Counsel LAI 539065v6 C-4 ;2 - J 4- tp EXHIBIT D [Form of Opinion of Special Counsel to the City] ,200- Orrick, Herrington & Sutcliffe LLP 400 Sansome Street San Francisco, California 94111 Sidley Austin Brown & Wood LLP 555 California Street, Suite 5000 San Francisco, California 94104-1715 [UNDER WRITERS] Re: City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200 Series A 200 Series B, 200 Series C, 200 Series D and 200 Series E Ladies and Gentlemen: We have acted as special legal counsel to the City of Chula Vista (the "City") in connection with the issuance by the City of its Industrial Development Refunding Revenue Bonds (San Diego Gas & Electric Company) 200- Series A, 200- Series B, 200- Series C, 200- Series D and 200- Series E (collectively, the "Bonds"). We have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, records and other instruments as we have deemed necessary or appropriate for the purposes of this opinion, including (i) the Bond Purchase Agreements (the "Purchase Agreements") each dated , 200_, between the City and (the "Underwriter"), including the Inducement Letters (the "Inducement Letters") each dated , 200_, delivered by the San Diego Gas & Electric Company (the "Company"), (ii) each of [five] Indenture of Trust, dated as of , 200- (the "Indentures"), by and between the City and , as trustee (the "Trustee"), (iii) each of [five] Loan Agreements (the "Agreements") dated as of , 200_, by and between the City and the Company, [(iv) the Broker-Dealer Agreements (the "Broker-Dealer Agreements") each dated as of , 200_, by and between the City, the Company and the Underwriter] (the preceding documents collectively refeITed to herein as the "Operative Documents"), (v) the Official Statement of the City, dated ,200_, relating to the Bonds (the "Official Statement"), (vi) Chapter 3.48 of the Chula Vista Municipal Code, the City's Resolution No. 18302 and Resolution No. 18384 (collectively, the "Proceedings"), (vii) the Constitution of the State of California, (viii) the Charter of the City (the "Charter"), (ix) pertinent provisions of the Chula Vista Municipal Code D-l ;;)- 14 LA! 539065v6 ("CVMC") and (x) the various certificates and counsel opinions executed and delivered in connection with the sale of the Bonds. . As to questions of fact material to our opinion, we have relied upon representations of City, without undertaking to verify the same by independent investigation. Based upon the foregoing and upon consideration of applicable law, we are of the opinion as follows: 1. The City is a charter city municipal corporation duly organized and existing under the Constitution and laws of the State of California and the Charter. 2. The City has full legal right, power and authority under the Constitution, the Charter and the CVMC to undertake the transactions contemplated by the Operative Documents, to adopt the Proceedings, to execute and deliver the Operative Documents and to perform its obligations thereunder and to take all actions in carrying out and consummating the transactions contemplated thereby and by the Official Statement, and has taken all proceedings and obtained all consents and approvals required in connection therewith by the Charter and the CVMC. 3. The Proceedings have been duly adopted by the City in accordance with all requirements of California law, the Charter, the CVMC and all procedural rules of the City and are in full force and effect on the date hereof, and the officials of the City listed on the certificate of the City delivered on the date hereof have been duly appointed and are qualified to serve as such. 4. The City authorized the issuance and sale of the Bonds, and has duly authorized, executed and delivered the Operative Documents, the Official Statement and the Bonds, and has taken all actions necessary or appropriate to carry out and consummate the transactions contemplated thereby, and the making and performance of each such agreement, the taking of all actions in carrying out and consummating the transactions contemplated thereby and by the Official Statement and the issuance and sale of the Bonds do not conflict with or violate the Charter or the CVMC, or the best of my knowledge, after ,due inquiry, conflict with or result in a breach of or constitute a default under any decree, order, indenture, agreement or other instrument by which the City or any of its property and by which the City or any of its properties may be bound. 5. The City has duly approved the Official Statement and has authorized its execution, delivery and distribution in connection with the sale of the Bonds. 6. To the best of our knowledge after due inquiry, except as may be stated in the Official Statement, there is no litigation proceeding or investigation before or by any court, public board or body commenced and ongoing, or to our knowledge threatened, against or affecting the City challenging the validity of, or in which an unfavorable decision, ruling or order would adversely affect, the Proceedings, the Operative Documents, any of the transactions contemplated by such instruments and the Official Statement or the performance by the City of any of its obligations thereunder, or the operation of the Project (as that term is defined in the Indenture). D-2 t ~ LA! 539065v6 """ I 7. Nothing has come to our attention which causes us to believe that the information contained under the following headings of the Official Statement is not true and correct or contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements in the Official Statement, in the light of the circumstances under which they were made, not misleading: "THE CITY," "THE LOAN AGREEMENTS," "THE INDENTURES," and information relating to the same under "INTRODUCTORY STATEMENT." Sincerely yours, D-3 LA! 539065v6 -, EXHIBIT E [FORM OF OPINION OF TRUSTEE'S COUNSEL] [UNDER WRITER] City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Re: City of Chula Vista Industrial Development Refunding Revenue Bonds (San Diego Gas- & Electric Company) 200 Series A. 200 Series B. 200 Series C. 200 Series D and 200 Series E Ladies and Gentlemen: We have acted as counsel for , as trustee (the "Trustee") under those certain Indentures of Trust (the "Indentures") dated as of , 200- by and between the Trustee and the City of Chula Vista (the "City") relating, respectively, to the execution and delivery ofthe above-referenced bonds (the "Bonds"). We have examined an original or copy of the Indentures. [We have also examined the Auction Agent Agreement (the "Auction Agent Agreement") dated as of ,200- by and among the Trustee, and the City.] Unless otherwise defined herein or unless the context otherwise requires, tenns defined in the Indentures shall have the same meanings herein. In addition, we have examined such records, documents, instruments, certificates of public officials and of the Trustee, and considered such questions of law as we have deemed necessary for the purpose of rendering the opinions set forth herein. We have assumed the genuineness of all signatures other than those of the Trustee and the authenticity of all items submitted to us as originals and the confonnity with originals of all items submitted to us as copies. In making our examination of the Indentures [and the Auction Agent Agreement,] we have assumed that each party to the Indentures [or the Auction Agent Agreement] other than the Trustee has the power to enter into and perfonn its obligations respectively thereunder, has duly authorized, executed and delivered the Indentures [and the Auction Agent Agreement], as the case may be, and that the Indentures [and Auction Agent Agreement] each constitutes the legal, valid and binding obligation of such party. As to the genuineness of the Trustee's signatures and the authority of any person to execute and deliver any document on the Trustee's behalf, we have relied solely on an incumbency certificate of the Trustee and have made no independent investigation as to the accuracy of such certificate. E-I ;) -I SO LA! 539065v6 We express no opinion as to the perfection or priority of any security interest or lien purported to be created by the Indentures. Our opinion in paragraph 1 below is based solely upon certificates of public officials of the United States and officers of the Trustee. We have made no independent investigation as to whether those certificates are accurate or complete. Our opinion in paragraph 4 below is subject to the following further exceptions and qualifications: (a) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination; (b) limitations imposed by general principles of equity upon the availability of equitable remedies or the enforcement of provisions of the Indentures and the Auction Agent Agreement, and the effect of judicial decisions which have held that certain provisions are unenforceable where their enforcement would violate the implied covenant of good faith and fair dealing, or would be commercially unreasonable; and (c) the effect of judicial decisions permitting the introduction of extrinsic evidence to modify the terms or the interpretation of the Indentures or the Auction Agent Agreement. Based upon and subject to the foregoing, we are of the opinion that: 1. The Trustee, is a national banking association with trust powers, duly created and lawfully existing under the laws of the United States of America. 2. The Trustee is authorized under the applicable to law to perform all duties and responsibilities of the Trustee under the Indenture. 3. The Trustee has duly authorized by all necessary corporate action the execution and delivery by the Trustee of the Indentures [and the Auction Agent Agreement]. 4. The Indentures [and the Auction Agent Agreement] have been duly executed and delivered by the Trustee. 5. The Indentures [and the Auction Agent Agreement] constitute the valid and binding agreements of the Trustee, enforceable against the Trustee in accordance with their respective terms. We express no opinion as to any matter other than as expressly set forth above, and, in conjunction therewith, we specifically express no opinion as to the status of the Bonds or the interest thereon under any federal securities laws, including but not limited to the Securities Act of 1933, as amended, and the Trust Indenture Act of 1939, as amended, or any state securities or "Blue Sky" law, or any other federal or local tax law which is in effect on the date hereof. E-2 ;; I LA! 539065v6 This opinion is solely for your benefit and may not be relied on by, nor may copies be delivered to, any other person without our prior written consent. Respectfully submitted, E-3 ~øøI59- LA] 539065v6 LOAN AGREEMENT THIS LOAN AGREEMENT, dated as of f 1, 200~, by and between the CITY OF CHULA VISTA, a municipal corporation and charter city duly organized and existing under the laws and Constitution of the State of California (the "City"), and SAN DIEGO GAS & ELECTRIC COMPANY, a corporation organized and existing under the laws of the State of California (the "Borrower"), WITNESSETH: WHEREAS, the City is a municipal corporation and charter city, duly organized and existing under a :tTeeholders' charter pursuant to which the City has the right and power to make and enforce all laws and regulations in accordance with and as more particularly provided in Sections 3, 5 and 7 of Article XI of the Constitution of the State of California and Section 200 ofthe Charter of the City (the "Charter"); and WHEREAS, the City Council of the City, acting under and pursuant to the powers reserved to the City under Sections 3, 5 and 7 of Article XI of the Constitution and Section 200 of the Charter, has enacted Chapter 3.48 of the Chula Vista Municipal Code, pursuant to Ordinance No. 1970 adopted on February 9, 1982, as amended :tTom time to time (the "Law"), establishing a program to provide financial assistance for the acquisition, construction and installation of facilities for industrial, commercial or public utility purposes; and WHEREAS, the Borrower has duly applied to the City for financial assistance to refinance the costs of acquisition, construction and installation of certain facilities for the generation, transmission and distribution of electric energy, as more fully described in Exhibit A hereto (the "Project"), by prepaying certain loans (collectively, the "Prior Loans") made to the Borrower with the proceeds of [The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1992 Series A, 1992 Series B, and 1992 Series C (the "SD 1992 Bonds"), The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1993 Series A and 1993 Series C (the "SD 1993 Bonds"), The City of San Diego Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 1995 Series A and 1995 Series B (the "SD 1995 Bonds"), The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1992 Series A, 1992 Series B, 1992 Series C and 1992 Series D (the "CV 1992 Bonds"), The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1996 Series A and 1996 Series B (the "CV 1996 Bonds"), and The City of Chula Vista Industrial Development Revenue Bonds (San Diego Gas & Electric Company) 1997 Series A (the "CV 1997 Bonds" and, together with the SD 1992 Bonds, the SD 1993 Bonds, the SD 1995 Bonds, the CV 1992 Bonds and the CV 1996 Bonds, the "Prior Bonds")], resulting in the refunding of the Prior Bonds; and WHEREAS, the City after due investigation and deliberation has detennined that the Project and the refinancing thereof, and the resulting refunding of the Prior Bonds, will directly benefit the citizens of the City by substantially promoting the public interests recited in the Law and has adopted its resolutions authorizing the provision or lending of financial DOCSSFI :645020.13 assistance to the Borrower to refmance the costs of acquisition, construction and installation of the Project and to prepay the Prior Loans, and the issuance and sale of its bonds, including its Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) 200- Series - (the "Bonds"), for such purposes; and WHEREAS, the City proposes to assist in such refmancing upon the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the premises and the respective representations and covenants herein contained, the parties hereto agree as follows: ARTICLE I DEFINITIONS SECTION 1.1 DEFINITION OF TERMS. Unless the context otherwise requires, the terms used in this Agreement shall have the meanings specified in Section 1.01 of the Indenture of Trust, of even date herewith relating to the Bonds (the "Indenture"), by and between the City and U.S. Bank, N.A., as trustee (the "Trustee"), as originally executed or as it may from time to time be supplemented or amended as provided therein, and including the Multi-Mode Annex attached thereto. SECTION 1.2 NUMBER AND GENDER. The singular form of any word used herein, including the terms defined in Section 1.01 of the Indenture, shall include the plural, and vice versa. The use herein of a word of any gender shall include all genders. SECTION 1.3 ARTICLES. SECTIONS. ETc. Unless otherwise specified, references to Articles, Sections and other subdivisions of this Agreement are to the designated Articles, Sections and other subdivisions of this Agreement as originally executed. The words "hereof," "herein," "hereunder" and words of similar import refer to this Agreement as a whole. The headings or titles of the several articles and sections, and the table of contents appended to copies hereof, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of the provisions hereof ARTICLE II REPRESENTATIONS SECTION 2.1 REPRESENTATIONS OF THE CITY. The City makes the following representations as the basis for its undertakings herein contained: (a) The City is a municipal corporation and charter city in the State of California. Under the provisions of the Law, the City has the power to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder. The Project constitutes a "project" as that term is defined in the Law. By proper action, the City has been duly authorized to execute, deliver and duly perform this Agreement and the Indenture. DOCSSFI :645020.13 2 ;;..,/ çLf (b) To refinance the cost of the Proj ect, the City will issue the Bonds which will mature, bear interest and be subject to redemption as set forth in the Indenture. (c) The Bonds will be issued under and secured by the Indenture, pursuant to which the City's interest in this Agreement (except certain rights of the City to give approvals and consents and to receive payment for expenses and indemnification and certain other payments) will be pledged to the Trustee as security for payment of the principal of, premium, if any, and interest on the Bonds. (d) The City has not pledged and will not pledge its interest in this Agreement for any purpose other than to secure the Bonds under the Indenture. (e) The City is not in default under any of the provisions of the laws of the State of California or the City's Charter which default would affect its existence or its powers referred to in subsection (a) of this Section 2.1. (f) The City has found and detennined and hereby finds and detennines that all requirements of the Law with respect to the issuance of the Bonds and the execution of this Agreement and the Indenture have been complied with and that refinancing the Project by issuing the Bonds, refunding or replacing the Prior Bonds and entering into this Agreement and the Indenture will be in furtherance of the purposes of the Law. (g) On -' 200_, the City Council of the City adopted Resolution No. - authorizing the issuance and sale of the Bonds and the execution and delivery of the Indenture, this Agreement, bond purchase agreements and official statements in connection with the sale of the Bonds. SECTION 2.2 REPRESENT A nONS OF THE BORROWER. The Borrower makes the following representations as the basis for its undertakings herein contained: (a) The Borrower is a corporation duly fonned under the laws of the State of California, is in good standing in the State of California and has the power to enter into and has duly authorized, by proper corporate action, the execution and delivery of this Agreement and all other documents contemplated hereby to be executed by the Borrower. (b) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the tenus and conditions hereof and thereof, conflicts with or results in a breach of any of the terms, conditions or provisions of the Borrower's Articles of Incorporation or By-laws or of any corporate actions or of any agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default (with due notice or the passage of time or both) under any of the foregoing, or results in the creation or imposition of any prohibited lien, charge or encumbrance whatsoever upon any of the property or assets of the Borrower under the terms of any instrument or agreement to which the Borrower is now a party or by which it is bound. (c) The Project consists and will consist of those facilities described in Exhibit A hereto, and the Borrower shall make no changes to any portion of the Project or to the operation thereof which would affect the qualification of the Project as a "project" under the Law DOCSSFI:645020.13 3 ;;¿-I or impair the exemption from gross income of the interest on the Bonds for federal income tax purposes. In particular, the Borrower shall comply with all requirements of the Tax Certificate, dated the Issue Date (the "Tax Certificate"), which is hereby incorporated by reference herein. The Project consists of facilities for the local furnishing of electric energy as described in the Tax Certificate. The Borrower intends to utilize such portion of the Project as facilities for the local furnishing of electric energy throughout the foreseeable future. (d) The Borrower has and will have title to the Project sufficient to carry out the purposes of this Agreement. (e) All certificates, approvals, permits and authorizations with respect to the construction of the Project of agencies of applicable local governmental agencies, the State of California and the federal government have been obtained; and pursuant to such certificates, approvals, permits and authorizations the Project has been constructed and is in operation. ARTICLE III ISSUANCE OF THE BONDS: APPLICATION OF PROCEEDS SECTION 3.1 AGREEMENT TO ISSUE BONDS: APPLICA TION OF BOND PROCEEDS. To provide funds to enable the Borrower to refinance a portion of the cost of the Project by prepaying the Prior Loans, the City agrees that it will issue under the Indenture, sell and cause to be delivered to the purchasers thereof, the Bonds, bearing interest as provided and maturing on the date set forth in the Indenture. The City will thereupon apply the proceeds received from the sale of the Bonds as provided in Section 3.02 ofthe Indenture. SECTION 3.2 INVESTMENT OF MONEYS IN FUNDS. Any moneys in any fund held by the Trustee shall, at the written request of an Authorized Borrower Representative, be invested or reinvested by the Trustee as provided in the Indenture. Such investments shall be held by the Trustee and shall be deemed at all times a part of the fund from which such investments were made, and the interest accruing thereon and any profit or loss realized therefrom shall, except as otherwise provided in the Indenture, be credited or charged to such fund. SECTION 3.3 AMENDMENT OF DESCRIPTION OF THE PROJECT. In the event that the Borrower desires to amend or supplement the Project, as described in Exhibit A hereto, and the City in its sole discretion approves of such amendment or supplement, the City will enter into, and will instruct the Trustee to consent to, such amendment or supplement upon receipt of: (i) a certificate of an Authorized Borrower Representative describing in detail the proposed changes and stating that they will not have the effect of disqualifying any component of the Project as a facility that may be financed pursuant to the Law; (ii) a copy of the proposed form of amended or supplemented Exhibit Ahereto; and ~-15~ DOCSSF 1:645020.13 4 t:::>4 (iii) an Opinion of Bond Counsel that such proposed changes will not affect the exclusion from gross income of interest on the Bonds for federal income tax purposes. ARTICLE IV . LOAN TO BORROWER; REPAYMENT PROVISIONS SECTION 4.1 LOAN TO BORROWER. The City and the Borrower agree that the application of the proceeds of sale of the Bonds to refund and retire the Prior Bonds and the first mortgage bonds of the Borrower relating thereto will be deemed to be and treated for all purposes as a loan to the Borrower of an amount equal to the principal amount of the Bonds. SECTION 4.2 REPAYMENT AND PAYMENT OF OTHER AMOUNTS PA Y ABLE. (a) The Borrower covenants and agrees to pay to the Trustee as a Repayment Installment on the loan to the Borrower pursuant to Section 4.1 hereof, on each date provided in or pursuant to the Indenture for the payment of principal (whether at maturity or upon redemption or acceleration) of, premium, if any, and/or interest on the Bonds, until the principal of, premium, if any, and interest on the Bonds shall have been fully paid or provision for the payment thereof shall have been made in accordance with the Indenture, in immediately available funds, for deposit in the Bond Fund, a sum equal to the amount then payable as principal (whether at maturity or upon redemption or acceleration), premium, if any, and interest upon the Bonds as provided in the Indenture. Each payment required to be made pursuant to this Section 4.2(a) shall at all times be sufficient to pay the total amount of interest and principal (whether at maturity or upon redemption or acceleration) and premium, if any, then payable on the Bonds; provided that any amount held by the Trustee in the Bond Fund on any due date for a Repayment Installment hereunder shall be credited against the installment due on such date to the extent available for such purpose; and provided further that, subject to the provisions of this paragraph, if at any time the amounts held by the Trustee in the Bond Fund are sufficient to pay all of the principal of and interest and premium, if any, on the Bonds as such payments become due, the Borrower shall be relieved of any obligation to make any further payments under the provisions of this Section. Notwithstanding the foregoing, if on any date the amount held by the Trustee in the Bond Fund is insufficient to make any required payments of principal of (whether at maturity or upon redemption or acceleration) and interest and premium, if any, on the Bonds as such payments become due, the Borrower shall forthwith pay such deficiency as a Repayment Installment hereunder. The obligation of the Borrower to make any payment under this Section 4.2(a) with respect to the Bonds shall be deemed to have been satisfied to the extent of any corresponding payment by the Credit Provider under the Credit Facility, if any, for such Bonds. (b) The Borrower also agrees to pay to the Trustee until the principal of, premium, if any, and interest on the Bonds shall have been fully paid or provision for the I DOCSSFI :645020.13 5 payment thereof shall have been made as required by the Indenture, (i) the annual fee of the Trustee for its ordinary services rendered as trustee, and its ordinary expenses incurred under the Indenture, as and when the same become due, (ii) the reasonable fees, charges and expenses of the Trustee, the Registrar and the reasonable fees of any paying agent on the Bonds as provided in the Indenture, as and when the same become due, (iii) the reasonable fees, charges and expenses of the Trustee for the necessary extraordinary services rendered by it and extraordinary expenses incurred by it under the Indenture, as and when the same become due. The Borrower shall also pay the cost of printing any Bonds required to be furnished by the City. (c) The Borrower also agrees to pay, within 60 days after receipt of request for payment thereof, all expenses required to be paid by the Borrower under the tenDS of the bond purchase agreement executed by it in connection with the sale of the Bonds, and all reasonable expenses of the City related to the financing of the Project which are not otherwise required to be paid by the Borrower under the terms of this Agreement, including City staff costs at then-applicable full cost recovery rates, without offset; provided that the City shall have obtained the prior written approval of the Authorized Borrower Representative for any expenditures other than those provided for herein or in said bond purchase agreement. The Borrower also agrees to pay to the City within five days following the Issue Date an issuance fee equal to [0.25% of the par amount of the Bonds]. (d) The Borrower hereby agrees to provide or cause to be provided in immediately available funds, for deposit into the Bond Purchase Fund maintained by the Tender Agent, all amounts necessary to purchase Bonds tendered for purchase in accordance with Sections 2.02(a) and 2.02(b) of the Indenture. (e) In the event the Borrower should fail to make any of the payments required by subsections (a) through (d) of this Section, such payments shall continue as obligations of the Borrower until such amounts shall have been fully paid. The Borrower agrees to pay such amounts, together with interest thereon until paid, to the extent pennitted by law, at the rate of one percent (1 %) per annum over the rate borne by any Bonds in respect of which such payments are required to be made pursuant to said subsection (a), and one percent (1 %) per annum over the average rate then borne by the Bonds as to all other payments. Interest on overdue payments required under subsection (a) or (d) above shall be paid to Bondholders as provided in the Indenture. (f) Upon written request of the Trustee, the Borrower shall pay any Repayment Installment directly to the Paying Agent. (g) Any unpaid obligation of the Borrower under subsections(b) through ( e) of this Section 4.2 shall survive the payment and discharge of the Bonds and the tennination of this Agreement. SECTION 4.3 UNCONDITIONAL OBLIGATION. The obligations of the Borrower to make the payments required by Section 4.2 hereof and to perfonn and observe the other agreements on its part contained herein shall be absolute and unconditional, irrespective of any defense or any rights of set-off, recoupment or counterclaim it might otherwise have against ;:J I 8 DOCSSFI :645020.13 6 the City, and during the tenn of this Agreement, the Borrower shall pay absolutely net the payments to be made on account of the loan as prescribed in Section 4.2 and all other payments required hereunder, free of any deductions and without abatement, diminution or set-off. Until such time as the principal of, premium, if any, and interest on the Bonds shall have been fully paid, or provision for the payment thereof shall have been made as required by the Indenture, the Borrower (i) will not suspend or discontinue any payments provided for in Section 4.2 hereof; (ii) will perfonn and observe all of its other covenants contained in this Agreement; and (iii) will not tenninate this Agreement for any cause, including, without limitation, the occurrence of any act or circumstances that may constitute failure of consideration, destruction of or damage to the Project, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State of California or any political subdivision of either of these, or any failure of the City or the Trustee to perfonn and observe any covenant, whether express or implied, or any duty, liability or obligation arising out of or connected with this Agreement or the Indenture, except to the extent pennitted by this Agreement. SECTION 4.4 ASSIGNMENT OF CITY'S RIGHTS. As security for the payment of the Bonds, the City will assign to the Trustee the City's rights, but not its obligations, under this Agreement, including the right to receive payments hereunder (except (i) the rights of the City to receive notices under this Agreement, (ii) the right of the City to receive certain payments, if any, with respect to fees, expenses and indemnification and certain other purposes under Sections 4.2(c), 4.2(e), 6.3, 8.2 and 8.3 hereof, and (iii) the right of the City to give approvals or consents pursuant to this Agreement) and the City hereby directs the Borrower to make the payments required hereunder (except such payments for fees, expenses and indemnification) directly to the Trustee. The Borrower hereby assents to such assignment and agrees to pay the Repayment Installments directly to the Trustee (subject to the provisions of Section 4.2(f)) without defense or set-off by reason of any dispute between the Borrower and the City or the Trustee. SECTION 4.5 AMOUNTS REMAINING IN FUNDS. It is agreed by the parties hereto that after payment in full of (i) the Bonds, or after provision for such payment shall have been made as provided in the Indenture, (ii) the fees and expenses of the City in accordance with this Agreement, (iii) the fees, charges and expenses of the Trustee, the Registrar and Paying Agents in accordance with the Indenture and this Agreement and (iv) all other amounts required to be paid under this Agreement and the Indenture, any amounts remaining in any fund held by the Trustee under the Indenture shall belong, subject to the requirements of Section 6.06 of the Indenture, to the Borrower and be paid to the Borrower by the Trustee. SECTION 4.6 CREDIT FACILITY. [No initial Credit Facility shall be provided with respect to the Bonds.] The Borrower may provide and subsequently terminate or remove a Credit Facility with respect to the Bonds pursuant to the provisions of Section 5.07 of the Indenture; provided, however, that, except in connection with the redemption of Bonds, the Borrower shall not intentionally cause the tennination or substitution of any Credit Facility with respect to Bonds during a Tenn Rate Period or a Variable Term Segment with respect to such Bonds. Not less than twenty-five days prior to the termination, removal, substitution or delivery of any Credit Facility with respect to the Bonds, the Borrower shall mail written notice of such termination, removal, substitution or delivery to the Trustee. Not less than fifteen days prior to DOCSSFI :645020.13 7 -I the delivery of any substitute or new Credit Facility for the Bonds, the Borrower shall mail written notice of such substitution or delivery to each Rating Agency. ARTICLE V SPECIAL COVENANTS AND AGREEMENTS SECTION 5.1 RIGHT OF ACCESS TO THE PROJECT. The Borrower agrees that during the tenn of this Agreement the City, the Trustee and the duly authorized agents of either of them shall have the right at all reasonable times during nonnal business hours to enter upon the site of the Project described in Exhibit A hereto to examine and inspect such Project; provided, however, that this right is subject to federal and State of California laws and regulations applicable to such site. The rights of access hereby reserved to the City and the Trustee may be exercised only after such agent shall have executed release of liability (which release shall not limit any of the Borrower's obligations hereunder) and secrecy agreements if requested by the Borrower in the fonn then currently used by the Borrower, and nothing contained in this Section or in any other provision of this Agreement shall be construed to entitle the City or the Trustee to any infonnation or inspection involving the confidential know-how of the Borrower. SECTION 5.2 THE BORROWER'S MAINTENANCE OF ITS EXISTENCE: ASSIGNMENTS. (a) The Borrower agrees that during the tenn of this Agreement it will maintain its corporate existence in good standing and will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another corporation or pennit one or more other corporations to consolidate or merge into it; provided, that the Borrower may, without violating the covenants contained in this Section, consolidate with or merge into another corporation, or pennit one or more other corporations to consolidate with or merge into it, or sell or otherwise transfer to another corporation all or substantially all of its assets and thereafter dissolve, provided that (1) either (A) the Borrower is the surviving corporation or (B) the surviving, resulting or transferee corporation, as the case may be, (i) assumes and agrees in writing to pay and perfonn all of the obligations of the Borrower hereunder and (ii) qualifies to do business in the State of California; and (2) the Borrower shall deliver to the Trustee an Opinion of Bond Counsel to the effect that such consolidation, merger or transfer and dissolution does not in and of itself adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds. (b) With the prior written consent of the City (which consent shall not be unreasonably withheld), the rights and obligations of the Borrower under this Agreement may be assigned by the Borrower, in whole or in part, subject, however, to each of the following conditions: (i) No assignment (other than pursuant to a merger, consolidation or combination described in Section 5.2(a» shall relieve the Borrower from primary liability for any of its obligations hereunder, and in the event of any assignment not pursuant to Section 5.2(a), the Borrower shall continue to remain primarily liable for the payments specified in Section 4.2 hereof and for performance and observance of the other agreements on its part herein provided to be perfonned and observed by it. -I {pO DOCSSF 1:645020.13 8 (ii) Any assignment from the Borrower shall retain for the Borrower such rights and interests as will pennit it to perfonn its obligations under this Agreement, and any assignee from the Borrower shall assume the obligations of the Borrower hereunder to the extent of the interest assigned. (iii) The Borrower shall, within thirty days after delivery of such assignment, furnish or cause to be furnished to the City and the Trustee a true and complete copy of each such assignment together with an instrument of assumption. (iv) The Borrower shall cause to be delivered to the City and the Trustee an Opinion of Bond Counsel that such assignment will not, in and of itself, result in the interest on the Bonds being determined to be includable in the gross income for federal income tax purposes of the owners thereof (other than a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code or Section 1O3(b)(13) of the 1954 Code). SECTION 5.3 RECORDS AND FINANCIAL STATEMENTS OF BORROWER. The Borrower agrees (a) to keep and maintain full and accurate accounts and records of its operations in accordance with generally accepted accounting principles, (b) to penn it the Trustee for itself or on behalf of the holders of the Bonds and its designated officers, employees, agents and representatives to have access to such accounts and records and to make examinations thereof at all reasonable times and (c) upon request of the Trustee, to provide the Trustee with the Borrower's most recent audited financial statements. SECTION 5.4 MAINTENANCE AND REPAIR. The Borrower agrees that as long as it owns the Project it will (i) maintain, or cause to be maintained, the Project in as reasonably safe condition as its operations shall pennit and (ii) maintain, or cause to be maintained, the Project in good repair and in good operating condition, ordinary wear and tear excepted, making from time to time all necessary repairs thereto and renewals and replacements thereof. SECTION 5.5 QUALIFICATION IN CALIFORNIA. The Borrower agrees that throughout the term of this Agreement it, or any successor or assignee as pennitted by Section 5.2, will be qualified to do business in the State ofCalifomia. SECTION 5.6 TAX EXEMPT STATUS OF BONDS. (a) It is the intention of the parties hereto that interest on the Bonds shall be and remain excluded from gross income for federal income tax purposes. To that end, the covenants and agreements of the City and the Borrower in this Section and in the Tax Certificate are for the benefit of the Trustee and each and every person who at any time will be a holder of the Bonds. Without limiting the generality of the foregoing, the Borrower and the City agree that there shall be paid from time to time all amounts required to be rebated to the United States pursuant to the Rebate Requirement. This covenant shall survive payment in full or defeasance of the Bonds. The Borrower specifically covenants to payor cause to be paid for and on behalf of the City to the United States at the times and in the amounts detennined under Section 6.06 of the Indenture the Rebate Requirement as described in the Tax Certificate and the Indenture. The City shall not be liable to make any such payment except from funds provided by the Borrower for such purpose. DOCSSFI:645020.13 9 ;}-/Col (b) The City covenants and agrees that it has not taken and will not take any action which results in interest to be paid on the Bonds being included in gross income of the holders of the Bonds for federal income tax purposes, and the Borrower covenants and agrees that it has not taken or pennitted to be taken and will not take or pennit to be taken any action which will cause the interest on the Bonds to become includable in gross income for federal income tax purposes; provided that neither the Borrower nor the City shall have violated these covenants if interest on any of the Bonds becomes taxable to a person solely because such person is a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code or Section 103(b)(13) of the 1954 Code; and provided further that none of the covenants and agreements herein contained shall require either the Borrower or the City to enter an appearance or intervene in any administrative, legislative or judicial proceeding in connection with any changes in applicable laws, rules or regulations or in connection with any decisions of any court or administrative agency or other governmental body affecting the taxation of interest on the Bonds. The Borrower acknowledges having read Section 6.06 of the Indenture and agrees to perfonn all duties imposed on it by such Section, by this Section and by the Tax Certificate. Insofar as Section 6.06 of the Indenture and the Tax Certificate Impose duties and responsibilities on the City or the Borrower, they are specifically incorporated herein by reference. (c) Notwithstanding any provision of this Section 5.6 or Section 6.06 of the Indenture, if the Borrower shall provide to the City and the Trustee an Opinion of Bond Counsel to the effect that any specified action required under this Section 5.6 and Section 6.06 of the Indenture is no longer required or that some further or different action is required to maintain the exclusion from federal income tax of interest on the Bonds, the Borrower, the Trustee and the City may conclusively rely on such opinion in complying with the requirements of this Section, and the covenants set forth in this Section 5.6 shall be deemed to be modified to that extent. SECTION 5.7 RA TINGS: NOTICE OF RATE PERIODS. The Borrower agrees to use its best efforts to maintain at least two ratings on the Bonds. The Borrower shall designate and give timely written notice to the Trustee as required by the Indenture prior to any change in Rate Periods for the Bonds. In addition, if the Borrower shall elect to change Rate Periods in accordance with the Indenture and the Bonds under circumstances requiring the delivery of an Opinion of Bond Counsel, the Borrower shall deliver such opinion to the Trustee concurrently with the giving of notice with respect thereto, and no such change shall be effective without an Opinion of Bond Counsel to the effect that such change is authorized or permitted by the Indenture and the Law and will not adversely affect the Tax-Exempt status of the interest on the Bonds. SECTION 5.8 REMARKETING OF THE BONDS. (a) The Borrower agrees to perform all obligations and duties required of it by the Indenture with respect to the remarketing of the Bonds, and, to appoint as set forth below a Remarketing Agent and a Tender Agent meeting the qualifications and otherwise meeting the requirements set forth in this Section 5.8. (b) Tender Agent. d--lfo~ DOCSSF 1:645020.] 3 10 (i) Appointment and Duties: In order to carry out the duties and obligations of the Tender Agent contained in the Indenture, the Borrower shall appoint a Tender Agent or Tender Agents in order to carry out such duties and obligations, subject to the conditions set forth below. Each Tender Agent shall designate to the Trustee its Principal Office (which designation shall be delivered to the Marketing Parties, in addition to the other parties so required in this paragraph) and signify its acceptance of the duties and obligations imposed upon it under the Indenture by entering into a Tender Agreement with the Borrower and such other parties as shall be appropriate, which may be combined with a Remarketing Agreement into a single document, delivered to the City, the Trustee, the Borrower and the Remarketing Agent, under which each Tender Agent shall agree, particularly (but without limitation): (A) to perfonn the duties and comply with the requirements imposed upon it by the Tender Agreement, the Indenture and this Agreement; and (B) to keep such books and records with respect to its activities as Tender Agent as shall be consistent with prudent industry practice and to make such books and records available for inspection by the City, the Trustee and the Borrower at all reasonable times. (ii) Qualifications: Each Tender Agent shall be a financial institution organized and doing business under the laws of the United States or of a state thereof, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least Fifty Million Dollars ($50,000,000), and subject to supervision or examination by federal or state authority. If such 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 purposes of this Section 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. (c) Remarketing Agent. In order to carry out the duties and obligations contained in the Indenture, the Borrower, by an instrument in writing (which may be the Remarketing Agreement) signed by an Authorized Borrower Representative, shall select a Remarketing Agent or Remarketing Agents for Bonds issued bearing interest at or converted to a Variable Term Rate, subject to the conditions set forth below. Each Remarketing Agent shall designate to the Trustee its Principal Office (which designation shall be delivered to the Marketing Parties, in addition to the other parties so required in this paragraph) and signify its acceptance of the duties and obligations imposed upon it under the Indenture by a written instrument of acceptance (which may be the execution of a Remarketing Agreement) delivered to the City, the Trustee and the Borrower under which each Remarketing Agent shall agree, particularly (but without limitation): (i) to perfonn the duties and comply with the requirements imposed upon it by the Remarketing Agreement, the Indenture and this Agreement; and (ii) to keep such books and records with respect to its activities as Remarketing Agent as shall be consistent with prudent industry practice and to make such books and records available for inspection by the City, the Trustee and the Borrower at all reasonable times. (d) Remarketing Agreement. In order to provide for the remarketing of the Bonds, the Borrower shall enter into a Remarketing Agreement or Remarketing Agreements with each Remarketing Agent and such other parties as shall be appropriate, which may be combined d -) to?;; DOCSSFI :645020.13 11 with a Tender Agreement into a single document. Each Remarketing Agreement shall include the following: (i) a requirement that such Remarketing Agreement shall not be tenninated by the Borrower without cause for a period of at least six months after the effective date thereof; and (ii) a statement to the effect that the Remarketing Agent is not acting in an agency capacity with respect to the Borrower in establishing interest rates and Rate Periods as described in Section 2.01 of the Indenture, but is acting as agent of the City pursuant to the Law with respect to such functions. SECTION 5.9 [PROVISIONS RELATING TO AUCTION BONDS] (a) Appointment of Auction Agent: Qualifications of Auction Agent: Resignation: Removal. U.S. Bank, N.A. is hereby appointed as the initial Auction Agent. On or before the effective date of a subsequent adjustment to an Auction Rate Period, or upon the resignation or removal of the Auction Agent, an Auction Agent shall be appointed by the Borrower. The Auction Agent shall evidence its acceptance of such appointment by entering into an Auction Agent Agreement with the Borrower. The Auction Agent shall be (a) a bank or trust company duly organized under the laws of the United States of America or any state or territory thereof and having a combined capital stock, surplus and undivided profits of at least $30,000,000 or (b) a member of the National Association of Securities Dealers, Inc., having a capitalization of at least $30,000,000 and, in either case, authorized by law to perfonn all the duties imposed upon it under the Auction Agent Agreement. The Auction Agent may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least 90 days' notice to the Trustee, the Borrower, the Market Agent and the Issuer, provided, that if the Auction Agent has not been compensated for its services, following demand for such compensation, for a period of 60 days, the Auction Agent may resign upon 30 days' notice to the Trustee, the Borrower, the Auction Agent and the Issuer. The Auction Agent may be removed at any time by the Borrower upon at least 90 days' notice; provided that, the Borrower shall have entered into an agreement in substantially the fonn of the Auction Agent Agreement with a successor Auction Agent. (b) Appointment of Market Agent. r 1 is hereby appointed as the initial Market Agent. On or before the effective date of a subsequent Conversion to an Auction Period, or upon the resignation or removal of the Market Agent, a new Market Agent shall be appointed by the Borrower. Any such Market Agent shall be a Broker-Dealer, and shall signify its acceptance of the duties and obligations imposed on it hereunder as Market Agent by the execution of the Broker-Dealer Agreement. The Market Agent may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least 45 days' notice to the Trustee, the Borrower, the Auction Agent and the Issuer. The Market Agent may be removed at any time by the Borrower upon at least 45 days' notice; provided that, the Borrower shall have entered into an agreement in substantially the fonn of the Broker-Dealer Agreement with a successor Market Agent. During an Auction Period, all references in this Indenture to the Remarketing Agent shall, to the extent not inconsistent with the rights, duties and obligations of the Market Agent per se, be deemed to refer to the Market Agent. The Market Agent shall designate its Principal Office in writing to the Borrower, the City, the Trustee and each other Marketing Party. 12 ~~-I ~ ~ DOCSSF 1 :645020.13 (c) Several Capacities. Anything herein to the contrary notwithstanding, the same entity may serve hereunder as the Trustee, the Paying Agent or a Co-Paying Agent, the Bond Registrar, the Tender Agent, the Auction Agent, the Remarketing Agent and the Market Agent, and in any combination of such capacities to the extent pennitted by law. Any such entity may in good faith buy, sell, own, hold and deal in any of the Bonds and may join in any action which any Bondholders may be entitled to take with like effect as if such entity were not appointed to act in such capacity under the Indenture. SECTION 5.10 NOTICES TO TRUSTEE AND CITY. The Borrower hereby agrees to' provide the Trustee and the City with notice of any event of which it has knowledge which, with the passage of time or the giving of notice, would be an Event of Default, such notice to include a description of the nature of such event and what steps are being taken to remedy such Event of Default. SECTION 5.11 CONTINUING DISCLOSURE. The Borrower hereby covenants and agrees, upon the adjustment of the Rate Period for the Bonds to a Tenn Rate Period pursuant to Section 2.0 1 (c)(iv) of the Indenture and the remarketing of such Bonds in accordance with the Indenture, to comply with the continuing disclosure requirements for the Bonds as promulgated under Rule 15c2-12, as it may from time to time hereafter be amended or supplemented. Notwithstanding any other provision of this Agreement, failure of the Borrower to comply with the requirements of Rule 15c2-12 applicable to the Bonds, as it may from time to time hereafter be amended or supplemented, shall not be considered an Event of Default hereunder or under the Indenture; however, any Bondholder or beneficial owner of any Bonds may take such actions as may be necessary and appropriate, including seeking mandate or specific perfonnance by court order, to cause the Borrower to comply with its obligations pursuant to this Section 5.11. ARTICLE VI EVENTS OF DEF AUL T AND REMEDIES SECTION 6.1 EVENTS OF DEF AUL T. Anyone of the following which occurs and continues shall constitute an Event of Default pursuant to this Agreement: (a) failure by the Borrower to pay any amounts required to be paid under Section 4.2(a) or 4.2(d) hereof at the times required to avoid causing an Event of Default pursuant to the Indenture; or (b) failure of the Borrower to observe and perfonn any covenant, condition or agreement on its part required to be observed or perfonned by this Agreement, other than making the payments referred to in (a) above, which continues for a period of 60 days after written notice, which notice shall specify such failure and request that it be remedied, given to the Borrower by the City or the Trustee, unless the City and the Trustee shall agree in writing to an extension of such time; provided, however, that if the failure stated in the notice cannot be corrected within such period, the City and the Trustee will not unreasonably withhold their consent to an extension of such DOCSSFI :645020.13 13 ;)- ---j time if corrective action is instituted within such period and diligently pursued until the default is corrected; or (c) an Act of Bankruptcy of the Borrower; or (d) a default under any Credit Facility if the Credit Provider notifies the Trustee in writing that such default shall be treated as an Event of Default hereunder. The provisions of subsection (b) of this Section are subject to the limitation that the Borrower shall not be deemed in default if and so long as the Borrower is unable to carry out its agreements hereunder by reason of strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the government of the United States or of the State of California or any of their departments, agencies, or officials, or any civil or military authority; insurrections, riots, epidemics, landslides; lightning; earthquake; fire; hurricanes; stonns; floods; washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions; breakage or accident to machinery, transmission pipes or canals; partial or entire failure of utilities; or any other cause or event not reasonably within the control of the Borrower; it being agreed that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of the Borrower, and the Borrower shall not be required to make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is, in the judgment of the Borrower, unfavorable to the Borrower. This limitation shall not apply to any default under subsections (a), (c) or (d) of this Section. SECTION 6.2 REMEDIES ON DEF AUL T. Whenever any Event of Default shall have occurred and shall continue, the following remedies may be pursued: (a) The Trustee may, and upon the written request of any Credit Provider or the holders of not less than 25% in aggregate principal amount of Bonds then outstanding, shall, by notice in writing delivered to the Borrower with copies of such notice being sent to the City and each Credit Provider, declare the unpaid balance of the loan payable under Section 4.2(a) of this Agreement and the interest accrued thereon to be immediately due and payable and such principal and interest shall thereupon become and be immediately due and payable. Upon any such acceleration, the Bonds shall be subject to mandatory redemption as provided in Section 4.01 (b )(3) of the Indenture. After any such declaration of acceleration, the Trustee shall immediately take such actions as necessary to realize moneys under any Credit Facility. (b) The Trustee shall have access to and the right to inspect, examine and make copies of the books and records and any and all accounts, data and federal income tax and other tax returns of the Borrower. (c) The City or the Trustee may take whatever action at law or in equity as may be necessary or desirable to collect the payments and other amounts then due and thereafter to become due or to enforce performance and observance of any obligation, agreement or covenant of the Borrower under this Agreement. The provisions of clause (a) of the preceding paragraph, however, are subject to J I I I DOCSSF 1:645020.13 14 d øc I (fí.p the condition that if, at any time after the loan shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, there shall have been deposited with the Trustee a sum sufficient (together with any amounts held in the Bond Fund) to pay all the principal of the Bonds matured prior to such declaration and all matured installments of interest (if any) upon all the Bonds, with interest on such overdue installments of principal as provided herein, and the reasonable expenses of the Trustee, and any and all other defaults 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 holders of at least a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the City and to the Trustee, may, on behalf of the holders of all the Bonds, rescind and annul such declaration and its consequences and waive such default; provided that 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; and provided further that there shall not be rescinded or annulled any such declaration which follows an event described in Section 6.1 (d) without the written consent of the Credit Provider. In case the Trustee or the City shall have proceeded to enforce its rights under this Agreement and such proceedings shall have been discontinued or abandoned for any reason or shall have been detennined adversely to the Trustee or the City, then, and in every such case, the Borrower, the Trustee and the City shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Borrower, the Trustee and the City shall continue as though no such action had been taken (provided, however, that any settlement of such proceedings duly entered into by the City, the Trustee or the Borrower shall not be disturbed by reason of this provision). In case the Borrower shall fail forthwith to pay amounts due by reason of this Section 6.2 upon demand of the Trustee, the Trustee shall be entitled and empowered to institute any action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Borrower and collect in the manner provided by law the moneys adjudged or decreed to be payable. In case proceedings shall be pending for the bankruptcy or for the reorganization of the Borrower under the federal bankruptcy laws or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Borrower or in the case of any other similar judicial proceedings relative to the Borrower, or the creditors or property of the Borrower, then the Trustee shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount owing and unpaid pursuant to this Agreement and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee allowed in such judicial proceedings relative to the Borrower, its creditors or its property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute such amounts as provided in the Indenture after the deduction of its charges and expenses. Any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized to make such payments to the Trustee, and to pay to the Trustee any amount 15 ;;;.--lro7 DOCSSFI :645020.13 due it for compensation and expenses, including expenses and fees of counsel incurred by it up to the date of such distribution. SECTION 6.3 AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. In the event the Borrower should default under any of the provisions of this Agreement and the City or the Trustee should employ attorneys or incur other expenses for the collection of the payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of the Borrower herein contained, the Borrower agrees to pay to the City or the Trustee the reasonable fees of such attorneys and such other expenses so incurred by the City or the Trustee. SECTION 6.4 NO REMEDY EXCLUSIVE. No remedy herein conferred upon or reserved to the City or the Trustee is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission 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 thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the City or the Trustee to exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. Such rights and remedies as are given the City hereunder shall also extend to the Trustee, and the Trustee and the holders of the Bonds shall be deemed third party beneficiaries of all covenants and agreements herein contained. SECTION 6.5 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any agreement or covenant contained in this Agreement should be breached by the Borrower and thereafter waived by the City or the Trustee, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. ARTICLE VII PREP A YMENT SECTION 7.1 REDEMPTION OF BONDS WITH PREP A YMENT MONEYS. By virtue of the assignment of certain of the rights of the City under this Agreement to the Trustee as is provided in Section 4.4 hereof, the Borrower agrees to and shall pay directly to the Trustee any amount permitted or required to be paid by it under this Article VII. The Trustee shall use the moneys so paid to it by the Borrower to effect redemption of the Bonds in accordance with Article IV of the Indenture on the date specified for such redemption pursuant to Section 7.5 hereof. SECTION 7.2 OPTIONS TO PREPAY INSTALLMENTS. The Borrower shall have the option to prepay the amounts payable under Section 4.2 hereof, in whole or in part, by paying to the Trustee, for deposit in the Bond Fund, the amount set forth in Section 7.4 hereof, under the circumstances set forth in Section 4.01 (a) of the Indenture; provided, however, that if any event specified in Section 4.01 (a)(1)(A) through (D) of the Indenture gives rise to the Borrower's exercise of its option to prepay such amounts payable hereunder, the amount of such DOCSSFI :645020.13 16 ;)- I ~ ~ loan payment prepaid shall not exceed the original cost of the portion of the Project affected by such event. SECTION 7.3 MANDATORY PREPAYMENT. (a) The Borrower shall have and hereby accepts the obligation to prepay Repayment Installments to the extent mandatory redemption of the Bonds is required pursuant to Section 4.01(b) of the Indenture. The Borrower shall satisfy its obligation hereunder by prepaying such Repayment Installments within one hundred eighty (180) days after the occurrence of any event set forth in paragraphs (I) through (3) of said Section 4.01(b) giving rise to such required prepayment, and immediately upon the occurrence of any event set forth in paragraph (3) thereof giving rise to such required prepayment. The amount payable by the Borrower in the event of a prepayment required by this Section shall be detennined as set forth in Section 7.4 and shall be deposited in the Bond Fund. SECTION 7.4 AMOUNT OF PREP A YMENT. In the case of a prepayment of the entire amount due hereunder pursuant to Section 7.2 or 7.3 hereof, the amount to be paid shall be a sum sufficient, together with other funds and the yield on any securities deposited with the Trustee and available for such purpose, to pay (1) the principal of all Bonds outstanding on the redemption date specified in the notice of redemption, plus interest accrued and to accrue to the payment or redemption date of the Bonds, plus premium, if any, pursuant to the Indenture, (2) all reasonable and necessary fees and expenses of the City, the Trustee, the Registrar, the Tender Agent and any Paying Agent accrued and to accrue through final payment of the Bonds, and (3) all other liabilities of the Borrower accrued and to accrue under this Agreement. In the case of partial prepayment of the Repayment Installments, the amount payable shall be a sum sufficient, together with other funds deposited with the Trustee and available for such purpose, to pay the principal amount of and premium, if any, and accrued interest on the Bonds to be redeemed, as provided in the Indenture, and to pay expenses of redemption of such Bonds. SECTION 7.5 NOTICE OF PREP A YMENT. The Borrower shall give forty- five days' prior written notice to the City and the Trustee specifying the date upon which any prepayment pursuant to this Article VII will be made. If, in the case of a mandatory prepayment pursuant to Section 7.3 hereof, the Borrower fails to give such notice of a prepayment required by this Section 7.5, such notice may be given by the City or by any holder or holders of ten percent (10%) or more in aggregate principal amount of the Bonds Outstanding, and shall be given by the Trustee, but solely at the times and under the circumstances provided in Section 4.01(b) of the Indenture. The City and the Trustee, at the request of the Borrower or any such Bondholder or Bondholders, shall forthwith take all steps necessary under the applicable provisions of the Indenture (except that the City shall not be required to make payment of any money required for such redemption) to effect redemption of all or part of the then outstanding Bonds, as the case may be, on the earliest practicable date thereafter on which such redemption may be made under applicable provisions of the Indenture. Notwithstanding anything to the contrary in this Agreement, each notice contemplated in this Section 7.5 that is given with respect to an optional prepayment pursuant to Section 7.2 hereof may state that it is subject to and conditional upon receipt by the Trustee on or prior to the proposed prepayment date of amounts sufficient to effect such prepayment and, if a - DOCSSFI :645020.13 17 notice so states, such notice shall be of no force and effect and the prepayment need not be made and the Repayment Installments will not become due and payable on the proposed prepayment date unless such amounts are so received on or prior to the proposed prepayment date. ARTICLE VIII NON-LIABILITY OF CITY: EXPENSES: INDEMNIFICATION SECTION 8.1 NON-LIABILITY OF CITY. The City shall not be obligated to pay the principal of, or premium, if any, or interest on the Bonds, or to discharge any other financial liability (including but not limited to fmancial liability under Section 5.6 hereof) in connection herewith, except from, and to the extent of, Revenues. The Borrower hereby acknowledges that the City's sole source of moneys to repay the Bonds will be provided by the payments made by the Borrower pursuant to this Agreement (excluding payments to the City or the Trustee pursuant to Section 4.2(b), 4.2(c), 4.2(e), 5.6, 6.3, 8.2 and 8.3 of this Agreement), together with other Revenues, including investment income on certain funds and accounts held by the Trustee under the Indenture, and hereby agrees that if the payments to be made hereunder shall ever prove insufficient to pay all principal of, and premium, if any, and interest on the Bonds as the same shall become due (whether by maturity, redemption, acceleration or otherwise), then upon notice from the Trustee, the Borrower shall pay such amounts as are required from time to time to prevent any deficiency or default in the payment of such principal, premium or interest, including, but not limited to, any deficiency caused by acts, omissions, nonfeasance or malfeasance on the part of the Trustee, the Borrower, the City or any third party. SECTION 8.2 EXPENSES. The Borrower covenants and agrees to pay within thirty (30) days after billing therefor and to indemnify the City and the Trustee against all reasonable costs and charges, including fees and disbursements of attorneys, accountants, consultants, including financial consultants, engineers and other experts, and City staff costs at then-applicable full cost recovery rates, without offset, except for such costs incurred in acts of willful misconduct by the City, its elected officials, employees or agents, incurred in connection with this Agreement, the Bonds or the Indenture. The City shall notify the Borrower in writing prior to engaging any professional or expert for which the City plans to bill the Borrower. SECTION 8.3 INDEMNIFICATION. The Borrower releases the City and the Trustee from, and covenants and agrees that neither the City nor the Trustee shall be liable for, and covenants and agrees, to the extent pennitted by law, to indemnify, defend and hold harmless the City and the Trustee and their officers, elected officials, employees and agents from and against, any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from or in any way connected with (1) the Project, or the conditions, occupancy, use, possession, conduct or management of, or work done in or about, or from the planning, design, acquisition, installation or construction of the Project or any part thereof; (2) the issuance of any Bonds or any certifications, covenants or representations made in connection therewith and the carrying out of any of the transactions contemplated by the Bonds, the Indenture and this Agreement; (3) the Trustee's acceptance or administration of the trusts under the Indenture; (4) the exercise or perfonnance of any of the City's or Trustee's powers or duties under the Indenture or this Agreement; or (5) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to 18 ;)-/70 DOCSSFI :645020.13 state a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, in any official statement or other offering circular utilized by the City or any underwriter or placement agent in connection with the sale of any Bonds; provided that such indemnity shall not be required for damages that result from sole gross negligence or willful misconduct on the part of the party seeking such indemnity. The indemnity of the Trustee required by this Section shall be only to the extent that any loss sustained by the Trustee exceeds the net proceeds the Trustee receives from any insurance carried with respect to the loss sustained. The Borrower further covenants and agrees, to the extent pennitted by law, to payor to reimburse the City and the Trustee and their officers, employees and agents for any and all reasonable costs, including but not limited to attorneys fees, liabilities or expenses incurred in connection with investigating, defending against or otherwise in connection with any such losses, claims, damages, liabilities, expenses or actions, except to the extent that the same arise out of the negligence or willful misconduct of the PartY claiming such payment or reimbursement. The provisions of this Section shall survive the retirement of the Bonds or resignation or removal of the Trustee. ARTICLE IX MISCELLANEOUS SECTION 9.1 NOTICES. All notices, certificates or other communications shall be deemed sufficiently given on the second day following the day on which the same have been mailed by first class mail, postage prepaid, addressed to the City, the Borrower or the Trustee, as the case may be, as set forth in the Indenture. A duplicate copy of each notice, certificate or other communication given hereunder by either the City or the Borrower to the other shall also be given to the Trustee. The City, the Borrower and the Trustee may, by notice given hereunder, designate any different addresses to which subsequent notices, certificates or other communications shall be sent. SECTION 9.2 SEVERABILITY. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions herein contained or render the same invalid, inoperative, or unenforceable to any extent whatever. SECTION 9.3 EXECUTION OF COUNTERPARTS. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument; provided, however, that for purposes of perfecting a security interest in this Agreement under Article 9 of the California Unifonn Commercial Code, only the counterpart delivered, pledged, and assigned to the Trustee shall be deemed the original. SECTION 9.4 AMENDMENTS. CHANGES AND MODIFICATIONS. Except as otherwise provided in this Agreement or the Indenture, subsequent to the initial issuance of Bonds and prior to their payment in full, or provision for such payment having been made as provided in the Indenture, this Agreement may not be effectively amended, changed, modified, altered or tenninated without the written consent of the Trustee. DOCSSF1:645020.13 19 a-I / SECTION 9.5 GOVERNING LAW. This Agreement shall be governed exclusively by and construed in accordance with the applicable laws of the State of California. SECTION 9.6 AUTHORIZED BORROWER REPRESENTATIVE. Whenever under the provisions of this Agreement the approval of the Borrower is required or the City or the Trustee is required to take some àction at the request of the Borrower, such approval or such request shall be given on behalf of the Borrower by an Authorized Borrower Representative, and the City and the Trustee shall be authorized to act on any such approval or request and neither party hereto shall have any complaint against the other or against the Trustee as a result of any such action taken. SECTION 9.7 TERM OF THE AGREEMENT. This Agreement shall be in full force and effect from the date hereof and shall continue in effect as long as any of the Bonds are outstanding or the Trustee holds any moneys under the Indenture, whichever is later; provided, however, that the rights of the Trustee and the City under Section 8.2 and 8.3 hereof shall survive the tennination of this Agreement, the retirement of the Bonds and the removal or resignation of the Trustee. All representations and certifications by the Borrower as to all matters affecting the Tax-Exempt status of the Bonds shall survive the tennination of this Agreement. SECTION 9.8 BINDING EFFECT. This Agreement shall inure to the benefit of and shall be binding upon the City, the Borrower, the Trustee and their respective successors and assigns; subject, however, to the limitations contained in Section 5.2 hereof. , DOCSSFl:645020.13 20 ~-/7 ~ IN WITNESS WHEREOF, the City of Chula Vista has caused this Agreement to be executed in its name and its seal to be hereunto affIXed and attested by its duly authorized officers, and San Diego Gas & Electric Company has caused this Agreement to be executed in its name and its seal to be hereunto affixed by its duly authorized officers, all as of the date first above written. CITY OF CHULA VISTA By Mayor [SEAL] Attest: City Clerk APPROVED AS TO FORM: ANN MOORE CITY ATTORNEY By [Title] SAN DIEGO GAS & ELECTRIC COMPANY By Terry M. Fleskes Vice President, Treasurer and Controller [SEAL] Attest: Catherine C. Lee Secretary ;;. - 173 DOCSSFI :645020.13 21 DOCSSF1:645020.I3 :;;t- 7 22 EXHIBIT A Description ofthe Project [TO COME] ;;-/75 DOCSSFI :645020.13 OH&S DRAFT 3/19/04 LOAN AGREEMENT Between CITY OF CHULA VISTA And SAN DIEGO GAS & ELECTRIC COMPANY Dated as of r I, 200~ Relating to City of Chula Vista Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) $ 200 Series - ;;. -/7& DOCSSF 1:645020.13 T ABLE OF CONTENTS Page PARTIES """"""""""""" """"""""""""'" """""""""" ............ """""""""" ............ ................. 1 PREAMBLES ............................................................................................................................... 1 ARTICLE I DEFINITIONS........................ ......................................................................... 2 SECTION 1.1 DEFINITION OF TERMS .................................................................. 2 SECTION 1.2 NUMBER AND GENDER.................................................................. 2 SECTION 1.3 ARTICLES, SECTIONS, ETC...... ........... ............. """"""""" ....... ..... 2 ARTICLE II REPRESENTATIONS..... ................................................... "..................,....... 2 SECTION 2.1 REPRESENTATIONS OF THE CITY............................................... 2 SECTION 2.2 REPRESENTATIONS OF THE BORROWER.................................. 3 ARTICLE III ISSUANCE OF THE BONDS; APPLICATION OF PROCEEDS................. 4 SECTION 3.1 AGREEMENT TO ISSUE BONDS; APPLICATION OF BOND PROCEEDS................. .................................... ........ ..... ........... 4 SECTION 3.2 INVESTMENT OF MONEYS IN FUNDS......................................... 4 SECTION 3.3 AMENDMENT OF DESCRIPTION OF THE PROJECT.................. 4 ARTICLE IV LOAN TO BORROWER; REPAYMENT PROVISIONS ............................. 5 SECTION 4.1 LOAN TO BORROWER .................................................................... 5 SECTION 4.2 REPA YMENT AND PAYMENT OF OTHER AMOUNTS PAYABLE ........................................................................................... 5 SECTION 4.3 UNCONDITIONAL OBLIGATION ................................................... 6 SECTION 4.4 ASSIGNMENT OF CITY'S RIGHTS ................................................ 7 SECTION 4.5 AMOUNTS REMAINING IN FUNDS .............................................. 7 SECTION 4.6 CREDIT FACILITY.......................... .................................................. 7 ARTICLE V SPECIAL COVENANTS AND AGREEMENTS .......................................... 7 SECTION 5.1 RIGHT OF ACCESS TO THE PROJECT .......................................... 8 SECTION 5.2 THE BORROWER'S MAINTENANCE OF ITS EXISTENCE; ASSIGNMENTS.......................................................... 8 SECTION 5.3 RECORDS AND FINANCIAL STATEMENTS OF BORROWER.......................................................................................9 SECTION 5.4 MAINTENANCE AND REPAIR ....................................................... 9 SECTION 5.5 QUALIFICATION IN CALIFORNIA ................................................9 SECTION 5.6 TAX EXEMPT STATUS OF BONDS................................................ 9 SECTION 5.7 RATINGS; NOTICE OF RATE PERIODS ...................................... 10 DOCSSF 1:645020.13 -1- eJ--)77 TABLE OF CONTENTS (continued) Page SECTION 5.8 REMARKETING OF THE BONDS ................................................. 10 SECTION 5.9 PROVISIONS RELATING TO AUCTION BONDS .......................12 SECTION 5.10 NOTICES TO TRUSTEE AND CITY.............................................. 12 SECTION 5.11 CONTINUING DISCLOSURE.......................... ............................... 13 ARTICLE VI EVENTS OF DEFAULT AND REMEDIES ................................................ 13 SECTION 6.1 EVENTS OF DEFAULT ................................................................... 13 SECTION 6.2 REMEDIES ON DEF AUL T.............................................................. 14 SECTION 6.3 AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES.... """ .................... ............................................ .............. 15 SECTION 6.4 NO REMEDY EXCLUSIVE............................................................. 16 SECTION 6.5 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER......... 16 ARTICLE VII PREPAYMENT """ """" ............ ...... .............. """ ........... .... ......... ................. 16 SECTION 7.1 REDEMPTION OF BONDS WITH PREP A YMENT MONEYS. "'" ..................... ...................... """"" """""""" ................ 16 SECTION 7.2 OPTIONS TO PREPAY INSTALLMENTS..................................... 16 SECTION 7.3 MANDATORY PREPAYMENT ...................................................... 16 SECTION 7.4 AMOUNT OF PREPAYMENT ........................................................ 17 SECTION 7.5 NOTICE OF PREPAYMENT ........................................................... 17 ARTICLE VIII NON-LIABILITY OF CITY; EXPENSES; INDEMNIFICATION """""'" 17 SECTION 8.1 NON-LIABILITY OF CITY............................................................. 17 SECTION 8.2 EXPENSES............ ..................... ""'" .......... ..................... ................. 18 SECTION 8.3 INDEMNIFICATION.. ...................................................................... 18 ARTICLE IX MISCELLANEOUS................................ ........................... ........................... 19 SECTION 9.1 NOTICES.............. ..................... ..... ......... ........ ..................... """""'" 19 SECTION 9.2 SEVERABILITY.. ..... ............ ......... .............. ......................... """""" 19 SECTION 9.3 EXECUTION OF COUNTERPARTS .............................................. 19 SECTION 9.4 AMENDMENTS, CHANGES AND MODIFICATIONS ................ 19 SECTION 9.5 GOVERNING LAW.. .............................. ............ ............... """"""'" 19 SECTION 9.6 AUTHORIZED BORROWER REPRESENTATIVE....................... 19 SECTION 9.7 TERM OF THE AGREEMENT ........................................................ 19 SECTION 9.8 BINDING EFFECT """"" ..................................... .......... """"""""" 20 DOCSSF 1 :645020.13 -11- ~-J7g TABLE OF CONTENTS (continued) Page TESTIMONIUM.......................................................................................................................... 20 SIGNATURES AND SEALS.................................. ..... ............................................................... 20 EXHIBIT A Description of the Project..... ............................................. """""" ........ ............. A-I DOCSSF 1:645020.13 -lll- p-/71 Item #;;;- COUNCIL INFORMATION Date: March 23, 2004 To: Mayor and Council Members From: Maria Kachadoorian, Director of FinancelTreasure~ SUBJECT: SDG&E Revenue Bonds - Appendix B (Multi-Mode Annex) The Council agenda packet for the meeting of March 23, 2004 includes Agenda Item No.2, which is requesting authorization to refund up to $686,400,000 in Industrial Development Refunding Revenue Bonds. The Council A genda packet distributed on March 1 9, 2004 included the I ndenture of Trust, which refers to two Appendices (Appendix A and Appendix B). Appendix A, the proposed form of Bond, is found at the end of the Indenture of Trust included with the Council Agenda Statement. Appendix B, the Multi-Mode Annex, attached, was not provided by Bond Counsel until late Friday and therefore not included in the packet. The Multi-Mode Annex, Appendix B, consists principally of the following: 1. Definitions 2. Mechanics for establishing the rate of interest on the Bonds, especially for variable interest rate periods. 3. Mechanics for tendering and remarketing Bonds, including auction rate provIsions 4. Optional redemption provisions, including redemption notice requirements 5. Provision and termination of credit facilities 6. Limitations upon amendments of the Indenture Appendix B, should be included in the bond documents which you are considering for approval tonight. c: City Manager City Attorney City Clerk OH&S DRAFT 3/12/04 APPENDIX B MULTI-MODE ANNEX Relating to City of Chula Vista Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) $ 20°- Series- DOCSSF1:714674.9 OH&S DRAFT 3/12/04 This Multi-Mode Annex shall for all purposes be deemed to be a part of the Indenture to which it is attached as an Appendix. ARTICLE I DEFINITIONS Section 1.01. Definitions. Unless otherwise defined, all terms in this Multi- Mode Annex shall have the meanings given thereto in the Indenture. In addition, the following terms as used in this Multi-Mode Annex shall have the following meanings, unless the context otherwise requires. "Agent Member" means a member of, or participant in, the Securities Depository who shall act on behalf of a Bidder. "All Hold Rate" means, as of any Auction Date, with respect to the Bonds 55% of the Auction Rate Index in effect on such Auction Date. "Auction" means each periodic implementation of the Auction Procedures. "Auction Rate" means for each series of the Bonds, the rate of interest to be borne by the Bonds of such series during each Auction Period determined in accordance with Section 3.03 hereof; provided, however, in no event may the Auction Rate exceed the Maximum Interest Rate. "Auction Rate Adjustment Date" means with respect to any series of the Bonds, the date on which the Bonds of such series convert ITom an interest rate period other than an Auction Rate Period and begin to bear interest at an Auction Rate. "Auction Rate Index" shall have the meaning specified in Section 3.06 hereof. "Auction Rate Period" means each period during which an Auction Rate is in effect. "Auction Agent" means the auctioneer appointed in accordance with Section 3.09 or 3.10 hereof and shall initially be as set forth in the Indenture. "Auction Agreement" means an agreement between the Auction Agent and the [Tender and Paying Agent/Trustee] pursuant to which the Auction Agent agrees to follow the procedures specified in this Multi-Mode Annex, with respect to the Bonds while bearing interest at an Auction Rate, as such agreement may ITom time to time be amended or supplemented. "Auction Date" means, with respect to any series of the Bonds, (i) if the Bonds are in a daily Auction Period, each Business Day, (ii) if the Bonds are in a Special Auction Period, the last Business Day of the Special Auction Period, and (iii) if the Bonds are in any other Auction Period, the Business Day next preceding each Interest Payment Date for such Bonds (whether or not an Auction shall be conducted on such date); provided, however, that the last Auction Date with respect to a series of the Bonds in an Auction Period other than a daily Auction Period or a DOCSSFI:714674.9 B-1 Special Auction Period shall be the earlier of (a) the Business Day next preceding the Interest Payment Date next preceding the Adjustment Date for the Bonds and (b) the Business Day next preceding the Interest Payment Date next preceding the final maturity date for the Bonds; and provided, further, that if the Bonds are in a daily Auction Period, the last Auction Date shall be the earlier of (x) the Business Day next preceding the Adjustment Date for the Bonds and (y) the Business Day next preceding the final maturity date for the Bonds. The last Business Day of a Special Auction Period shall be the Auction Date for the Auction Period which begins on the next succeeding Business Day, if any. On the Business Day preceding the adjustment ITom a daily Auction Period to another Auction Period, there shall be two Auctions, one for the last daily Auction Period and one for the first Auction Period following the adjustment. "Auction Period" means with respect to each Series of Auction Bonds: (a) a Special Auction Period; (b) with respect to a Series of Auction Bonds in a daily Auction Period, a period beginning on each Business Day and extending to but not including the next succeeding Business Day; (c) with respect to a Series of Auction Bonds in a seven day Auction Period and with Auctions generally conducted on (i) Fridays, a period of generally seven days beginning on a Monday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Sunday) and ending on the Sunday thereafter (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) Mondays, a period of generally seven days beginning on a Tuesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Monday) and ending on the Monday thereafter (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iii) Tuesdays, a period of generally seven days beginning on a Wednesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Tuesday) and ending on the Tuesday thereafter (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iv) Wednesdays, a period of generally seven days beginning on a Thursday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Wednesday) and ending on the Wednesday thereafter (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), and (v) Thursdays, a period of generally seven days beginning on a Friday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Thursday) and ending on the Thursday thereafter (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day); (d) with respect to a Series of Auction Bonds in a 28-day Auction Period and with Auctions generally conducted on (i) Fridays, a period of generally 28 days beginning on a Monday (or the day following the last day of the prior Auction Period ifthe prior Auction Period does not end on a Sunday) and ending on the fourth Sunday thereafter (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) Mondays, a period of generally 28 days beginning on a Tuesday (or the day B-2 DOCSSFI:714674.9 following the last day of the prior Auction Period if the prior Auction Period does not end on a Monday) and ending on the fourth Monday thereafter (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iii) Tuesdays, a period of generally 28 days beginning on a Wednesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Tuesday) and ending on the fourth Tuesday thereafter (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iv) Wednesdays, a period of generally 28 days beginning on a Thursday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Wednesday) and ending on the fourth Wednesday thereafter (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), and (v) Thursdays, a period of generally 28 days beginning on a Friday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Thursday) and ending on the fourth Thursday thereafter (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day); (e) with respect to a Series of Auction Bonds in a 35-day Auction Period and with Auctions generally conducted on (i) Fridays, a period of generally 35 days beginning on a Monday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Sunday) and ending on the fifth Sunday thereafter (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) Mondays, a period of generally 35 days beginning on a Tuesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Monday) and ending on the fifth Monday thereafter (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iii) Tuesdays, a period of generally 35 days beginning on a Wednesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Tuesday) and ending on the fifth Tuesday thereafter (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iv) Wednesdays, a period of generally 35 days beginning on a Thursday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Wednesday) and ending on the fifth Wednesday thereafter (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), and (v) Thursdays, a period of generally 35 days beginning on a Friday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Thursday) and ending on the fifth Thursday thereafter (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day); (1) with respect to a Series of Auction Bonds in a three-month Auction Period, a period of generally three months (or shorter period upon an adjustment ITom another Auction Period) beginning on the day following the last day of the prior Auction Period and ending on the first day of the month that is the third calendar month following the beginning date of such Auction Period (unless such first day of the month is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day); and (g) with respect to a Series of Auction Bonds in a six-month Auction Period, a period of generally six months (or shorter period upon an adjustment ITOm another Auction Period) B-3 DOCSSFI :714674.9 beginning on the day following the last day of the prior Auction Period and ending on the next succeeding r 1 or[ 1; provided, however, that (a) if there is an adjustment of a Series of Auction Bonds with Auctions generally conducted on Fridays (i) ITom a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Sunday (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i.e. the Interest Payment Date for the prior Auction Period) and shall end on the Sunday (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days ITom such date of adjustment, and (iii) ITom a daily Auction Period to a 35-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i.e. the Interest Payment Date for the prior Auction Period) and shall end on Sunday (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of adjustment; (b) if there is an adjustment of a Series of Auction Bonds with Auctions generally conducted on Mondays (i) ITom a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Monday (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the Monday (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days ITom such date of adjustment, and (iii) ITom a daily Auction Period to a 35-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on Monday (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days ITOm such date of adjustment; (c) if there is an adjustment of a Series of Auction Bonds with Auctions generally conducted on Tuesdays (i) ITom a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i.e. the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Tuesday (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the Tuesday (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days from such date of adjustment, and (iii) B-4 DOCSSF1:714674.9 ITOm a daily Auction Period to a 35-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on Tuesday (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of adjustment; (d) if there is an adjustment of a Series of Auction Bonds with Auctions generally conducted on Wednesdays (i) from a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Wednesday (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) ITom a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the Wednesday (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days ITOm such date of adjustment, and (iii) ITom a daily Auction Period to a 35-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i.e. the Interest Payment Date for the prior Auction Period) and shall end on Wednesday (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days ITom such date of adjustment; and (e) if there is an adjustment of a Series of Auction Bonds with Auctions generally conducted on Thursdays (i) ITom a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Thursday (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) ITom a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on the Thursday (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days ITom such date of adjustment, and (iii) ITom a daily Auction Period to a 35-day Auction Period, the next Auction Period shall begin on the date of the adjustment (i. e. the Interest Payment Date for the prior Auction Period) and shall end on Thursday (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of adjustment. "Auction Procedures" means the procedures for conducting Auctions for the Bonds during an Auction Rate Period set forth in Article III hereof. "Auction Rate" means for each series of the Bonds, the rate of interest to be borne by the Bonds of such series during each Auction Period determined in accordance with Section 3.03 hereof; provided, however, in no event may the Auction Rate exceed the Maximum Interest Rate. "Authorized Borrower Representative" means any person who at the time and ITom time B-5 DOCSSFl:714674.9 to time may be designated, by written certificate furnished to the City and the Trustee, as the person authorized to act on behalf of the Borrower. Such certificate shall contain the specimen signature of such person, shall be signed on behalf of the Borrower by any officer and shall designate an alternate or alternates. "Authorized Denomination" means (a) with respect to Bonds during any Term Rate Period, $5,000 or any integral multiple thereof; (b) with respect to Bonds during any Daily Rate Period and any Weekly Rate Period, $100,000 or any integral multiple thereof; (c) with respect to Bonds during any Variable Term Rate Period, $100,000 or any integral multiple of $5,000 in excess of $100,000; and (d) with respect to Bonds during any Auction Rate Period, $25,000 or any integral multiple thereof. "Available Auction Bonds" means for each series of the Auction Bonds on each Auction Date, the aggregate principal amount of such Bonds that are not the subject of Submitted Hold Orders. "Bid" has the meaning specified in subsection (a) of Section 3.01 hereof. "Bidder" means each Existing Owner and Potential Owner who places an Order. "Broker-Dealer" means any entity that is permitted by law to perform the function required of a Broker-Dealer described in this Multi-Mode Annex that is a member of, or a direct participant in, the Securities Depository, that has been selected by the Borrower, with the consent of the City and Goldman, Sachs & Co., so long as Goldman, Sachs & Co. is a Broker-Dealer, and that is a party to a Broker-Dealer Agreement with the Auction Agent. "Broker-Dealer Agreement" means an agreement among the Auction Agent, the Borrower and a Broker-Dealer pursuant to which such Broker-Dealer agrees to follow the procedures described in this Multi-Mode Annex, as such agreement may from to time be amended or supplemented. "Daily Rate" means the variable interest rate on any Bonds established in accordance with Section 2.0 I (c)(ii) hereof. "Daily Rate Adjustment Date" means the date on which the Bonds begin to bear interest at a Daily Rate Period. "Daily Rate Period" means each period during which a Daily Rate is in effect. "Existing Owner" means a Person who is listed as the beneficial owner of the Auction Bonds in the records of the Auction Agent. "Hold Order" has the meaning specified in subsection (a) of Section 3.01 hereof. "Interest Payment Date" means (a) with respect to any Daily or Weekly Rate Period, the first Business Day of each calendar month, (b) with respect to any Term Rate Period, the first day of the sixth month following the commencement ofthe Term Rate Period and the first day of each sixth month period thereafter, (c) with respect to any Variable Term Segment, the Business B-6 DOCSSFl:714674.9 Day succeeding the last day of such Variable Term Segment, and (d) with respect to each series of the Bonds bearing interest at Auction Rates, initially as set forth the Indenture and thereafter (i) when used with respect to any Auction Period other than a daily Auction Period or a Special Auction Period, the Business Day immediately following such Auction Period, (ii) when used with respect to a daily Auction Period, the first Business Day of the month immediately succeeding such Auction Period, (iii) when used with respect to a Special Auction Period of (A) seven or more but fewer than 92 days, the Business Day immediately following such Special Auction Period, or (B) 92 or more days, (1) in the case of a Series of Auction Bonds with Auctions generally conducted on Fridays, each thirteenth Monday after the first day of such Special Auction Period or the next Business Day if such Monday is not a Business Day and on the Business Day immediately following such Special Auction Period, (2) in the case of a Series of Auction Bonds with Auctions generally conducted on Mondays, each thirteenth Tuesday after the first day of such Special Auction Period or the next Business Day if such Tuesday is not a Business Day and on the Business Day immediately following such Special Auction Period, (3) in the case of a Series of Auction Bonds with Auctions generally conducted on Tuesdays, each thirteenth Wednesday after the first day of such Special Auction Period or the next Business Day if such Wednesday is not a Business Day and on the Business Day immediately following such Special Auction Period, (4) in the case of a Series of Auction Bonds with Auctions generally conducted on Wednesdays, each thirteenth Thursday after the first day of such Special Auction Period or the next Business Day if such Thursday is not a Business Day and on the Business Day immediately following such Special Auction Period, (5) in the case of a Series of Auction Bonds with Auctions generally conducted on Thursdays, each thirteenth Friday after the first day of such Special Auction Period or the next Business Day if such Friday is not a Business Day and on the Business Day immediately following such Special Auction Period. "LIB OR" means, on any date of determination for an Auction Period, the offered rate (rounded up to the next highest one one-thousandth of one percent (0.001 %)) for deposits in U.S. dollars for a one-month period which appears on the Telerate Page 3750 at approximately 11:00 A.M., London time, on such date, or if such date is not a date on which dealings in U.S. dollars are transacted in the London interbank market, then on the next preceding day on which such dealings were transacted in such market. "Maximum Interest Rate" means the lesser of [fourteen percent (14%)] or the maximum rate permitted by applicable law. "Order" means a Hold Order, Bid or Sell Order. "Potential Owner" means any Person, including any Existing Owner, who may be interested in acquiring a beneficial interest in the Auction Bonds in addition to the Bonds currently owned by such Person, if any. "Principal Office" means for any Marketing Party the office so designated in writing for each such Marketing Party to the City, the Trustee, the Borrower, and the other Marketing Parties. "Purchase Date" means any date on which any Bond is required to be purchased pursuant to Section 2.02(a) or (b) hereof. B-7 DOCSSF1:7I4674.9 "Rate Period" means any Auction Rate Period, Daily Rate Period, Weekly Rate Period, Variable Term Rate Period or Term Rate Period. "Record Date" means (a) with respect to any Interest Payment Date in respect of any Daily Rate Period, Weekly Rate Period, Auction Rate Period or Variable Term Segment, the Business Day preceding such Interest Payment Date; and (b) with respect to any Interest Payment Date in respect of any Term Rate Period, the fifteenth day of the month preceding such Interest Payment Date. "Sell Order" has the meaning specified in subsection (a) of Section 3.01 hereof. "Special Auction Period" means, with respect to a Series of Auction Bonds, any period of not less than seven nor more than 1092 days which begins on an Interest Payment Date and ends (i) in the case of a Series of Auction Bonds with Auctions generally conducted on Fridays, on a Sunday unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, (ii) in the case of a Series of Auction Bonds with Auctions generally conducted on Mondays, on a Monday unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, (iii) in the case of a Series of Auction Bonds with Auctions generally conducted on Tuesdays, on a Tuesday unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, (iv) in the case of a Series of Auction Bonds with Auctions generally conducted on Wednesdays, on a Wednesday unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, and (v) in the case of a Series of Auction Bonds with Auctions generally conducted on Thursdays, on a Thursday unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day. "Submission Deadline" means I :00 p.m., New York City time, on each Auction Date for a series of the Bonds not in a daily Auction Period and II :00 a.m., New York City time, on each Auction Date for a series of the Bonds in a daily Auction Period, or such other time on such date as shall be specified from time to time by the Auction Agent pursuant to the Auction Agreement as the time by which Broker-Dealers are required to submit Orders to the Auction Agent. "Submitted Bid" has the meaning specified in subsection (b) of Section 3.03 hereof. "Submitted Hold Order" has the meaning specified in subsection (b) of Section 3.03 hereof. "Submitted Order" has the meaning specified in subsection (b) of Section 3.03 hereof. "Submitted Sell Order" has the meaning specified in subsection (b) of Section 3.03 hereof. "Sufficient Clearing Bids" means with respect to a series of the Bonds, an Auction for which the aggregate principal amount of the Bonds of such series that are the subject of Submitted Bids by Potential Owners specifying one or more rates not higher than the Maximum Interest Rate is not less than the aggregate principal amount of the Bonds of such series that are B-8 DOCSSF] :7]4674.9 the subject of Submitted Sell Orders and of Submitted Bids by Existing Owners specifying rates higher than the Maximum Interest Rate. 'Term Rate" means a non-variable interest rate on any Bonds established in accordance with Section 2.01 (c)(iv) hereof. "Term Rate Adjustment Date" means the date on which the Bonds begin to bear interest at a Term Rate Period. "Term Rate Period" means each period during which a Term Rate is in effect. "Variable Term Rate" means, with respect to any Bond, the non-variable rate associated with such Bond established in accordance with Section 2.01(c)(v) hereof. "Variable Term Rate Adjustment Date" means the date on which the Bonds begin to bear interest at a Variable Term Rate Period. "Variable Term Rate Period" means each period comprised of Variable Term Segments during which Variable Term Rates are in effect. "Variable Term Segment" means, with respect to each Bond bearing interest at a Variable Term Rate, the period established in accordance with Section 2.01(c)(v) hereof. "Weekly Rate" means the variable interest rate on any Bonds established in accordance with Section 2.0 I (c)(iii) hereof. "Weekly Rate Adjustment Date" means the date on which the Bonds begin to bear interest at a Weekly Rate Period. "Weekly Rate Period" means each period during which a Weekly Rate is in effect. "Winning Bid Rate" means with respect to a series of the Bonds the lowest rate specified in any Submitted Bid for such series which if selected by the Auction Agent as the Auction Rate would cause the aggregate principal amount of the Bonds of such series that are the subject of Submitted Bids specifying a rate not greater than such rate to be not less than the aggregate principal amount of Available Bonds of such series. ARTICLE II INTEREST PROVISIONS; TENDER PROVISIONS Section 2.01. Interest on Bonds. (a) General. Each Bond shall bear interest from the Interest Payment Date preceding the date of authentication thereof unless it is authenticated on or after a Record Date and on or prior to the related Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or unless it is registered and authenticated before the Record Date B-9 DOCSSFl:714674.9 for the first Interest Payment Date, in which event they shall bear interest ITom the Issue Date; provided, however, that if, as shown by the records of the Paying Agent, interest on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for registration of transfer or exchange shall bear interest from the last date to which interest has been paid in full or duly provided for on the Bonds, or, if no interest has been paid or duly provided for on the Bonds, ITom the Issue Date. Payment of the interest on any Bond shall be made to the person appearing on the bond registration books of the Registrar as the registered holder thereof as of the Record Date, such interest to be paid by the Paying Agent to such registered holder in respect of Bonds which are then held in book-entry form as provided in Section 2.01(d) of the Indenture, in immediately available funds by no later than 2:30 p.m., New York City time, and otherwise (i) by check mailed by first class mail on the Interest Payment Date, to such holder's address as it appears on the registration books of the Registrar or (ii) during any Rate Period other than a Term Rate Period in immediately available funds, but in respect of any holder of Bonds in a Daily Rate Period or a Weekly Rate Period only, to any holder which owns Bonds in an aggregate principal amount of at least $1,000,000 on the Record Date by wire transfer to an account in the United States, according to the instructions given by such holder to the Paying Agent or, if no such instructions have been provided at least 10 days prior to the Record Date, by check mailed by first class mail to the holder at such holder's address as it appears as of the Record Date on the registration books of the Registrar; except, in each case, that, if and to the extent that there shall be a default in the payment of the interest due on such Interest Payment Date, such defaulted interest shall be paid to the holders in whose name any such Bonds are registered as of a special record date to be fixed by the Trustee, notice of which shall be given by first-class mail to such owners not less than ten (10) days prior thereto. Both the principal of and premium, if any, on the Bonds shall be payable upon surrender thereof in lawful money of the United States of America at the Principal Office of the Paying Agent. Notwithstanding the foregoing, interest on any Bond bearing a Variable Term Rate (except any such Bond held in book-entry form as provided in Section 2.01(d) of the Indenture) shall be paid only upon presentation to the Tender Agent of the Bond on which such payment is due. (b) Interest Rates and Rate Periods. The Bonds shall bear interest until final payment of the principal or redemption price thereof shall have been made or provided for in accordance with the provisions hereof, whether at maturity, upon redemption or otherwise. During any Rate.Period other than an Auction Rate Period or a Term Rate Period, interest on the affected Bonds shall be computed upon the basis of a 365- or 366-day year, as applicable, for the number of days actually elapsed. During any Auction Rate Period, interest on the Auction Bonds shall be computed upon the basis of a 360-day year for the number of days actually elapsed if the Auction Bonds are in any mode of 180 days or less. If the Auction Bonds are in a mode which is greater than 180 days, interest will be computed on the basis of a 360-day year of twelve 30-day months. During any Term Rate Period, interest on the affected Bonds shall be computed upon the basis of a 360-day year, consisting of twelve 30-day months. The Bonds shall bear interest for the periods and at the rates set forth in the Indenture. Notwithstanding any other provision of the Indenture, it shall not be required that all Bonds bear interest at the same rate, provided that, except as provided in Section 2.01(c)(v)(D) hereof, no more than one Rate Period may apply to a single Series of Bonds at the same time. The Trustee shall provide the Borrower with notice of the interest rate or rates as provided in [Section - of the Tender Agreement]. B-IO DOCSSFI :714674.9 (c) (i) Rate Periods: Initial Rate Period. The term of the Bonds of each Series shall be divided into consecutive Rate Periods during which such Bonds shall bear interest at the Auction Rate, Daily Rate, Weekly Rate, Variable Term Rate(s) or Term Rate; provided, however, that, to the extent determined in accordance with Section 2.01(c)(v)(D)(2) hereof, a portion of the Bonds may bear interest at a Daily Rate, a Weekly Rate or a Term Rate while other Bonds continue to bear interest at Variable Term Rates. [The Initial Rate Period for the Bonds shall be a Rate Period, and during such Initial Rate Period the Bonds shall bear interest at - Rate.] [The first Auction Date for the Bonds is -,_.] [The initial Interest Payment Date for the Bonds shall be , and the Auction Rate from the date of delivery of the Bonds to, but not including, the initial Interest Payment Date is _%.] [Thereafter the Auction Rate to be applicable to each series of the Series - Bonds during each Auction Period shall be determined by the Auction Agent and notice thereof shall be given as provided herein.] The Rate Period with respect to the Bonds of any Series shall be as provided above until adjusted as provided herein. (ii) Dailv Rate. (A) Determination of Dailv Rate. During each Daily Rate Period applicable to one or more Series of Bonds, the Bonds of such Series shall bear interest at the Daily Rate, determined by the Remarketing Agent either on each Business Day for such Business Day or on the preceding Business Day for the Business Day succeeding such date of determination and as may be determined by the Remarketing Agent for any date that is not a Business Day on any such day during which there shall be active trading in Tax-Exempt obligations comparable to such Bonds for such day. The Daily Rate shall be the rate determined by the Remarketing Agent (based on the examination of Tax-Exempt obligations comparable to the Bonds of such Series known by the Remarketing Agent to have been priced or traded under then prevailing market conditions) to be the lowest rate which would enable the Remarketing Agent to sell the Bonds of such Series on the effective date of such rate at a price (without regard to accrued interest) equal to 100% of the principal amount thereof. If the Remarketing Agent shall not have determined a Daily Rate for any day, the Daily Rate shall be the same as the Daily Rate for the immediately preceding day. In no event shall the Daily Rate be greater than 12% per annum. (B) Adjustment to Dailv Rate. At any time (subject to the provisions of (1 )(b) of this paragraph), the Borrower, by written notice to the City, the Trustee, the Paying Agent and the Remarketing Agent, may elect that the Bonds of one or more Series shall bear interest at a Daily Rate. Such notice (1) shall specify the effective date of such adjustment to a Daily Rate, which shall be (a) a Business Day not earlier than the fifteenth day (the thirtieth day if the then current Rate Period shall be a Term Rate Period) following the third Business Day after the date of receipt by the Trustee and the Paying Agent of such notice (or such shorter period after the date of such receipt as shall be acceptable to the Paying Agent); (b) in the case of an adjustment ITom a Term Rate Period, a day on which the Bonds of such Series would be permitted to be redeemed at the option of the Borrower pursuant to Section 4.01 (a)(2)(iii) hereof or the day immediately following the last day of the then current Term Rate Period; (c) in the case of an adjustment from an Auction Rate Period, a day immediately following the end of an Auction Period and (d) in the case of an adjustment from a Variable Term Rate Period, either (i) the day immediately following the last day of the then current Variable Term Rate Period as B-ll DOCSSFI:714674.9 determined in accordance with Section 2.01(c)(v)(D)(l) hereof, or (ii) for each Bond of such Series, the day immediately following the last day of the last Variable Term Segment for such Bond in the then current Variable Term Rate Period as determined in accordance with Section 2.01(c)(v)(D)(2) hereof); provided, however, that if prior to the Borrower's making such election, any Bonds of such Series shall have been called for redemption and such redemption shall not have theretofore been effected, the effective date of such Daily Rate Period for all Bonds of such Series shall not precede such redemption date; and (2) if the adjustment is ITom a Term Rate Period, shall be accompanied by an Opinion of Bond Counsel to the effect that such adjustment (a) is authorized or permitted by the Indenture and the Law, and (b) will not adversely affect the Tax-Exempt status of the interest on the Bonds. (C) Notice of Adiustment to Dailv Rate. The Trustee shall give Notice by Mail of an adjustment to a Daily Rate Period to the holders of the affected Bonds not less than 15 days (30 days if the then current Rate Period shall be a Term Rate Period) prior to the effective date of such Daily Rate Period. Such notice shall state (I) that the interest rate on such Bonds will be adjusted to a Daily Rate, (2) the effective date of the Daily Rate Period, (3) that such Bonds are subject to mandatory tender for purchase on such effective date, (4) the procedures for such mandatory tender, and (5) that the holders of such Bonds do not have the right to retain their Bonds on such effective date. (iii) Weeklv Rate. (A) Determination of Weeklv Rate. During each Weekly Rate Period applicable to one or more Series of Bonds, the Bonds of such Series shall bear interest at the Weekly Rate, determined by the Remarketing Agent no later than the first day of such Weekly Rate Period and thereafter no later than Tuesday of each week during such Weekly Rate Period, unless any such Tuesday shall not be a Business Day, in which event the Weekly Rate shall be determined by the Remarketing Agent no later than the Business Day preceding such Tuesday. The Weekly Rate shall be the rate determined by the Remarketing Agent (based on the examination of Tax-Exempt obligations comparable to the Bonds of such Series known by such Remarketing Agent to have been priced or traded under then prevailing market conditions) to be the lowest rate which would enable the Remarketing Agent to sell such Bonds on the effective date of such rate at a price (without regarding accrued interest) equal to 100% of the principal amount thereof. If the Remarketing Agent shall not have determined a Weekly Rate for any period, the Weekly Rate shall be the same as the Weekly Rate in effect for the immediately preceding Weekly Rate Period. In no event shall any Weekly Rate be greater than 12% per annum. The first Weekly Rate determined for each Weekly Rate Period shall apply to the period commencing on the first day of such Rate Period and ending on the succeeding Tuesday. Thereafter, each Weekly Rate shall apply to the period commencing on each Wednesday and ending on the succeeding Tuesday, unless such Weekly Rate Period shall end on a day other than Tuesday, in which event the last Weekly Rate for such Weekly Rate Period shall apply to the period commencing on the Wednesday preceding the last day of such Weekly Rate Period and ending on such last day. (B) Adiustment to Weeklv Rate. The Borrower, by written notice to the City, the Trustee, the Paying Agent and the Remarketing Agent, may at any time (subject to the provisions of (I )(b) of this paragraph) elect that the Bonds of one or more Series shall bear B-12 DOCSSFI:714674.9 interest at a Weekly Rate. Such notice (I) shall specify the effective date of such adjustment to a Weekly Rate, which shall be (a) a Business Day not earlier than the fifteenth day (the thirtieth day if the then current Rate Period shall be a Term Rate Period) following the third Business Day after the date of receipt by the Trustee and the Paying Agent of such notice (or such shorter period after the date of such receipt as shall be acceptable to the Paying Agent); (b) in the case of an adjustment ITOm a Term Rate Period, a day on which the Bonds of such Series would be permitted to be redeemed at the option of the Borrower pursuant to Section 4.01 (a)(2)(iii) hereof or the day immediately following the last day of the then current Term Rate Period; (c) in the case of an adjustment ITom an Auction Rate Period, a day immediately following the end of an Auction Period and (d) in the case of an adjustment ITom a Variable Term Rate Period either (i) the day immediately following the last day of the then current Variable Term Rate Period as determined in accordance with Section 2.01(c)(v)(D)(1) hereof, or (ii) for each Bond of such Series, the day immediately following the last day of the last Variable Term Segment for such Bond in the then current Variable Term Rate Period as determined in accordance with Section 2.01 (c)(v)(D)(2) hereof; provided, however, that if prior to the Borrower's making such election, any Bonds of such Series shall have been called for redemption and such redemption shall not have theretofore been effected, the effective date of such Weekly Rate Period for all Bonds of such Series shall not precede such redemption date; and (2) if the adjustment is from a Term Rate Period shall be accompanied by an Opinion of Bond Counsel to the effect that such adjustment (a) is authorized or permitted by the Indenture and the Law, and (b) will not adversely affect the Tax-Exempt status of interest on the Bonds. (C) Notice of Adïustment to Weeklv Rate. The Trustee shall give Notice by Mail of an adjustment to a Weekly Rate Period to the holders of the affected Bonds not less than 15 days (30 days if the then current Rate Period shall be a Term Rate Period) prior to the effective date of such Weekly Rate Period. Such notice shall state (I) that the interest rate on such Bonds will be adjusted to a Weekly Rate, (2) the effective date of such Weekly Rate Period, (3) that such Bonds are subject to mandatory tender for purchase on such effective date, (4) the procedures for such mandatory tender, and (5) that the holders of such Bonds do not have the right to retain their Bonds on such effective date. (iv) Term Rate. (i) Determination of Term Rate. During each Term Rate Period applicable to one or more Series of Bonds, the Bonds of such Series shall bear interest at the Term Rate, which shall be determined by the Remarketing Agent on a Business Day selected by the Remarketing Agent, but not more than 30 days prior to and not later than 12:00 noon, New York City time, on the Business Day prior to the Term Rate Period Adjustment Date. The Term Rate shall be the rate determined by the Remarketing Agent on such date, and communicated not later than 5:00 p.m., New York City time, on such date to the Trustee, the Paying Agent and the Borrower, by written notice or by telephone promptly confirmed by telecopy or other writing, as being the lowest rate (based on the examination of Tax-Exempt obligations comparable to the Bonds of such Series known by the Remarketing Agent to have been priced or traded under then prevailing market conditions) which would enable the Remarketing Agent to sell the Bonds of such Series on the effective date of such Term Rate Period at a price (without regard to accrued interest) equal to 100% ofthe principal amount thereof. B-13 DOCSSFI:714674.9 Notwithstanding any other provision of this subsection, if, for any reason, a Term Rate for any Term Rate Period shall not be determined or effective or if an adjustment from a Term Rate Period to another Rate Period shall not be effective, the Rate Period for (i) the Auction Bonds shall continue be subject to the Auction Procedures on the Auction Dates with respect to the Auction Bonds which otherwise would have been converted excluding however, the Auction Date falling on the Business Day next preceding the failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date, and the interest rate shall continue to be the Auction Rate; provided, however, that the interest rate borne by the Auction Bonds during the Auction Period commencing on such failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date will be the Maximum Interest Rate, and the Auction Period will be the seven-day Auction Period; and (ii) other Bonds except Auction Bonds shall automatically convert to a Daily Rate Period. If a Daily Rate for the first day of such Daily Rate Period is not determined as provided in Section 2.01 (c )(ii) hereof, the Daily Rate for the first day of such Daily Rate Period shall be one hundred twenty percent (120%) of the most recent BMA Municipal Swap Index theretofore published in The Bond Buyer or, in the event that such BMA Municipal Swap Index is not published or is otherwise unavailable, one hundred twenty percent (120%) of such other comparable index as selected by the Borrower with the written consent of the Remarketing Agent, and such Daily Rate shall be communicated to the Trustee and Paying Agent by or on behalf of the Borrower. In no event shall any Term Rate be greater than the Maximum Interest Rate. No Opinion of Bond Counsel shall be required in connection with the automatic adjustment to the Daily Rate or the Auction for Auction Bonds pursuant to this paragraph. If on the proposed Term Rate Adjustment Date any condition precedent to such adjustment is not satisfied and the Bonds bear interest at the Auction Rate, the Trustee will give written notice by first class mail postage prepaid as soon as practicable and in any event not later than the next succeeding Business Day to the Auction Bondholders, the City and [the Bond Insurer] that such adjustment has not occurred, that the Auction Bonds will not be purchased on the failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date. (A) Adjustment to or Continuation of Term Rate. At any time (subject to the provisions of (2) of this paragraph), the Borrower, by written notice to the City, the Trustee, the Paying Agent, the Auction Agent, if any, and the Broker-Dealer, if any, and the Remarketing Agent, may elect that the Bonds bearing interest at a Daily Rate, Weekly Rate, Variable Term Rate, Term Rate or Auction Rate [(in an amount which is an Authorized Denomination for the new Rate Period and in the case of Bonds bearing interest at an Auction Rate in the event of a partial adjustment, leaves at least $10,000,000 in aggregate principal amount of such series of the Bonds bearing interest at an Auction Rate unless consented to by the Broker-Dealers)] shall bear, or continue to bear, interest at a Term Rate. Such notice shall specify the effective date of each Term Rate Period, which shall be (1) a Business Day not earlier than the thirtieth day (the twentieth day if the then current Rate Period is a Term Rate Period) following the seventh Business Day after the date of receipt by the Trustee and the Paying Agent of such notice (or such shorter period after the date of such receipt as shall be acceptable to the Paying Agent); (2) in the case of an adjustment from a Term Rate Period, a day on which the Bonds of such Series would be permitted to be redeemed at the option of the Borrower pursuant to Section 4.01 (a)(2)(iii) hereof or the day immediately following the last day of the then current B-14 DOCSSF1:714674.9 Term Rate Period; (3) in the case of an adjustment from an Auction Rate Period, the day immediately following the end of the final Auction Period and (4) in the case of an adjustment ITOm a Variable Term Rate Period either (i) the day immediately following the last day of the then current Variable Term Rate Period as determined in accordance with Section 2.01(c)(v)(D)(I) hereof, or (ii) for each Bond of such Series, the day immediately following the last day of the last Variable Term Segment for such Bond in the then current Variable Term Rate Period as determined in accordance with Section 2.01(c)(v)(D)(2) hereof; provided, however, that if prior to the Borrower's making such election, any Bonds of such Series shall have been called for redemption and such redemption shall not have theretofore been effected, the effective date of such Term Rate Period for all Bonds of such Series shall not precede such redemption date. On or before the Business Day preceding the effective date specified in the Borrower's notice of an adjustment to or continuation of a Term Rate Period, the Borrower shall give written notice to the City, the Trustee, the Paying Agent, the Auction Agent, if any, and the Broker-Dealer, if any, and the Remarketing Agent, which notice (I) shall specify the last day of such Term Rate Period, (2) may specify two or more consecutive Term Rate Periods and the duration of each such Term Rate Period, (3) may elect that such Term Rate Period shall be automatically renewed for successive Term Rate Periods each having the same duration as the Term Rate Period so specified; provided, however that if the last day of any such successive Term Rate Period shall not be a day immediately preceding a Business Day, then such successive Term Rate Period shall end on the first day immediately preceding the Business Day succeeding such day, or if such day would be after the day preceding the maturity date of such Bonds, such succeeding Term Rate Period shall end on the day preceding the maturity date of the Bonds of such Series; and provided, further, that such election must be accompanied by an Opinion of Bond Counsel to the effect that such continuing automatic renewals of such Term Rate Period (a) are authorized or permitted by the Indenture and the Law, and (b) will not adversely affect the Tax-Exempt status of interest on the Bonds, and (4) subject to the provisions of Section 4.01(a)(4) hereof, may specify for such Term Rate Period(s) optional redemption provisions, prices and periods different from those set out in Section 4.01(a). Unless a Term Rate Period immediately succeeds a Term Rate Period ofthe same duration and is subject to the same optional redemption rights under Section 4.01(a)(2)(iii) hereof as the preceding Term Rate Period, the notice described in the immediately preceding paragraph shall be accompanied by an Opinion of Bond Counsel to the effect that the adjustment to such Term Rate Period (a) is authorized or permitted by the Indenture and the Law, and (b) will not adversely affect the Tax-Exempt status of interest on the Bonds. If the Borrower elects automatic renewals of the Term Rate Period as described in clause (3) of the immediately preceding paragraph, no Opinion of Bond Counsel shall be required in connection with the commencement of each successive Term Rate Period determined in accordance with such election. If, by the date required to give notice to Bondholders pursuant to paragraph (C) below, the Trustee shall not have received notice of the Borrower's election that the Bonds of such Series shall bear interest at a Daily Rate, a Weekly Rate, a Term Rate or a Variable Term Rate accompanied by appropriate opinions of Bond Counsel, the succeeding Rate Period shall be a Daily Rate Period, except that for Bonds bearing interest at an Auction Rate an Auction for B-15 DOCSSF1:714674.9 such Auction Bonds will be held. No Opinion of Bond Counsel shall be required in connection with the automatic adjustment to a Daily Rate or the Auction for Auction Bonds pursuant to this paragraph. If a Daily Rate for the first day of such Daily Rate Period is not determined as provided in Section 2.01 (c)(ii) hereof, the Daily Rate for the first day of such Daily Rate Period shall be one hundred twenty percent (120%) of the most recent BMA Municipal Swap Index theretofore published in The Bond Buyer or, in the event that such BMA Municipal Swap Index is not published or is otherwise unavailable, one hundred twenty percent (120%) of such other comparable index as selected by the Borrower with the written consent of the Remarketing Agent, and such Daily Rate shall be communicated to the Trustee and Paying Agent by or on behalf of the Borrower. (B) Notice of Adìustment to or Continuation of Term Rate. The Trustee shall give Notice by Mail of an adjustment to or continuation of a Term Rate Period to the holders of the affected Bonds not less than 30 days (20 days if the then current Rate Period is a Term Rate Period) prior to the effective date of such Term Rate Period. Such notice shall state (I) that the interest rate on such Bonds will be adjusted to, or continue to be, a Term Rate, (2) the effective date of the Term Rate Period, (3) that such Bonds shall be subject to mandatory tender for purchase on such effective date, (4) the procedures for such mandatory tender, and (5) that the holders of such Bonds do not have the right to retain their Bonds on such effective date. (v) Variable Term Rate. (A) Determination of Variable Term Segments and Variable Term Rates. During each Variable Term Rate Period applicable to one or more Series of Bonds, the Bonds of such Series shall bear interest during each Variable Term Segment for such Bond at the Variable Term Rate for such Bond as described herein. Each Variable Term Segment and Variable Term Rate for each Bond of any Series shall be the Variable Term Segment and Variable Term Rate determined by the Remarketing Agent by agreement with the purchaser of such Bond. Each Variable Term Segment for any Bond of any Series shall be a period, of not less than one nor more than 270 days, determined by the Remarketing Agent to be, in its judgment, the period which, together with all other Variable Term Segments for all Bonds of such Series then outstanding, is likely to result in the lowest overall net interest expense on the Bonds of such Series; provided, however, that any such Bond purchased on behalf of the Borrower and remaining unsold in the hands of the Remarketing Agent as of the close of business on the effective date of the Variable Term Segment for such Bond shall have a Variable Term Segment of one day or, if such Variable Term Segment would not end on a day immediately preceding a Business Day, a Variable Term Segment of more than one day ending on the day immediately preceding the next Business Day; provided, further, however, that (I) each Variable Term Segment shall end on a day which immediately precedes a Business Day and no Variable Term Segment shall extend beyond the final maturity date of the Bonds, and (2) if for any reason the Remarketing Agent fails or is unable to determine a Variable Term Segment on any Bond, the Variable Term Segment for such Bond shall be one day, unless such Variable Term Segment would end on a day which does not precede a Business Day, in which case such Variable Term Segment shall end on the first day immediately preceding the Business Day succeeding such day. The Variable Term Rate for each Variable Term Segment for each Bond of any B-16 DOCSSFI:7I4674.9 Series shall be the rate determined by the Remarketing Agent (based on the examination of Tax- Exempt obligations comparable to the Bonds of such Series known by the Remarketing Agent to have been priced or traded under the then prevailing market conditions) no later than the first day of such Variable Term Segment (and in the case of a Variable Term Segment of one day, no later than 2:00 p.m. New York City time, on such date) to be the lowest rate which would enable the Remarketing Agent to sell the Bonds of such Series on the effective date of such rate at a price (without regarding accrued interest) equal to 100% of the principal amount thereof. If a Variable Term Rate for a Variable Term Segment of one day is not determined or effective, the Variable Term Rate for such Variable Term Segment of one day shall be one hundred twenty percent (120%) of the most recent BMA Municipal Swap Index theretofore published in The Bond Buyer or, in the event that such BMA Municipal Swap Index is not published or is otherwise unavailable, one hundred twenty percent (120%) of such other comparable index as selected by the Borrower with the written consent of the Remarketing Agent, and such Variable Term Rate shall be communicated to the Trustee and Paying Agent by or on behalf of the Borrower. In no event shall the Variable Term Rate for any Bond exceed 12% per annum. (B) Adjustment to Variable Term Rates. At any time (subject to the provisions of (I )(b) of this paragraph), the Borrower, by written notice to the City, the Trustee, the Paying Agent and the Remarketing Agent, may elect that the Bonds of one or more Series shall bear interest at Variable Term Rates. Such notice (I) shall specify the effective date of the Variable Term Rate Period during which the Bonds of such Series shall bear interest at Variable Term Rates, which shall be (a) a Business Day not earlier than the fifteenth day (the thirtieth day if the then current Rate Period shall be a Term Rate Period) following the third Business Day after the date of receipt by the Trustee and the Paying Agent of such notice (or such shorter period after the date of such receipt as shall be acceptable to the Paying Agent), (b) in the case of an adjustment ITom an Auction Rate Period, a day immediately following the end of an Auction Period and (c) in the case of an adjustment from a Term Rate Period, a day on which the Bonds of such Series would be permitted to be redeemed at the option of the Borrower pursuant to Section 4.01(a)(2)(iii) hereof or the day immediately following the last day of the then current Term Rate Period; provided, however, that if prior to the Borrower making such election any of the Bonds of such Series shall have been called for redemption and such redemption shall not have theretofore been effected, the effective date of such Variable Term Rate Period for all Bonds of such Series shall not precede such redemption date; and (2) shall be accompanied by an Opinion of Bond Counsel to the effect that such adjustment (a) is authorized or permitted by the Indenture and the Law and (b) will not adversely affect the Tax-Exempt status of interest on the Bonds. (C) Notice of Adiustment to Variable Term Rates. The Trustee shall give Notice by Mail of an adjustment to a Variable Term Rate Period to the holders of the affected Bonds not less than 15 days (30 days if the then current Rate Period shall be a Term Rate Period) prior to the effective date of such Variable Term Rate Period. Such notice shall state (I) that the interest rate on such Bonds will be adjusted to Variable Term Rates, (2) the effective date of such Variable Term Rate Period, (3) that such Bonds are subject to mandatory tender for purchase on the effective date of such Variable Term Rate Period, (4) the procedures for such mandatory tender, and (5) that the holders of such Bonds do not have the right to retain their Bonds on such effective date. B-17 DOCSSFI:7I4674.9 (D) Adjustment ITom Variable Term Rates. At any time during a Variable Term Rate Period, the Borrower may elect that the Bonds of one or more Series shall no longer bear interest at Variable Term Rates and shall instead bear interest as otherwise permitted under the Indenture. The Borrower shall notify the City, the Trustee, the Paying Agent and the Remarketing Agent of such election and shall specify the Rate Period to follow with respect to such Bonds upon cessation of the Variable Term Rate Period and instruct the Remarketing Agent to (I) determine Variable Term Segments of such duration that, as soon as possible, all Variable Term Segments shall end on the same date, not earlier than the fourteenth day following the third Business Day (or such shorter period acceptable to the Paying Agent), following the receipt by the Trustee and Paying Agent of the notice required by the second succeeding sentence, which date shall be the last day of the then current Variable Term Rate Period, and, upon the establishment of such Variable Term Segments the day succeeding the last day of all such Variable Term Segments shall be the effective date of the Term Rate Period, Weekly Rate Period or Daily Rate Period elected by the Borrower; or (2) determine Variable Term Segments that will in the judgment of the Remarketing Agent best promote an orderly transition to the succeeding Rate Period to apply to such Bonds, beginning not earlier than the fourteenth day following the third Business Day (or such shorter period acceptable to the Paying Agent) following the receipt by the Trustee and Paying Agent of the notice required by the second succeeding sentence. If the alternative in clause (2) above is selected by the Borrower, the day succeeding the last day of the Variable Term Segment for each Bond of such Series shall be with respect to such Bond the effective date of the Rate Period elected by the Borrower. The Borrower, promptly upon the determination thereof, shall give written notice of such last and such effective dates to the Remarketing Agent, the Trustee and the Paying Agent. During any transitional period ITom a Variable Term Rate Period to the succeeding Rate Period in accordance with clause (2) above, the provisions of the Indenture relating to the Bonds of any Series shall be deemed to apply to the Bonds of such Series as follows: the Bonds of such Series continuing to bear interest at Variable Term Rates shall have applicable to them the provisions hereunder theretofore applicable to such Bonds as if all Bonds were continuing to bear interest at Variable Term Rates and the Bonds of such Series bearing interest at the interest rate to which the transition is being made will have applicable to them the provisions hereunder as if all Bonds of such Series were bearing interest at such interest rate. (vi) Auction Rate. (A) Determination of Auction Rate. The Auction Rate for the Auction Period commencing on the Auction Rate Adjustment Date shall be the lowest rate which, in the judgment of the Broker-Dealer, is necessary to enable the Bonds to be remarketed at a price equal to the principal amount thereof, plus accrued interest, if any, on the Auction Rate Adjustment Date. Such determination shall be conclusive and binding upon the City, the Borrower, the Trustee, the Auction Agent and the Owners of the Bonds to which such rate will be applicable. (B) Adiustment to Auction Rate Period. At the option of the Borrower, all [or any portion] of a series of the Bonds (in an amount which is an Authorized Denomination for the new Rate Period) may be converted from a Daily Rate Period, Weekly Rate Period or a Variable Term Rate Period to an Auction Rate Period; provided that after any adjustment of a portion of the Bonds from a Daily Rate, Weekly Rate or a Variable Term Rate to B-18 DOCSSFl:7I4674.9 an Auction Rate Period, there shall be not less than $10,000,000 in aggregate principal amount of any series of Bonds bearing interest at an Auction Rate unless otherwise consented to by the Broker-Dealers. Any such adjustment shall be made as follows: (I) In any such adjustment ITom a Daily Rate Period or Weekly Rate Period, the Auction Rate Adjustment Date shall be a regularly scheduled Interest Payment Date on which interest is payable for the Daily Rate Period or Weekly Rate Period ITOm which the adjustment is to be made; provided, however, that if the adjustment is from a Term Rate Period, the Auction Rate Adjustment Date shall be a regularly scheduled Interest Payment Date on which a new Term Rate Period would otherwise have commenced, and in any such adjustment ITOm a Variable Term Rate Period, the Auction Rate Adjustment Date shall be the last regularly scheduled Interest Payment Date on which interest is payable for any Interest Period theretofore established for the Bonds to be converted. (2) Not later than 5:00 p.m., New York City time, on the date of determination of the Auction Rate, the Broker-Dealer shall notifY the Trustee, the Borrower and the Auction Agent of the Auction Rate by telephone, promptly confirmed in writing. (3) The Borrower may revoke its election to effect an adjustment of the interest rate on any Bonds to an Auction Rate by giving written notice of such revocation to the Trustee, the City, the Remarketing Agent, the Bank, the Auction Agent and the Broker-Dealer at any time prior to the setting of the Auction Rate by the Broker-Dealer. (4) No Bonds may be converted to the Auction Rate when the Bonds are not held by a Securities Depository in book-entry form. (C) Notice of Adjustment to Auction Rate Period. The Borrower shall give written notice of any such adjustment to the Remarketing Agent, the City, the Trustee, the Insurer, the Auction Agent, the Broker-Dealer and the Bank not less than seven (7) Business Days prior to the date on which the Trustee is required to notifY the Owners of the adjustment pursuant to the paragraph below. Such notice shall specifY the Bonds to be converted, Auction Rate Adjustment Date and the length of the initial Auction Period. Together with such notice, the Borrower shall file with the City and the Trustee an Opinion of Bond Counsel to the effect that the adjustment of the Bonds to an Auction Rate Period (a) is authorized or permitted by the Indenture and the Law and (b) will not adversely affect the Tax-Exempt status of interest on the Bonds. No such change to an Auction Rate Period shall become effective unless the Borrower shall also file, with the City and the Trustee, an Opinion of Bond Counsel to the same effect dated the Auction Rate Adjustment Date. Not less than fifteen (15) days prior to the Auction Rate Adjustment Date, the Trustee shall mail a written notice of the adjustment to the Owners of all Bonds to be converted; provided, however, that the Trustee shall not mail such written notice if converting ITom a Variable Term Rate Period until it has received a written confirmation from the Remarketing Agent that no Interest Period for the Bonds extends beyond the Auction Rate Adjustment Date. B-19 DOCSSFI :714674.9 (D) Adjustment ITOm Auction Rate Period. At the option of the Borrower, all or any portion of a series of the Bonds (in an amount which is an Authorized Denomination for the new Rate Period) may be converted from an Auction Rate Period to a Daily Rate Period, Weekly Rate Period or a Variable Term Rate Period, provided that after any adjustment of a portion of a series of the Bonds ITOm an Auction Rate Period to a Daily Rate Period, Weekly Rate Period or Variable Term Rate Period, there shall remain not less than $10,000,000 in aggregate principal amount of such series of the Bonds bearing interest at an Auction Rate unless otherwise consented to by the Brokers-Dealers. Any such adjustment shall be made as follows: (I) The Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date shall be the Interest Payment Date following the final Auction Period. (2) The Borrower shall give written notice of any such adjustment to the City, the Trustee, the Remarketing Agent, if any, the Auction Agent and the Broker-Dealer not less than seven (7) Business Days prior to the date on which the Trustee is required to notify the Owners of the adjustment pursuant to subparagraph (iii) below. Such notice shall specify the Auction Bonds to be converted, the Daily Rate Adjustment Date and Weekly Rate Adjustment Date and the Daily Rate Period or Weekly Rate Period to which the adjustment will be made (and the length of any Term Rate Period) or Variable Term Rate Adjustment Date, as the case may be. Together with such notice, the Borrower shall file with the City and the Trustee an Opinion of Bond Counsel to the effect that the adjustment of the Bonds to be converted to a Daily Rate, Weekly Rate or a Variable Term Rate (a) is authorized or permitted by the Indenture and the Law and (b) will not adversely affect the Tax-Exempt status of interest on the Bonds. No change to a Daily Rate, Weekly Rate or Variable Term Rate shall become effective unless the Borrower shall also file, with the City and the Trustee, an Opinion of Bond Counsel to the same effect dated the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date, as the case may be. (3) Not less than twenty (20) days prior to the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date, the Trustee shall mail a written notice of the adjustment to the Owners of all Bonds to be converted, specifying the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date. (4) At anytime prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or the Variable Term Rate Adjustment Date the Borrower may withdraw its notice of adjustment and the Auction for such Bonds will be held on such Auction Date as if no adjustment notice had ever been given. If on a Daily Rate Adjustment Date, Weekly Rate Adjustment Date or a Variable Term Rate Adjustment Date there has not been a timely withdrawal of the adjustment notice as set forth in the preceding paragraph any condition precedent to such adjustment is not satisfied, the Trustee will give written notice by first class mail postage prepaid as soon as practicable and in any event not later than the next succeeding Business Day to the Bondholders, to have been converted, the City [and the Bond Insurer] that such adjustment has not occurred, that the Bonds will not be purchased on the failed Daily Rate B-20 DOCSSFJ:714674.9 Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date, that the Auction Agent will continue to implement the Auction Procedures on the Auction Dates with respect to such Bonds which otherwise would have been converted excluding however, the Auction Date falling on the Business Day next preceding the failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date, and that the interest rate will continue to be the Auction Rate; provided, however, that the interest rate borne by the Bonds which otherwise would have been converted during the Auction Period commencing on such failed Daily Rate Adjustment Date, Weekly Rate Adjustment Date or Variable Term Rate Adjustment Date will be the Maximum Interest Rate, and the Auction Period will be the seven- day Auction Period. (5) [A Credit Facility meeting the requirements of Section 5.01 hereof shall be in effect on the Daily Rate Adjustment Date, Weekly Rate Adjustment Date or the Variable Term Rate Adjustment Date, as the case may be.] (6) On the adjustment date applicable to the Bonds to be converted, the Bonds to be converted shall be subject to mandatory tender at a purchase price equal to 100% of the principal amount thereof, plus accrued interest. The purchase price of the Bonds so tendered is payable solely from the proceeds of the remarketing of such Bonds. In the event that the conditions of an adjustment are not satisfied, including the failure to remarket all applicable Bonds on a mandatory tender date, the Bonds will not be subject to mandatory tender, will be returned to their owners, will automatically convert to a seven-day Auction Period and will bear interest at the Maximum Interest Rate. (vii) Determination Conclusive. The determination of (i) any Variable Term Rate, Daily Rate, Weekly Rate and Term Rate and each Variable Term Segment by the Remarketing Agent or (ii) any Auction Rate pursuant to the Auction Procedures, shall be conclusive and binding upon the Auction Agent, the Broker-Dealer, the Auction Agent, the Remarketing Agent, the Trustee, the Paying Agent, the City, the Borrower and the holders of the Bonds of the affected Series. (viii) Rescission of Election. Notwithstanding anything herein to the contrary, the Borrower may rescind any election by it to adjust to or continue a Rate Period pursuant to Section 2.01(c)(ii)(B), (iii)(B), (iv)(B), (v)(B), or (vi)(B) hereof prior to the effective date of such adjustment or continuation by giving written notice thereof to the City, the Trustee and the Remarketing Agent prior to such effective date. If the Trustee receives notice of such rescission prior to the time the Trustee has given notice to the holders of the Bonds of any affected Series pursuant to Section 2.01(c)(ii)(C), (iii)(C), (iv)(C), (v)(C), or (vi)(C), as applicable, then such notice of adjustment or continuation shall be of no force and effect. If the Trustee receives notice from the Borrower of rescission of an adjustment to or continuation of a Rate Period after the Trustee has given notice to the holders of the Bonds of such Series pursuant to Section 2.0 I (c)(ii)(C), (iii)(C), (iv)(C), (v)(C), or (vi)(C), as applicable, then the Rate Period for the Bonds of such Series shall automatically adjust to a Daily Rate Period on the date originally scheduled for such adjustment or continuation, except that for Bonds bearing interest at an Auction Rate an Auction for such Auction Bond will be held on such date as if no notice of adjustment had ever been given. No Opinion of Bond Counsel shall be required B-21 DOCSSF1:714674.9 in connection with the automatic adjustment to a Daily Rate Period or the Auction for Auction Bonds pursuant to this paragraph. If a Daily Rate for the first day of such Daily Rate Period is not determined as provided in Section 2.01 (c)(ii) hereof, the Daily Rate for the first day of such Daily Rate Period shall be one hundred twenty percent (120%) of the most recent BMA Municipal Swap Index theretofore published in The Bond Buyer or, in the event that such BMA Municipal Swap Index is not published or is otherwise unavailable, one hundred twenty percent (120%) of such other comparable index as selected by the Borrower with the written consent of the Remarketing Agent, and such Daily Rate shall be communicated to the Trustee and Paying Agent by or on behalf of the Borrower. Section 2.02. Tender and Purchase of Bonds. (a) Holder's Option to Tender for Purchase. (i) During any Daily Rate Period, any Bond or portion thereof in an Authorized Denomination shall be purchased on any Business Day at a purchase price equal to 100% of the principal amount thereof plus accrued interest from the Interest Payment Date preceding the date of purchase to the date of purchase (unless the date of purchase shall be an Interest Payment Date, in which case the purchase price shall be equal to the principal amount thereof), upon (A) delivery to the Tender Agent at its Principal Office, by no later than II :00 a.m., New York City time, on such Business Day, of an irrevocable notice by telephone or in writing, which states the principal amount of such Bond to be tendered for purchase and the Purchase Date, and (B) delivery of such Bond tendered for purchase to the Tender Agent at its Principal Office, accompanied by an instrument of transfer thereof, in a form satisfactory to the Tender Agent, executed in blank by the holder thereof with the signature of such holder guaranteed by a guarantor institution participating in a guarantee program acceptable to the Tender Agent, at or prior to 1:00 p.m., New York City time, on the Purchase Date. The Tender Agent shall keep a written record of the notice described in clause (A). (ii) During any Weekly Rate Period, any Bond or portion thereof in an Authorized Denomination shall be purchased on any Business Day at a purchase price equal to 100% of the principal amount thereof plus accrued interest ITom the Interest Payment Date preceding the Purchase Date to the Purchase Date (unless the Purchase Date shall be an Interest Payment Date, in which case the purchase price shall be equal to the principal amount thereof), upon (A) delivery to the Tender Agent at its Principal Office of an irrevocable notice in writing, or by telephone confirmed in writing, by 5:00 p.m. New York City time on any Business Day, which states the principal amount of such Bond to be tendered for purchase and the Purchase Date, which date shall not be prior to the seventh day succeeding the date of the delivery of such notice to the Tender Agent, and (B) delivery of such Bond to the Tender Agent at its Principal Office, accompanied by an instrument of transfer thereof, in a form satisfactory to the Tender Agent, executed in blank by the holder thereof with the signature of such holder guaranteed by a guarantor institution participating in a guarantee program acceptable to the Tender Agent, at or prior to 1:00 p.m., New York City time, on the Purchase Date. The Tender Agent shall keep a written record of the notice described in clause (A). B-22 DOCSSFl:714674.9 (iii) If any Bond is to be purchased in part pursuant to (i) or (ii), the amount so purchased and the amount not so purchased must each be an Authorized Denomination. (iv) The Tender Agent shall accept any notice of optional tender pursuant to this subsection from any beneficial owner of any Bond held in book-entry form, or any nominee of such beneficial owner, but shall make payment of the purchase price thereof only to the registered owner of such Bond. (v) Notwithstanding any other provision of this Multi-Mode Annex or the Indenture to the contrary, so long as any Bond is held in book-entry form, such Bond need not be delivered in connection with any tender pursuant to this Section (unless such tender is simultaneous with a tender for such Bond pursuant to any other provision of Section 2.02(b) hereof), and all references in said Section to physical delivery of Bonds shall be ineffective. In such case, payment of the purchase price in connection with such tender shall be made to the registered holder of such Bonds on the date designated for such payment, without further action by the beneficial owner who delivered the tender notice, and transfer of beneficial ownership shall be made in accordance with the procedures of the Nominee. (b) Mandatorv Tender for Purchase. (i) Bonds shall be subject to mandatory tender for purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued interest to the Purchase Date described below, upon the occurrence of any of the events stated below: (A) as to any Bond, on the effective date of any change in a Rate Period for such Bond; (B) as to each Bond in a Variable Term Rate Period, on the day succeeding the last day of any Variable Term Segment with respect to such Bond; (C) as to all Bonds, on the Business Day preceding the termination of any Credit Facility with respect to such Bonds; and (D) as to all Bonds, on the Business Day preceding the providing of any Credit Facility with respect to the Bonds. (ii) The Bonds are also subject to mandatory tender for purchase on the day succeeding any Term Rate Period which ends prior to the day originally established as the last day of such Term Rate Period, at a purchase price equal to the principal amount thereof plus an amount equal to any premium which would have been payable on such day had the Borrower directed redemption of such Bonds pursuant to Section 4.01(a)(2)(iii) hereof plus accrued interest to such date. (iii) The Trustee shall give Notice by Mail to the holders of the Bonds at their addresses shown on the registration books kept by the Registrar, of any mandatory tender of Bonds, not less than fifteen days prior to such required tender, which notice shall state B-23 DOCSSFI:714674.9 the date of such tender and that the Bonds are required to be tendered for purchase on such date. (iv) No holder of any Bond subject to mandatory tender as provided herein shall have the option to retain such Bond. (v) Notwithstanding any other provision of this Multi-Mode Annex or the Indenture to the contrary, so long as any Bond is held in book-entry form, such Bond need not be delivered in connection with any tender pursuant to Section 2.02(b)(i)(B) hereof (unless such tender is simultaneous with a tender for such Bond pursuant to any other provision of Section 2.02(b) hereof), and all references in said Section to physical delivery of Bonds shall be ineffective. In such case, payment of the purchase price in connection with such tender shall be made to the registered holder of such Bonds on the date designated for such payment, without further action by the beneficial owner who delivered the tender notice, and transfer of beneficial ownership shall be made in accordance with the procedures of the Nominee. (c) Pavment of Purchase Price. If the Bonds to be purchased pursuant to subsection (a) or (b) of this Section are remarketed, the Tender Agent shall pay the purchase price of such Bonds by drawing upon the moneys deposited therefor according to the terms of the Tender Agreement. The Registrar shall register new Bonds as directed by the Remarketing Agent and make such Bonds available for delivery as provided in the Tender Agreement on the date of such purchase. Payment of the purchase price of any Bond shall be made in immediately available funds for Bonds in Variable Term, Daily or Weekly Rate Periods, and in clearinghouse funds for Bonds in Term Rate Periods unless such Bonds are then held in book-entry only form, but in each case only upon presentation and surrender of such Bond to the Tender Agent, except as otherwise provided in Section 2.01(d) of the Indenture. Payment of the purchase price of any Bonds held in book-entry form as provided in Section 2.01(d) of the Indenture shall be made in immediately available funds by 2:30 p.m., New York City time. If moneys sufficient to pay the purchase price of Bonds to be purchased pursuant to Section 2.02(a) or Section 2.02(b) hereof shall be held by the Tender Agent on the date such Bonds are to be purchased such Bonds shall be deemed to have been purchased and shall be purchased according to the terms of the Tender Agreement, for all purposes of the Indenture, irrespective of whether or not such Bonds shall have been delivered to the Tender Agent, and the former holder of such Bonds shall have no claim thereon, under the Indenture or otherwise, for any amount other than the purchase price thereof. In the event any Bonds purchased according to the terms of the Tender Agreement as provided in this Section 2.02 shall not be presented to the Tender Agent, the Tender Agent shall segregate and hold the moneys for the purchase price of such Bonds in trust, without liability for interest thereon, for the benefit of the former holders of such Bonds, who shall, except as provided in the following sentence, thereafter be restricted exclusively to such moneys for the satisfaction of any claim for the purchase price of such Bonds. Any moneys which the Tender Agent shall segregate and hold in trust for the payment of the purchase price of any Bond and remaining unclaimed for two (2) years after the date of purchase shall, upon the Borrower's written request to the Tender Agent, be paid to the Borrower. After the payment of such B-24 DOCSSFI:714674.9 unclaimed moneys to the Borrower, the former holder of such Bond shall look only to the Borrower for the payment thereof. ARTICLE III AUCTION PROVISIONS Section 3.01. Orders by Existing Owners and Potential Owners. (a) Prior to the Submission Deadline on each Auction Date: (i) each Existing Owner may submit to a Broker-Dealer, in writing or by such other method as shall be reasonably acceptable to such Broker-Dealer, information as to: (A) the principal amount of the Bonds, if any, held by such Existing Owner which such Existing Owner irrevocably commits to continue to hold for the next succeeding Auction Period without regard to the rate determined by the Auction Procedures for such Auction Period; (B) the principal amount of the Bonds, if any, held by such Existing Owner which such Existing Owner irrevocably commits to continue to hold for the next succeeding Auction Period if the rate determined by the Auction Procedures for such Auction Period shall not be less than the rate per annum then specified by such Existing Owner (and which such Existing Owner irrevocably offers to sell on the next succeeding Interest Payment Date (or the same day in the case of a daily Auction Period) if the rate determined by the Auction Procedures for the next succeeding Auction Period shall be less than the rate per annum then specified by such Existing Owner); and/or (C) the principal amount of the Bonds, if any, held by such Existing Owner which such Existing Owner irrevocably offers to sell on the next succeeding Interest Payment Date (or on the same day in the case of a daily Auction Period) without regard to the rate determined by the Auction Procedures for the next succeeding Auction Period. (ii) for the purpose of implementing the Auctions and thereby to achieve the lowest possible interest rate on the Bonds, the Broker-Dealers shall contact Potential Owners, including Persons that are Existing Owners, to determine the principal amount of the Bonds, if any, which each such Potential Owner irrevocably offers to purchase if the rate determined by the Auction Procedures for the next succeeding Auction Period is not less than the rate per annum then specified by such Potential Owner. For the purposes hereof, an Order containing the information referred to in clause (i)(A) above is herein referred to as a "Hold Order", an Order containing the information referred to in clause (i)(B) or (ii) above is herein referred to as a "Bid", and an Order containing the information referred to in clause (i)(C) above is herein referred to as a "Sell Order." (b)(i) A Bid by an Existing Owner shall constitute an irrevocable offer to sell: B-25 DOCSSFl:7J4674.9 (A) the principal amount of the Bonds specified in such Bid if the rate determined by the Auction Procedures on such Auction Date shall be less than the rate specified therein; or (B) such principal amount or a lesser principal amount of the Bonds to be determined as described in subsection (a)(v) of Section 3.04 hereof if the rate determined by the Auction Procedures on such Auction Date shall be equal to such specified rate; or (C) a lesser principal amount of the Bonds to be determined as described in subsection (b)(iv) of Section 3.04 hereof if such specified rate shall be higher than the Maximum Interest Rate and Sufficient Clearing Bids do not exist. (ii) A Sell Order by an Existing Owner shall constitute an irrevocable offer to sell: (A) the principal amount of the Bonds specified in such Sell Order; or (B) such principal amount or a lesser principal amount of the Bonds as described in subsection (b)(iv) of Section 3.04 hereof if Sufficient Clearing Bids do not exist. (iii) A Bid by a Potential Owner shall constitute an irrevocable offer to purchase: (A) the principal amount of the Bonds specified in such Bid if the rate determined by the Auction Procedures on such Auction Date shall be higher than the rate specified therein; or (B) such principal amount or a lesser principal amount of the Bonds as described in subsection (a)(vi) of Section 3.04 hereof if the rate determined by the Auction Procedures on such Auction Date shall be equal to such specified rate. (c) Anything herein to the contrary notwithstanding: (i) for purposes of any Auction, any Order which specifies the Bonds to be held, purchased or sold in a principal amount which is not $25,000 or an integral multiple thereof shall be rounded down to the nearest $25,000, and the Auction Agent shall conduct the Auction Procedures as if such Order had been submitted in such lower amount; (ii) for purposes of any Auction other than during a daily Auction Period, any portion of an Order of an Existing Owner which relates to a Bond which has been called for redemption on or prior to the Interest Payment Date next succeeding such Auction shall be invalid with respect to such portion and the Auction Agent shall conduct the Auction Procedures as if such portion of such Order had not been submitted; (iii) for purposes of any Auction other than during a daily Auction Period, no portion of a Bond which has been called for redemption on or prior to the Interest Payment Date next succeeding such Auction shall be included in the calculation of Available Auction Bonds for such Auction. B-26 DOCSSF1:714674.9 Section 3.02. Submission of Orders bv Broker-Dealers to Auction Agent. (a) Each Broker-Dealer shall submit to the Auction Agent in writing or by such other method as shall be reasonably acceptable to the Auction Agent, including such electronic communication acceptable to the parties, prior to the Submission Deadline on each Auction Date, all Orders obtained by such Broker-Dealer and, if requested, specifying with respect to each Order: (i) the name of the Bidder placing such Order; (ii) the aggregate principal amount of the Bonds of each series, if any, that are the subject of such Order; (iii) to the extent that such Bidder is an Existing Owner: (A) the principal amount of the Bonds of each series, if any, subject to any Hold Order placed by such Existing Owner; (B) the principal amount of the Bonds of each series, if any, subject to any Bid placed by such Existing Owner and the rate specified in such Bid; and (C) the principal amount of the Bonds of each series, if any, subject to any Sell Order placed by such Existing Owner. (iv) to the extent such Bidder is a Potential Owner, the rate specified in such Bid. (b) If any rate specified in any Bid contains more than three figures to the right of the decimal point, the Auction Agent shall round such rate up to the next highest one thousandth of one percent (0.001%). (c) If an Order or Orders covering all of the Bonds of a particular series held by an Existing Owner is not submitted to the Auction Agent prior to the Submission Deadline, the Auction Agent shall deem a Hold Order to have been submitted on behalf of such Existing Owner covering the principal amount of the Bonds of such series held by such Existing Owner and not subject to Orders submitted to the Auction Agent; provided, however, that if there is an adjustment from one Auction Period to another Auction Period and Orders have not been submitted to the Auction Agent prior to the Submission Deadline covering the aggregate principal amount of the Bonds of the series to be converted held by such Existing Owner, the Auction Agent shall deem a Sell Order to have been submitted on behalf of such Existing Owner covering the principal amount of the Bonds of such series to be converted held by such Existing Owner not subject to Orders submitted to the Auction Agent. (d) If one or more Orders covering in the aggregate more than the principal amount of Bonds of a series held by any Existing Owner are submitted to the Auction Agent, such Orders shall be considered valid as follows: (i) all Hold Orders shall be considered Hold Orders, but only up to and including in the aggregate the principal amount of the Bonds of such series held by such Existing Owner; B-27 DOCSSFl:714674.9 (ii) (A) any Bid of an Existing Owner shall be considered valid as a Bid of an Existing Owner up to and including the excess of the principal amount of the Bonds of such series held by such Existing Owner over the principal amount of the Bonds of such series subject to Hold Orders referred to in paragraph (i) above; (B) subject to clause (A) above, all Bids of an Existing Owner with the same rate shall be aggregated and considered a single Bid of an Existing Owner up to and including the excess of the principal amount of the Bonds of such series held by such Existing Owner over the principal amount of the Bonds of such series held by such Existing Owner subject to Hold Orders referred to in paragraph (i) above; (C) subject to clause (A) above, if more than one Bid with different rates is submitted on behalf of such Existing Owner, such Bids shall be considered Bids of an Existing Owner in the ascending order of their respective rates up to the amount of the excess of the principal amount of the Bonds of such series held by such Existing Owner over the principal amount of the Bonds of such series held by such Existing Owner subject to Hold Orders referred to in paragraph (i) above; and (D) the principal amount, if any, of such Bonds of such series subject to Bids not considered to be Bids of an Existing Owner under this paragraph (ii) shall be treated as the subject of a Bid by a Potential Owner. (iii) all Sell Orders shall be considered Sell Orders, but only up to and including a principal amount of the Bonds of such series equal to the excess of the principal amount of the Bonds of such series held by such Existing Owner over the sum of the principal amount of the Bonds considered to be subject to Hold Orders pursuant to paragraph (i) above and the principal amount of the Bonds of such series considered to be subject to Bids of such Existing Owner pursuant to paragraph (ii) above. (e) If more than one Bid is submitted on behalf of any Potential Owner, each Bid submitted with the same rate shall be aggregated and considered a single Bid and each Bid submitted with a different rate shall be considered a separate Bid with the rate and the principal amount of the Bonds specified therein. (t) Neither the City, the Borrower, the [Tender and Paying Agent/Trustee] nor the Auction Agent shall be responsible for the failure of any Broker-Dealer to submit an Order to the Auction Agent on behalf of any Existing Owner or Potential Owner. Section 3.03. Determination of Auction Rate. (a) Not later than 9:30 a.m., New York City time, on each Auction Date for each series of the Bonds, the Auction Agent shall advise the Broker-Dealers and the [Tender and Paying Agent/Trustee] by telephone or other electronic communication acceptable to the parties of the All Hold Rate and the Auction Rate Index for such series of Bonds. (b) Promptly after the Submission Deadline on each Auction Date for each series of the Bonds, the Auction Agent shall assemble all Orders submitted or deemed submitted to it by the Broker-Dealers (each such Order as submitted or deemed submitted by a Broker-Dealer B-28 DOCSSFl:714674.9 being hereinafter referred to as a "Submitted Hold Order," a "Submitted Bid" or a "Submitted Sell Order," as the case may be, and collectively as a "Submitted Order") and shall determine (i) the Available Auction Bonds, (ii) whether there are Sufficient Clearing Bids, and (iii) the Auction Rate. (c) Promptly after the Auction Agent has made the determinations pursuant to subsection (b) above, the Auction Agent shall advise the [Tender and Paying Agent/Trustee] by telephone (promptly confirmed in writing), telex or facsimile transmission or other electronic communication acceptable to the parties of the Auction Rate for the next succeeding Auction Period and the [Tender and Paying Agent/Trustee] shall promptly notify the Securities Depository of such Auction Rate. (d) In the event the Auction Agent shall fail to calculate or, for any reason, fails to provide the Auction Rate for any Auction Period, (i) if the preceding Auction Period was a period of 35 days or less, the new Auction Period shall be the same as the preceding Auction Period and the Auction Rate for the new Auction Period shall be the same as the Auction Rate for the preceding Auction Period, and (ii) if the preceding Auction Period was a period of greater than 35 days, the preceding Auction Period shall be extended to the next seventh day following the day that would have been the last day of such Auction Period had it not been extended (or if such seventh day is not followed by a Business Day then to the next succeeding day which is followed by a Business Day) and the Auction Rate in effect for the preceding Auction Period will continue in effect for the Auction Period as so extended. In the event an Auction Period is extended as set forth in clause (ii) of the preceding sentence, an Auction shall be held on the last Business Day of the Auction Period as so extend to take effect for an Auction Period beginning on the Business Day immediately following the last day of the Auction Period as extended which Auction Period will end on the date it would otherwise have ended on had the prior Auction Period not been extended. (e) In the event of a failed adjustment, with respect to the Bonds and the Bonds to a Daily Rate Period, a Weekly Rate Period, Variable Term Rate Period or a Term Rate Period or in the event of a failure to change the length of the current Auction Period due to the lack of Sufficient Clearing Bids at the Auction on the Auction Date for the first new Auction Period, the Auction Rate for the next Auction Period shall be the Maximum Interest Rate and the Auction Period shall be a seven-day Auction Period. (t) If the Bonds are no longer maintained in book-entry-only form by the Securities Depository, then the Auction Rate shall be the Maximum Interest Rate. (g) If the fees of any Broker-Dealer are not paid and such nonpayment continues for a period of fifteen (15) days after the notice of such nonpayment is delivered to the Borrower and the Trustee from the Broker-Dealer, the Trustee will notify the Auction Agent of such failure and the interest rate for the Auction Period will be the Maximum Interest Rate. B-29 DOCSSF1:714674.9 "-"-'---' Section 3.04. Allocation of Bonds. (a) In the event of Sufficient Clearing Bids for a series of the Bonds, subject to the further provisions of subsections (c) and (d) below, Submitted Orders for such series shall be accepted or rejected as follows in the following order of priority: (i) the Submitted Hold Order of each Existing Owner shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Hold Order; (ii) the Submitted Sell Order of each Existing Owner shall be accepted and the Submitted Bid of each Existing Owner specifying any rate that is higher than the Winning Bid Rate shall be rejected, thus requiring each such Existing Owner to sell the Bonds that are the subject of such Submitted Sell Order or Submitted Bid; (iii) the Submitted Bid of each Existing Owner specifying any rate that is lower than the Winning Bid Rate shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Bid; (iv) the Submitted Bid of each Potential Owner specifying any rate that is lower than the Winning Bid Rate shall be accepted, thus requiring each such Potential Owner to purchase the Bonds that are the subject of such Submitted Bid; (v) the Submitted Bid of each Existing Owner specifying a rate that is equal to the Winning Bid Rate shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Bid, but only up to and including the principal amount of the Bonds obtained by multiplying (A) the aggregate principal amount of Outstanding Bonds which are not the subject of Submitted Hold Orders described in paragraph (i) above or of Submitted Bids described in paragraphs (iii) or (iv) above by (B) a ITaction the numerator of which shall be the principal amount of Outstanding Bonds held by such Existing Owner subject to such Submitted Bid and the denominator of which shall be the aggregate principal amount of Outstanding Bonds subject to such Submitted Bids made by all such Existing Owners that specified a rate equal to the Winning Bid Rate, and the remainder, if any, of such Submitted Bid shall be rejected, thus requiring each such Existing Owner to sell any excess amount of the Bonds; (vi) the Submitted Bid of each Potential Owner specifying a rate that is equal to the Winning Bid Rate shall be accepted, thus requiring each such Potential Owner to purchase the Bonds that are the subject of such Submitted Bid, but only in an amount equal to the principal amount of the Bonds obtained by multiplying (A) the aggregate principal amount of Outstanding Bonds which are not the subject of Submitted Hold Orders described in paragraph (i) above or of Submitted Bids described in paragraphs (iii), (iv) or (v) above by (B) a fraction the numerator of which shall be the principal amount of Outstanding Bonds subject to such Submitted Bid and the denominator of which shall be the sum of the aggregate principal amount of Outstanding Bonds subject to such Submitted Bids made by all such Potential Owners that specified a rate equal to the Winning Bid Rate, and the remainder of such Submitted Bid shall be rejected; and B-30 DOCSSFI:7I4674.9 (vii) the Submitted Bid of each Potential Owner specifying any rate that is higher than the Winning Bid Rate shall be rejected. (b) In the event there are not Sufficient Clearing Bids for a series of the Bonds, subject to the further provisions of subsections (c) and (d) below, Submitted Orders, for each series of the Bonds shall be accepted or rejected as follows in the following order ofpriority: (i) the Submitted Hold Order of each Existing Owner shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Hold Order; (ii) the Submitted Bid of each Existing Owner specifying any rate that is not higher than the Maximum Interest Rate, shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Bid; (iii) the Submitted Bid of each Potential Owner specifying any rate that is not higher than the Maximum Interest Rate, shall be accepted, thus requiring each such Potential Owner to purchase the Bonds that are the subject of such Submitted Bid; (iv) the Submitted Sell Orders of each Existing Owner shall be accepted as Submitted Sell Orders and the Submitted Bids of each Existing Owner specifying any rate that is higher than the Maximum Interest Rate, shall be deemed to be and shall be accepted as Submitted Sell Orders, in both cases only up to and including the principal amount of the Bonds obtained by multiplying (A) the aggregate principal amount of the Bonds subject to Submitted Bids described in paragraph (iii) of this subsection (b) by (B) a ITaction the numerator of which shall be the principal amount of Outstanding Bonds held by such Existing Owner subject to such Submitted Sell Order or such Submitted Bid deemed to be a Submitted Sell Order and the denominator of which shall be the principal amount of Outstanding Bonds subject to all such Submitted Sell Orders and such Submitted Bids deemed to be Submitted Sell Orders, and the remainder of each such Submitted Sell Order or Submitted Bid shall be deemed to be and shall be accepted as a Hold Order and each such Existing Owner shall be required to continue to hold such excess amount of the Bonds; and (v) the Submitted Bid of each Potential Owner specifying any rate that is higher than the Maximum Interest Rate shall be rejected. (c) If, as a result of the procedures described in subsection (a) or (b) above, any Existing Owner or Potential Owner would be required to purchase or sell an aggregate principal amount of the Bonds which is not an integral multiple of $25,000 on any Auction Date, the Auction Agent shall by lot, in such manner as it shall determine in its sole discretion, round up or down the principal amount of the Bonds to be purchased or sold by any Existing Owner or Potential Owner on such Auction Date so that the aggregate principal amount of the Bonds purchased or sold by each Existing Owner or Potential Owner on such Auction Date shall be an integral multiple of $25,000, even if such allocation results in one or more of such Existing Owners or Potential Owners not purchasing or selling any Bonds on such Auction Date. (d) If, as a result of the procedures described in subsection (a) above, any Potential Owner would be required to purchase less than $25,000 in principal amount of the Bonds on any B-31 DOCSSFI:714674.9 Auction Date, the Auction Agent shall by lot, in such manner as it shall determine in its sole discretion, allocate the Bonds for purchase among Potential Owners so that the principal amount of Auction Bonds purchased on such Auction Date by any Potential Owner shall be an integral multiple of $25,000, even if such allocation results in one or more of such Potential Owners not purchasing the Bonds on such Auction Date. Section 3.05. Notice of Auction Rate. (a) On each Auction Date, the Auction Agent shall notify by telephone or other telecommunication device or other electronic communication acceptable to the parties or in writing each Broker-Dealer that participated in the Auction held on such Auction Date of the following with respect to each series of the Bonds for which an Auction was held on such Auction Date: (i) the Auction Rate determined on such Auction Date for the succeeding Auction Period; (ii) whether Sufficient Clearing Bids existed for the determination of the Winning Bid Rate; (iii) if such Broker-Dealer submitted a Bid or a Sell Order on behalf of an Existing Owner, whether such Bid or Sell Order was accepted or rejected and the principal amount of the Bonds, if any, to be sold by such Existing Owner; (iv) if such Broker-Dealer submitted a Bid on behalf of a Potential Owner, whether such Bid was accepted or rejected and the principal amount of the Bonds, if any, to be purchased by such Potential Owner; (v) if the aggregate principal amount of the Bonds to be sold by all Existing Owners on whose behalf such Broker-Dealer submitted Bids or Sell Orders is different ITom the aggregate principal amount of the Bonds to be purchased by all Potential Owners on whose behalf such Broker-Dealer submitted a Bid, the name or names of one or more Broker-Dealers (and the Agent Member, if any, of each such other Broker Dealer) and the principal amount of the Bonds to be (A) purchased ITOm one or more Existing Owners on whose behalf such other Broker-Dealers submitted Bids or Sell Orders or (B) sold to one or more Potential Owners on whose behalf such Broker-Dealer submitted Bids; and (vi) the immediately succeeding Auction Date. (b) On each Auction Date, with respect to each series of the Bonds for which an Auction was held on such Auction Date, each Broker-Dealer that submitted an Order on behalf of any Existing Owner or Potential Owner shall: (i) advise each Existing Owner and Potential Owner on whose behalf such Broker-Dealer submitted an Order as to (A) the Auction Rate determined on such Auction Date, (B) whether any Bid or Sell Order submitted on behalf of each such Owner was accepted or rejected and (C) the immediately succeeding Auction Date; (ii) instruct each Potential Owner on whose behalf such Broker-Dealer submitted a Bid that was accepted, in whole or in part, to instruct such Existing Owner's Agent Member to pay to such Broker-Dealer (or its Agent Member) through the Securities Depository the amount necessary to B-32 DOCSSF1:714674.9 purchase the principal amount of the Bonds to be purchased pursuant to such Bid (including, with respect to the Bonds in a daily Auction Period, accrued interest if the purchase date is not an Interest Payment Date for such Bond) against receipt of such Bonds; and (iii) instruct each Existing Owner on whose behalf such Broker-Dealer submitted a Sell Order that was accepted or a Bid that was rejected, in whole or in part, to instruct such Existing Owner's Agent Member to deliver to such Broker-Dealer (or its Agent Member) through the Securities Depository the principal amount of the Bonds to be sold pursuant to such Bid or Sell Order against payment therefor. Section 3.06. Auction Index. (a) The Auction Rate Index is LIB OR. (b) If for any reason on any Auction Date the Auction Rate Index shall not be determined as hereinabove provided in this Section, the Auction Rate Index shall be the Auction Rate Index for the Auction Period ending on such Auction Date. (c) The determination of the Auction Rate Index as provided herein shall be conclusive and binding upon the Borrower, the [Tender and Paying Agent/Trustee], the Broker- Dealers, the Auction Agent and the Owners ofthe Bonds. Section 3.07. Miscellaneous Provisions Regarding Auctions. (a) In this Multi-Mode Annex each reference to the purchase, sale or holding of Bonds shall refer to beneficial interests in the Bonds, unless the context clearly requires otherwise. (b) During an Auction Rate Period with respect to each series of the Bonds, the provisions of the Indenture and the definitions contained therein and described in this Multi- Mode Annex, including without limitation the definitions of Maximum Interest Rate, All Hold Rate, Auction Rate Index, Interest Payment Date, and the Auction Rate, may be amended pursuant to the Indenture, by obtaining the consent of the owners of all affected Outstanding Bonds bearing interest at an Auction Rate as follows. If on the first Auction Date occurring at least 20 days after the date on which the [Tender and Paying Agent/Trustee] mailed notice of such proposed amendment to the registered owners of the affected Outstanding Bonds as required by the Indenture, (i) the Auction Rate which is determined on such date is the Winning Bid Rate and (ii) there is delivered to the Borrower, the City and the [Tender and Paying Agent/Trustee] an Opinion of Bond Counsel to the effect that such amendment shall not adversely affect the validity of the Bonds or any exemption from federal income tax to which the interest on such Bonds would otherwise be entitled, the proposed amendment shall be deemed to have been consented to by the owners of all affected Outstanding Bonds bearing interest at an Auction Rate of such Series. (c) If the Securities Depository notifies the City or the Borrower that it is unwilling or unable to continue as owner of the Bonds or if at any time the Securities Depository shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation and a successor to the Securities Depository is not appointed by the City within 90 days after the City receives notice or becomes aware of such B-33 DOCSSFl:714674.9 condition, as the case may be, the City shall execute and the [Tender and Paying Agent/Trustee] shall authenticate and deliver certificates representing the Bonds. Such Bonds shall be registered in such names and authorized denominations as the Securities Depository, pursuant to instructions from the Agent Members or otherwise, shall instruct the City and the [Tender and Paying Agent/Trustee]. During an Auction Rate Period, so long as the ownership of the Bonds is maintained in book-entry form by the Securities Depository, an Existing Owner or a beneficial owner may sell, transfer or otherwise dispose of a Bond only pursuant to a Bid or Sell Order in accordance with the Auction Procedures or to or through a Broker-Dealer, provided that (i) in the case of all transfers other than pursuant to Auctions such Existing Owner or its Broker-Dealer or its Agent Member advises the Auction Agent of such transfer and (ii) a sale, transfer or other disposition of the Bonds ITom a customer of a Broker-Dealer who is listed on the records of that Broker- Dealer as the holder of such Bonds to that Broker-Dealer or another customer of that Broker- Dealer shall not be deemed to be a sale, transfer or other disposition for purposes of this paragraph if such Broker-Dealer remains the Existing Owner of the Bonds so sold, transferred or disposed of immediately after such sale, transfer or disposition. Section 3.08. Changes in Auction Period or Auction Date. (a) Changes in Auction Period. (i) During any Auction Rate Period, the Borrower may, with the consent of the City, from time to time on any Interest Payment Date, change the length of the Auction Period with respect to all of the Bonds of any series in an Auction Rate Period among daily, seven-days, 28-days, 35-days, three months, six months and a Special Auction Period in order to accommodate economic and financial factors that may affect or be relevant to the length of the Auction Period and the interest rate borne by such Bonds; provided, however, in the case of a change from a Special Auction Period, the date of such change shall be the Interest Payment Date immediately following the last day of such Special Auction Period. The Borrower shall initiate the change in the length of the Auction Period by giving written notice to the [Tender and Paying Agent/Trustee], [the Bond Insurer,] the City, the Auction Agent, the Broker-Dealers and the Securities Depository that the Auction Period shall change if the conditions described herein are satisfied and the proposed effective date of the change, at least 10 Business Days prior to the Auction Date for such Auction Period. (ii) Any such changed Auction Period shall be for a period of one day, seven-days, 28-days, 35-days, three months, six months or a Special Auction Period and shall be for all of the Bonds of a series in an Auction Rate Period. (iii) The change in the length of the Auction Period for any series of the Bonds shall not be allowed unless Sufficient Clearing Bids existed at both the Auction before the date on which the notice of the proposed change was given as provided in this subsection (a) and the Auction immediately preceding the proposed change. (iv) The change in length of the Auction Period for any series of the Bonds shall take effect only if (A) the [Tender and Paying Agent/Trustee] and the Auction Agent receive, by II :00 a.m., New York City time, on the Business Day before the Auction Date for the first such Auction Period, a certificate ITom the City consenting to the change in the length of the Auction B-34 DOCSSFl:714674.9 Period specified in such certificate and (B) Sufficient Clearing Bids exist at the Auction on the Auction Date for such first Auction Period. For purposes of the Auction for such first Auction Period only, each Existing Owner shall be deemed to have submitted Sell Orders with respect to all of its Bonds except to the extent such Existing Owner submits an Order with respect to such Bonds. If the condition referred to in (A) above is not met, the Auction Rate for the next Auction Period shall be determined pursuant to the Auction Procedures and the Auction Period shall be the Auction Period determined without reference to the proposed change. If the condition referred to in (A) is met but the condition referred to in (B) above is not met, the Auction Rate for the next Auction Period shall be the Maximum Interest Rate, and the Auction Period shall be a seven-day Auction Period. (v) On the adjustment date for the Bonds selected for adjustment ITom one Auction Period to another, any Bonds which are not the subject of a specific Hold Order or Bid shall be deemed to be subject to a Sell Order. (b) Changes in Auction Date. During any Auction Rate Period, the Auction Agent, with the written consent of the Borrower, may specify an earlier Auction Date for any series (but in no event more than five Business Days earlier) than the Auction Date that would otherwise be determined in accordance with the definition of "Auction Date" in order to conform with then current market practice with respect to similar securities or to accommodate economic and financial factors that may affect or be relevant to the day of the week constituting an Auction Date and the interest rate borne on the Bonds. The Auction Agent shall provide notice of its determination to specify an earlier Auction Date for an Auction Period by means of a written notice delivered at least 45 days prior to the proposed changed Auction Date to the [Tender and Paying Agent/Trustee], the City, the Borrower, the Broker-Dealers and the Securities Depository. In the event the Auction Agent specifies an earlier Auction Date, the days of the week on which an Auction Period begins and ends, the day of the week on which a Special Auction Period ends and the Interest Payment Date relating to a Special Auction Period shall be adjusted accordingly. Section 3.09. Auction Agent. (a) The Auction Agent shall be appointed by the [Tender and Paying Agent/Trustee] at the written direction of the Borrower, to perform the functions specified herein. The Auction Agent shall designate its Principal Office and signify its acceptance of the duties and obligations imposed upon it hereunder by a written instrument, delivered to the Borrower, the City, the Trustee and each Marketing Party which shall set forth such procedural and other matters relating to the implementation of the Auction Procedures as shall be satisfactory to the City, the Borrower and the Trustee. (b) Subject to any applicable governmental restrictions, the Auction Agent may be or become the owner of or trade in the Bonds with the same rights as if such entity were not the Auction Agent. Section 3.10. Oualifications of Auction Agent Resignation: Removal. The Auction Agent shall be (a) a bank or trust company organized under the laws of the United States or any state or territory thereof having a combined capital stock, surplus and undivided profits of B-35 DOCSSF1:714674.9 at least $30,000,000, or (b) a member of NASD having a capitalization of at least $30,000,000 and, in either case, authorized by law to perform all the duties imposed upon it by this [Name of the Authorizing Document] and a member of or a participant in, the Securities Depository. The Auction Agent may at any time resign and be discharged ofthe duties and obligations created by this [Name of the Authorizing Document] by giving at least ninety (90) days notice to the City [, the Bond Insurer] and the [Tender and Paying Agent/Trustee]. The Auction Agent may be removed at any time by the Borrower by written notice, delivered to the Auction Agent, the City [, the Bond Insurer] and the [Tender and Paying Agent/Trusteej. Upon any such resignation or removal, the [Tender and Paying Agent/Trustee] shall appoint a successor Auction Agent meeting the requirements of this section. In the event of the resignation or removal of the Auction Agent, the Auction Agent shall pay over, assign and deliver any moneys and the Bonds held by it in such capacity to its successor. The Auction Agent shall continue to perform its duties hereunder until its successor has been appointed by the [Tender and Paying Agent/Trustee]. In the event that the Auction Agent has not been compensated for its services, the Auction Agent may resign by giving thirty (30) days notice to the City, the Borrower and the [Tender and Paying Agent/Trustee] even if a successor Auction Agent has not been appointed. ARTICLE IV REDEMPTION OF BONDS Section 4.01. Redemption of Bonds. The Bonds are subject to redemption if and to the extent the Borrower is entitled or required to make and makes a prepayment pursuant to Article VII of the Agreement, at the times and prices as provided in the Indenture, and according to the terms of this section. The Trustee shall not give notice of any redemption under Section 4.01(a) hereof unless directed in accordance with Section 7.5 of the Agreement. If the Auction Bonds are subject to sinking fund redemption and the scheduled redemption date is not an Interest Payment Date, the Auction Bonds will be redeemed on the Interest Payment Date immediately preceding the scheduled sinking fund redemption date. The Bonds in a Special Auction Period may be redeemed prior to the end of the Special Auction Period pursuant to the sinking fund redemption schedule. The Bonds shall be redeemed upon the following terms: (a) Redemption Upon Optional Prepavment. (I) The Bonds shall be redeemed in whole or in part, and if in part by lot, at any time at a redemption price equal to the principal amount thereof plus accrued interest to the redemption date upon receipt by the Trustee of a written notice ITom the Borrower stating that any of the following events has occurred and that it therefore intends to exercise its option to prepay the payments due under the Agreement in whole or in part pursuant to Section 7.2 of the Agreement and thereby effect the redemption of Bonds in whole or in part to the extent of such prepayments: (A) The Project or a portion thereof the original cost of which is equal to or greater than $500,000 shall have been damaged or destroyed to such extent that, in the opinion of the Borrower (as expressed in a certificate of an Authorized Borrower Representative filed with the City and the Trustee) (a) it is not practicable or desirable to rebuild, repair or restore the Project or such portion thereof within a period of six B-36 DOCSSF1:714674.9 consecutive months following such damage or destruction, (b) the Borrower is or will be thereby prevented from carrying on its normal operations at the Project or such portion thereof for a period of six consecutive months, or (c) the cost of restoration thereof would substantially exceed the net proceeds of insurance carried thereon; (B) Title to, or the temporary use of, the Project or a portion thereof the original cost of which is equal to or greater than $500,000 shall have been taken under the exercise of the power of eminent domain, including such a taking as results (or is likely to result) in the Borrower being prevented ITom carrying on normal operations at the Project or such portion thereof for a period of six months or as renders the Project or such portion thereof unsuitable for use by the Borrower; (C) Unreasonable burdens or excessive liabilities, in the opinion of the Borrower (expressed in a certificate of an Authorized Borrower Representative filed with, and supported by such additional evidence as may be required by, the City and the Trustee), shall have been imposed on the Borrower, including, without limitation, federal, state or other ad valorem, property, income or other taxes not being imposed on the date of the Agreement, which shall have resulted in a cessation of all or substantially all of its normal operations at the Project or a portion thereof the original cost of which is equal to or greater than $500,000 for a period of six consecutive months; or (D) Any court or administrative body shall enter a judgment, order or decree requiring the Borrower to cease all or any substantial part of its operations at the Project or a portion thereof the original cost of which is equal to or greater than $500,000, to such an extent that, in the opinion of the Borrower (expressed in a certificate of an Authorized Borrower Representative filed with, and supported by such additional evidence as may be required by, the City and the Trustee) it is or will be thereby prevented ITom carrying on its normal operations at the Project or such portion thereof for a period of six consecutive months. (2) The Bonds shall be subject to redemption upon prepayment of the Repayment Installments at the option of the Borrower, in whole, or in part by lot, prior to their maturity dates, as follows: (i) During any Variable Term Rate Period, each Bond shall be subject to such redemption on the Business Day succeeding the last day of each Variable Term Segment for such Bond at a redemption price equal to 100% of the principal amount thereof. (ii) During any Daily Rate Period or Weekly Rate Period, the Bonds shall be subject to such redemption on any Business Day at a redemption price equal to 100% of the principal amount thereof plus accrued interest, if any, to the date of redemption. (iii) During any Auction Period, the Bonds shall be subject to such redemption on the Business Day succeeding the last day of the Auction Period, at a redemption price equal to 100% of the principal amount thereof plus accrued interest, if any, to the date of redemption; provided that after any such redemption there shall be not less than B-37 DOCSSF1:714674.9 $10,000,000 in aggregate principal amount of any series of Bonds bearing interest at an Auction Rate unless otherwise consented to by the Broker-Dealers. (iv) During any Term Rate Period and on the Business Day succeeding the last day of each such Rate Period, the Bonds shall be subject to such redemption at any time on or after the 10th anniversary of the effective date of such Rate Period at a redemption price (expressed as a percentage of principal amount) equal to 102%, declining by 1% annually thereafter to 100%. Notwithstanding the foregoing, the Borrower and the Remarketing Agent may, not later than fifteen (15) days before the first day of such Term Rate Period, give notice to the City and the Trustee setting forth a redemption schedule different from that set forth in this paragraph, accompanied by (i) the written consent of the Credit Provider, if any, for such Term Rate Period, and (ii) an Opinion of Bond Counsel to the effect that such change will not adversely affect the Tax-Exempt status of interest on the Bonds; and upon such notice and delivery of the consent, if any, and the opinion, such different redemption schedule shall apply to any redemption pursuant to this paragraph for such Term Rate Period, without further action by any party. (3) During any Term Rate Period the Bonds shall be subject to redemption in whole, or in part by lot, on any date prior to the applicable first date for optional redemption as set forth in Section 4.01(a)(2)(iii) above, at a redemption price equal to the applicable redemption price that would be in effect on such first date for optional redemption, plus interest accrued thereon to the date fixed for redemption, if the Borrower delivers to the Trustee a written certificate to the effect that (i) by reason of a change in use of the Project or any portion thereof, the Borrower has been unable, after reasonable effort, to obtain an Opinion of Bond Counsel that it is more likely than not that Section 150 of the Code will not prevent interest payable under the Agreement from being deductible for federal income tax purposes, and (ii) as a result, the Borrower has elected to prepay Repayment Installments in an amount equal to the principal amount of Bonds to be redeemed. In such case, the Borrower may only direct the Trustee to redeem such principal amount of Bonds as the Borrower determines is necessary to assure that the Borrower retains its right to all such deductions otherwise allowable or, if a partial redemption will not enable the Borrower to retain the right to deduct such interest, the Borrower may direct the Trustee to redeem all the outstanding Bonds or any portion thereof. (4) With respect to any Term Rate Period, the Borrower may specify in the notice required by Section 2.01(c)(iv)(B) hereof redemption provisions, prices and periods other than those set forth above; provided, however, that such notice shall be accompanied by an Opinion of Bond Counsel to the effect that such changes (i) are authorized or permitted by the Law and the Indenture, and (ii) will not adversely affect the Tax-Exempt status of interest on the Bonds. (b) Redemption Upon Mandatory Prepavment. The Bonds shall be subject to redemption ITom amounts which are required to be prepaid by the Borrower under Section 7.3 of the Agreement, as set forth below. In the event of a failure by the Borrower to give any notice of mandatory prepayment required by Section 7.5 of the Agreement, such notice may be given by the City or any holder or holders often percent (10%) or more in aggregate principal amount of Bonds Outstanding (a) not less than 120 days after the occurrence of an event specified in clause (1) or (2) below, and (b) not less than 5 days after the occurrence of an event specified in clause B-38 DOCSSFJ :714674.9 (3) below. In the event that a Responsible Officer of the Trustee has actual knowledge of the occurrence of any event specified in clause (I) through (3) below and the Trustee shall not have received a notice of mandatory prepayment under the Agreement within 180 days of an event specified in clause (I) or (2) below or within 5 days of an event specified in clause (3) below, the Trustee shall give the notice of mandatory prepayment required by Section 7.5 of the Agreement. In each case, the Trustee shall give notice of such redemption as provided in Section 4.01 of the Indenture. (I) The Bonds shall be redeemed in whole on any date at a redemption price equal to the principal amount thereof plus interest accrued to the redemption date if, as a result of any changes in the Constitution of the State of California or in the Constitution of the United States of America or of legislative, judicial or administrative action (whether state or federal), or by final decree, judgment or order of any court or administrative body (whether state or federal) entered after the contest thereof by the Borrower in good faith, the Agreement shall have become void or unenforceable or impossible of performance in accordance with the intent and purposes of the parties as expressed in the Agreement, or shall have been declared unlawful. (2) The Bonds shall be redeemed in whole on any date at a redemption price equal to the principal amount thereof plus interest accrued to the redemption date upon the occurrence of a Determination of Taxability; provided that if, in the Opinion of Bond Counsel delivered to the Trustee, the redemption of a specified portion of the Bonds outstanding would have the result that interest payable on the Bonds remaining outstanding after such redemption would not be includable for federal income tax purposes in the gross income of any holders of a Bond (other than a holder who is a "substantial user" of the Project or a "related person" within the meaning of Section 147(a) of the Code or Section 1O3(b)(13) ofthe 1954 Code), then the Bonds shaH be redeemed in part by lot (in Authorized Denominations), in such amount as Bond Counsel in such opinion shall have determined is necessary to accomplish that result. (3) The Bonds shaH be redeemed in whole at a redemption price equal to the principal amount thereof plus accrued interest to the redemption date, upon the acceleration of payments due under the Agreement following an "Event of Default" thereunder. For purposes of paragraph (I) above, the Trustee shall not be required to give notice of mandatory prepayment unless a Responsible Officer of the Trustee shall have actual knowledge that the Agreement shall have become void, unenforceable or impossible of performance or shall have been declared unlawful as described in said paragraph. Section 4.02. Selection of Bonds for Redemption. If less than all of the Bonds are called for redemption, the Trustee shall select the Bonds or any given portion thereof to be redeemed, ITom the outstanding Bonds or such given portion thereof not previously called for redemption, by lot. For the purpose of any such selection the Trustee shall assign a separate number for each minimum Authorized Denomination of each Bond of a denomination of more than such minimum; provided that following any such selection, both the portion of such Bond to be redeemed and the portion remaining shall be in Authorized Denominations. The Trustee shall B-39 DOCSSFl:714674.9 promptly notify the City and the Borrower in writing of the numbers of the Bonds or portions thereof so selected for redemption. Section 4.03. Partial Redemption of Bonds. Upon surrender of any Bond redeemed in part only, the Registrar shall exchange the Bond redeemed for a new Bond of like tenor and in an Authorized Denomination without charge to the holder in the principal amount of the portion of the Bond not redeemed. The City and the Trustee shall be fully released and discharged ITom all liability to the extent of payment of the redemption price for such partial redemption. Section 4.04. Effect of Redemption. Notice of redemption having been duly given as aforesaid, and moneys for payment of the redemption price being held by the Trustee, the Bonds so called for redemption shall, on the redemption date designated in such notice, become due and payable at the redemption price specified in such notice, interest on the Bonds so called for redemption shall cease to accrue, said Bonds shall cease to be entitled to any lien, benefit or security under the Indenture, and the holders of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof, without interest accrued on any funds held after the redemption date to pay such redemption price accruing after the date of redemption. All Bonds fully redeemed pursuant to the provisions of this Article IV shall be cancelled upon surrender thereof and destroyed by the Registrar, which shall, upon the written request of the City, deliver to the City a certificate evidencing such destruction. Section 4.05. Notice of Redemption. The Trustee, for and on behalf of the City, shall give Notice of any redemption by Mail, postage prepaid, not less than fifteen (15) days (thirty (30) days if the then current Rate Period shall be a Term Rate Period) nor more than sixty (60) days prior to the redemption date, to (i) the registered owner of such Bond at the address shown on the registration books of the Registrar on the date such notice is mailed; (ii) the Securities Depository; and (iii) one or more Information Services. Notice of redemption to the Securities Depository and the Information Services shall be given by telecopy confirmed by first- class mail. Each notice of redemption shall state the date of such notice, the date of issue of the Bonds to be redeemed, the redemption date, the redemption price, the place of redemption (including the name and appropriate address or addresses of the Paying Agent), the source ofthe funds to be used for such redemption, the principal amount, the CUSIP number (if any) of the maturity and, ifless than all, the distinctive certificate numbers of the Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the respective portions of the principal amount thereof to be redeemed. Each such notice shall also state that the interest on the Bonds designated for redemption shall cease to accrue from and after such redemption date and that on said date there will become due and payable on each of said Bonds the principal amount thereof to be redeemed, interest accrued thereon, if any, to the redemption date and the premium, if any, thereon (such premium to be specified) and shall require that such Bonds be then surrendered at the address or addresses of the Paying Agent specified in the redemption notice. Notwithstanding the foregoing, failure to mail the notices required by this paragraph to any registered owner of any Bonds designated for redemption or to any Securities Depository or Information Service, or any defect in any notice so mailed, shall not affect the validity of the proceedings for redemption of any Bonds and shall not extend the period for making elections or B-40 DOCSSF1:714674.9 in any way change the rights of the holders of the Bonds to elect to have their Bonds purchased as provided herein. With respect to any notice of optional redemption of Bonds pursuant to Section 4.01(a), unless upon the giving of such notice such Bonds shall be deemed to have been paid within the meaning of Article X of the Indenture, such notice shall state that such redemption shall be conditional upon the receipt by the Trustee on or prior to the date fixed for such redemption of amounts sufficient to pay the principal of, and premium, if any, and interest on, such Bonds to be redeemed, and that if such amounts shall not have been so received said notice shall be of no force and effect and the City shall not be required to redeem such Bonds. In the event that such notice of redemption contains such a condition and such amounts are not so received, the redemption shall not be made and the Trustee shall within a reasonable time thereafter give notice, to the persons and in the manner in which the notice of redemption was given, that such amounts were not so received. If upon the expiration of thirty (30) days succeeding any redemption date, any Bonds so called for redemption shall not have been presented to the Trustee for payment, the Trustee shall no later than sixty (60) days following such redemption date send a second Notice of such redemption by Mail in the form prescribed by the first paragraph of this Section 4.05 to the holder of each Bond not so presented. ARTICLE V CREDIT FACILITY Section 5.01. Credit Facilitv. The Trustee acknowledges the right of the Borrower at any time to provide a Credit Facility with respect to any Bonds and to terminate any such Credit Facility; provided that no such termination may be effected with respect to any Bond during any Term Rate Period or Variable Term Segment with respect to such Bond. The Trustee also acknowledges the right of the Borrower to substitute a Credit Facility for any Credit Facility then in effect; provided that no such substitution may be made with respect to any Bond during any Term Rate Period or Variable Term Segment with respect to such Bond. Prior to the provision or termination by the Borrower of any Credit Facility (whether in connection with the substitution of an existing Credit Facility or otherwise), there shall be delivered to the City and the Trustee an Opinion of Bond Counsel to the effect that the delivery or termination, as the case may be, of such Credit Facility is permitted under the Law and the Agreement and complies with the terms of the Agreement and that the delivery or termination, as the case may be, of such Credit Facility will not adversely affect the Tax-Exempt status of interest on the Bonds. Upon provision of a Credit Facility to the Trustee and the foregoing Opinion of Bond Counsel to the City and the Trustee, the Trustee shall accept such Credit Facility and, if so directed by the Borrower, upon the effective date of the Credit Facility promptly surrender the previously held Credit Facility, if any, in accordance with the respective terms thereof for cancellation. If at any time there shall cease to be any Bonds Outstanding hereunder secured by a Credit Facility or provision for payment of such Bonds has been made in accordance with Article X of the Indenture, the Trustee shall promptly surrender such Credit Facility in accordance with the terms B-41 DOCSSF1:7I4674.9 of the Credit Facility for cancellation. The Trustee shall comply with the procedures set forth in the Credit Facility relating to the termination thereof. B-42 DOCSSFI:714674.9 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS................................................................................................. I Section 1.01. Definitions............................................................................................ I ARTICLE II INTEREST PROVISIONS; TENDER PROVISIONS.................................... 9 Section 2.01. Interest on Bonds ................................................................................. 9 Section 2.02. Tender and Purchase of Bonds .......................................................... 22 ARTICLE III AUCTION PROVISIONS .............................................................................25 Section 3.01. Orders by Existing Owners and Potential Owners ............................ 25 Section 3.02. Submission of Orders by Broker-Dealers to Auction Agent ............. 27 Section 3.03. Determination of Auction Rate. ......................................................... 29 Section 3.04. Allocation of Bonds. .......................................................................... 30 Section 3.05. Notice of Auction Rate. .....................................................................32 Section 3.06. Auction Index....................................................................................33 Section 3.07. Miscellaneous Provisions Regarding Auctions .................................33 Section 3.08. Changes in Auction Period or Auction Date...................................... 34 Section 3.09. Auction Agent. ................................................................................... 36 Section 3.10. Qualifications of Auction Agent; Resignation; Removal.................. 36 ARTICLE IV REDEMPTION OF BONDS ......................................................................... 36 Section 4.01. Redemption of Bonds ........................................................................ 36 Section 4.02. Selection of Bonds for Redemption................................................... 40 Section 4.03. Partial Redemption of Bonds ............................................................. 40 Section 4.04. Effect of Redemption......................................................................... 40 Section 4.05. Notice of Redemption........................................................................ 40 ARTICLE V CREDIT FACILITY ......................................................................................41 Section 5.01. Credit Facility ....................................................................................41 DOCSSF1:714674.9 -i- Exhibit A Cumulative Project Descriptions for Bonds to Be Refunded by City of Chula Vista Industrial Development Revenue Refunding Bonds (San Diego Gas & Electric Company) $ 200 - Series - The bonds approved to be refunded include bonds issued over the past twelve (12) years to complete the projects set forth below. No new facilities are to be financed by the refunding bonds. Southwest Powerlink (Eastern Supplv Line) Transmission Facilities Electric transmission line facilities, including necessary towers, cable, foundations, and related facilities, equipment, structures and improvements (together with land and land-rights), from Imperial Valley Substation in Imperial County, California, to Miguel Substation in San Diego County, California, required by the Company to transmit needed power supplies to the Company's electric retail service area for further transmission and distribution to its customers therein, including necessary additions and improvements to the Miguel and Mission Substations and connection transmission facilities, to accommodate handling of power supplies. Local Transmission Facilities Additions and improvements to the Company's electric transmission and subtransmission line facilities and related substations, located within the Company's electric retail service area. This includes (but is not limited to) 230 KV transmission line facilities from the Mexican border to the Miguel Substation, required by the Company to provide for bulk transmission of power supplies within such service area for distribution to the Company's customers located therein. Local Generation Facilities Additions and improvements to the Company's electric generating stations and units, located within the Company's retail electric service area and required by the Company to produce electric energy for distribution to its customers located therein. Other Local Electric Facilities Additions and improvements to the Company's electric generation, transmission, subtransmission and distribution facilities, and customer service connections located within the Company's electric retail service area, required by the Company to provide for the generation, transmission and distribution of electric energy to its retail customers, including but not limited to all necessary turbines, generators, poles, foundations, cable, conduit, transformers, switches, controls, meters, substations, 1 -2- Exhibit A land and land-rights and other facilities, structures and equipment, as well as necessary other equipment required for the proper installation, protection, maintenance, control and operation of the foregoing local electric generation, transmission, subtransmission and distribution facilities, including related general facilities, plant, property, vehicles, and other equipment. These facilities were required to meet the needs of new customers, maintain and improve system capabilities, and make overhead to underground conversions. Local Gas Facilities Additions and improvements to the Company's gas transmission, storage and distribution facilities required for the transmission, storage and distribution of gas for delivery to the Company's retail customers. Such facilities include, but are not limited to, t he a cquisition a nd construction of n ew high-pressure transmission pipelines, and new medium- and low-pressure distribution mains, and new customer service lines or the extension, replacement or relocation of existing such mains or portions or components thereof, regulator stations controlling the passage of gas from distribution mains of higher pressure to distribution mains of lower pressure and the volume and pressure of gas within the mains, together with all necessary valves, controls, meters, and other measuring a nd regulating devices, a nd facilities, plant, property, a nd other equipment and improvements (including land and land-rights) necessary for the installation, protection, maintenance, control and operation of the foregoing. The Facilities in each case include all necessary towers, poles, cable, foundations, controls, wiring, transformers, switches, metering equipment, and other related facilities, equipment, structures, and improvements (together with necessary land and land-rights) required for the proper installation, maintenance, control or operation of such Facilities. The additions and improvements to these Facilities are required for the purpose of replacing obsolete or worn out components; providing increased quantities or reliability of energy supplies; providing service to new customers;- complying with zoning and environmental (or other) ordinances, regulations or orders of public bodies or agencies; relocating facilities as required by public works; or otherwise providing for the continued or enhanced maintenance, control or operation of such Facilities. 2 CITY COUNCIL AGENDA STATEMENT Item: Meeting Date: 3/23/04 ITEM TITLE: Public Hearing: Zoning Ordinance Amendment PCA-04-01, a proposal to amend Section 19.58.022 of the Chula Vista Municipal Code regulating accessory second dwelling units to give the Director of Planning and Building the authority to waive the garage parking requirement for nonconforming residential uses seeking to add an accessory second dwelling unit. Applicant: City of Chula Vista. Ordinance of the City Council of the City of Chula Vista modifying section 19.58.022 of the Chula Vista Municipal Code. SUBMITTED BY: Director o[Planning and BUilding~ REVIEWED BY: City ManagerGJ;~¡I The proposal is to give the Planning and Building Director the authority to waive the two-car garage requirement for certain properties seeking to add a second unit when it would detract from the character of the neighborhood. The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a statutory exemption pursuant to Section 21080.17 of CEQA. Thus no further environmental review is necessary. RECOMMENDATION: That the City Council adopts the ordinance amending Section 19.58.022.A.3.f of the Chula Vista Municipal Code. DISCUSSION: The City Council adopted the City's accessory second dwelling unit ordinance provisions in January 2003, and amended it to increase the size limit in January 2004. As part of the amendment, staff included language to clarify how to treat properties with nonconforming uses when the City receives a proposal to add an accessory second unit. This nonconforming use language would have a particular impact on homes without two-car garages, which are now required for all single-family residences. During the hearings, Council discussed the various neighborhoods in the city that were not developed originally with two-car garages and therefore 3- Page 2, Item No.: Meeting Date: 3/23/04 have a certain character unique to that area (see attached minutes). Council expressed concerns that requiring all older homes without two-car garages to provide that parking feature along with the new unit could harm those neighborhoods and could restrict the construction of this source of needed housing. It was suggested that the Director of Planning and Building should be given the authority to review and possibly waive the two-car garage requirement on a case-by-case basis. Since staff needed time to develop the new language to provide this waiver authority, and the topic was not included in the original public hearing notice, a new noticed public hearing was noticed to amend this section of the ordinance once again. Included with this report is the proposed ordinance that will add one sentence to Section 19.58.022.3.f granting the Director of Planning and Building the waiver authority Council expressed a desire to grant. FISCAL IMPACT: None. Attachments 1. Minutes from CC hearing of 1-27-04 J:\PlanningVohnS\Staff Reports\CC\2004\2nd Unit Ord Amend 3.doc . 3-~ 47T;Lk:fI!t1&A/7 L CONSENT CALENDAR (Continued) B. ORDINANCE OF 1HE CITY COUNCIL OF TIlE CITY OF CHULA VISTA ! AMENDING TIm REDEVELOPMENT PIAN FOR THE BAYFRONT{I'OWN CENTRE I REDEVELOPMENT PROmCf AREA PURSUANT TO SENATE BILL 1045 AS CODIFIED IN HEAL'IH AND SAFETY CODE SECfION 33333.6(E)(2)(q (FIRST READING) California Senate Bill 1045 allows the Council to extend by one year the duration of the , effectiveness and time limit to collect tax increment revenue. Adoption of the ordinances amends the plans for the Merged Chula Vista and Bayfront/I'own Centre I . Redevelopment Plans. (Director of Community Development) 1 i Staff recommendation: Council place the ordinances on first reading. ACTION: Mayor Padilla moved to approve staff's recommendations and offered the . Consent Calendar, headings read texts waived. The motion carried 5-0 on Item 1, ¡ except for the minutes of December 16, 2003, which carried 4-0-1 with Deputy : Mayor Salas abstaining due to her absence from the meeting; 5-0 on Items 2 through 5; 3-0-2 on Item 6A, with Councilmembers Rindone and McCann abstaining due to the proximity of their properties to the project; and 4-0-1 on II Item 6B, with Deputy Mayor Salas abstaining due to the proximity of her residence to the project. ! ORAL COMMUNICATIONS . ~~~. I I PUBUC HEARINGS : 7. CONSIDERATION OF A PROPOSAL TO AMEND SECTION 19.58.022 OF THE I CHULA VISTA MUNICIPAL CODE REGUlATING ACCESSORY SECOND , 1 DWELLING UNITS TO INCREASE TIm MAXIMUM SIZE liMIT, MODIFY TIm ¡ ON-SITE PARKING REQUIREMENTS AND ClARIFY TIIE REQUIREMENTS FOR i PROPERTIES WlTII NON-CONFORMING USES Adoption of the proposed ordinance amends the regulations for accessory second dwelling units to allow larger units without impacting surrounding neighborhoods and to I clarify the requirements for properties with non-conforming uses that seek to add a ' second unit. (Director of Planning and Building) , Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Padilla opened the public hearing. Principal Planner Schmitz presented the proposed amendments, stating that the proposal had also been presented to the Planning Commission, which expressed serious concerns about the impact of accessory second dwelling units on existing neighborhoods and recommended against the . increase in size limit. The Planning Commission did recommend, however, the adoption of the added parking space for two-bedroom units and the language relating to non-conforming uses. Page 3 - Council Minutes 01/27/2004 "" PUBliC HEARINGS (Continued) Planning Commissioner O'Neill spoke in opposition to the proposed increase in square footage stating that western Chula Vista would feel the brunt of the proposed additional units, and the proposed amendment would essentially eliminate the Rl designation. He believed that 651 square feet would be ample for an accessory unit. Mayor Padilla asked what the practical impac of the difference between the 650 and 1,000 square feet. Mr. O'Neill responded that 1,001 square feet essentially provides for a three-bedroom home. It would impact on-street parking and vehicles would be parked on lawns and in driveways due to double rental situations. He di. not believe that an accessory unit required three bedrooms. He added that there is no contro over who utilizes the secondary dwelling units and no guarantee that either the primary 0 secondary unit would be owner-occupied. Damon Goodrich, a resident of the west side, agreed with the comments by Mr. O'Neill, addin, that single-family dwellings would be eliminated in the area. Larry Hayes believed that vehicles would not be parked in garages; rather, garages would bc utilized for storing household items or recreational vehicles. I With no further members of the public wishing to speak, Mayor Padilla closed the public I I I hearing. I Councilmember Davis stated that there should be flexibility with regard to parking requirement! I and that she could not support the requirement for a two-car garage. She believed that ont : parking space for up to two bedrooms would suffice. She also believed that 650 square feet wæ I : insufficient for an accessory unit, citing the difficulty for a disabled individual to navigate smaI ! I rooms. She suggested increasing the square footage to 900 and limiting the number of bedroom~ to two. Councilmember Rindone agreed that 650 square feet was too small and suggested increasing th( I square footage to up to 900. He stated that if an accessory unit were added, a two-car, coverec garage should be required, but he suggested giving staff flexibility in cases where the current 101 is not wide enough to accommodate a two-car garage. Deputy Mayor Salas stressed the importance of enforcing requirements to preserve the characteJ of neighborhoods and believed that 800 to 900 square feet was sufficient. She stated that people should not be pennitted to build an accessory unit simply as a source of income, since the regulations are designed to address the growing housing needs and affordability of the community . Councilmember McCann cautioned against eliminating the R -1 designation and stated that 900 square feet would suffice and also provide the necessary room to accommodate persons with special needs. He also stated the importance of ensuring that accessory units are brought up to code. Page 4 - Council Minutes 01/2712004 , , I PUBliC HEARINGS (Continued) ¡ Mayor Padilla asked about non-conforming issues and code compliance. Planning & Building I I Director Sandoval responded that the entire site would have to comply with zoning code , standards. Assistant Planning & Building Director Remp explained the distinction between the I zoning code and building code requirements, stating that the building code specifically requires compliance with the standards that were imposed at the time of construction of a facility. Mayor Padilla stated that he was satisfied with the code compliance language, and, with regard to the parking mitigation requirements, he suggested that staff come back with some flexibility in the language. I Principal Planner Schmitz proposed adding general language regarding the parking issue and I ; suggested that if the existing house was historic, or if the required parking was not consistent i with the neighborhood character, that the Planning Director have the authority to waive one I space or the two-car garage. I ACTION: Councilmember Rindone moved to place the following ordinance on first reading, I ! heading read, text waived, as amended to change the maximum square footage to I 850; to accept the language that addresses non-conforming structures and uses, ; with staff to return with language providing administrative flexibility from the I requirements of Municipal Code Section 19.22.170 that would require two-car garages; and to modify the parking language to require two on-site parking spaces for units with three or more bedrooms: ORDINANCE OF TIlE CITY COUNCIL OF THE CITY OF CHUIA VISTA AMENDING SECTION 19.58.022 OF THE CHUlA VISTA MUNICIPAL CODE, REGUIATING ACCESSORY SECOND DWELLING UNITS, TO ; I INCREASE THE MAXIMUM SIZE LIMIT, MODIFY THE ON-SITE P ARKINO REQUIREMENTS AND ClARIFY THE REQUIREMENTS FOR I PROPERTIES WITH NON-CONFORMING USES (FIRST READING) The motion carried 4-1, with Councilmember Davis voting no due to her concern about the parking requirements. BOARDS AND COMMISSION RECOMMENDATION 8. CHARTER REVIEW COMMISSION RECOMMENDATION REGARDING TIlE CAMPAIGN CONTRIBUTION ORDINANCE SCHEDULED FOR CITY COUNCIL REVIEW ON FEBRUARY 3, 2004 At a regular meeting of the Charter Review Commission held January 12, 2004, a motion was passed to support the ordinance as drafted by the Campaign Contribution Committee and to have the ordinance take effect prior to the November 2004 special election. The commission further recommends that the candidates for the City's elective offices be invited to review the proposed Ordinance upon its adoption by Council. Page 5 - Council Minutes 01/2712004 ORDINANCE NO. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING SECTION 19.58.022 OF THE CHULA VISTA MUNICIPAL CODE REGULATING ACCESSORY SECOND DWELLING UNITS TO ALLOW WAIVERS FROM ON-SITE PARKING REQUIREMENTS UNDER CERTAIN CIRCUMSTANCES. WHEREAS, on January 28th 2003, the City Council of the City ofChula Vista adopted a local ordinance adding Section 19.58.022 to the Chula Vista Municipal Code for the regulation of accessory second units in confonnance with California Government Code Section 65852.2; and WHEREAS, or.. January 2ih 2004, the City Council of the City of Chula Vista amended Section 19.58.022 increasing the maximum size limit for accessory second units to 850 square feet, modifying the required on-site parking for units with three or more bedrooms, and clarifying that properties adding accessory units are required to bring nonconfonning situations on-site up to current code standards; and WHEREAS, at the time of the amendment, the City Council expressed a desire to add language to Section 19.58.022 that would grant the Director of Planning and Building the authority to waive some of the on-site parking for properties adding accessory under certain circumstances and directed staff to return with the appropriate language as soon as possible. The City Council of the City of Chula Vista does hereby ordain: SECTION 1. That Section 19.58.022.A.3.f of the Chula Vista Municipal Code is amended as follows: Section 19.58.022 - Accessory Second Dwelling Units: A. Accessory second dwelling units are allowed in certain areas as a potential source of affordable housing and shall not be considered in any calculation of allowable density for the lot upon which it is located, and shall also be deemed consistent with the General Plan and zoning designation of the lot as provided. Except as provided in section 3.f, accessory second dwelling units, whether attached or detached, shall be considered additions to the existing house for the purposes of evaluating existing nonconfonning structures or uses for compliance with Chapter 19.64 of the Chula Vista Municipal Code. Required corrections of any nonconfonning situations shall occur concurrently with the addition of the new unit. Accessory second dwelling units shall be subject to the following development standards: 1. Accessory second dwelling units shall be limited to a maximum gross floor area of up to 850 square feet, or shall have a gross floor area less than the primary single family dwelling whichever is less, and may be attached or detached above or behind a main or primary single-family dwelling or accessory structure on the same lot. Ordinance - Page 2 2. The accessory second dwelling unit must accompany a main or primary dwelling unit on an A, R-E, R-l or P-C zoned single-family lot. Accessory second dwelling units are precluded from R-2 and R-3 zoned lots. 3. The accessory second dwelling unit shall conform to the underlying zoning and land use development standards of the A, R-E, R-l or P-C zoned lot, such as height, bulk, and area regulations, with the following modifications or exceptions: a. A detached accessory second dwelling unit shall be located a minimum of six feet from a main or primary single-family dwelling unit. b. An accessory second dwelling unit is subject to the same height limitation as the main or primary dwelling unit. c. A single story accessory second dwelling unit may be located within a required rear or interior side yard area, but not closer than 5 feet to any property line. In addition, the unit and all other accessory structures shall not occupy more than thirty percent of the required rear yard. Second story accessory second units shall observe the setbacks of the primary structure unless the zoning administrator approves a reduction to not less than five feet through the approval of a conditional use permit as authorized by Section 19.14.030. d. A lot shall be a minimum 5,000-~quare feet in size to add an accessory second dwelling unit. Existing lots less than 5,000 square feet may develop an accessory second dwelling unit only if it can be incorporated within the existing permitted building envelope. e. The lot coverage including an accessory second dwelling unit shall not exceed 50 percent. Lots in planned communities that are already permitted to exceed 50 percent in lot coverage by their Sectional Planning Area General Development Plan may include an accessory second unit if the accessory second unit can be incorporated within the existing permitted lot coverage. f. Accessory second dwelling units shall be provided with one standard sized parking space for studio, one-bedroom, or two-bedroom units; or two standard sized parking spaces for units with three or more bedrooms. Said parking is in addition to the parking requirements for the main dwelling as specified in Section 19.62.170. The Director of Plmming and Building may waive the requirement to comply with Section 19.62.170 if doing so would be physically infeasible, or materially impair the neighborhood character or public interest. The off-street parking space(s) shall be on the same lot as the second unit, shall be screened from view from public streets, and shall not be located within a required front or exterior side yard setback. Tandem parking is not allowed to satisfy required parking for an accessory second dwelling unit. 3-,7 Ordinance - Page 3 Lots having accessory second dwelling units must take access from a public street, alley or a recorded access easement. g. The accessory second dwelling unit shall be served by the same water and sewer service lateral connections that serve the main or primary dwelling unit. A separate electric meter and address may be provided for the accessory second unit. h. Accessory second dwellings shall be designed to be consistent in architectural style with the main house and compatible with surrounding residential properties. The Design Review Committee shall review disputes about design and/or compatibility issues. 1. Any accessory second dwelling unit that is attached to an existing residential structure shall meet the standards of Section 19.58.022, and all applicable development standards of the existing zone. SECTION II. This Ordinance amendment shall take effect and be in full force on the thirtieth day from and after its adoption. Presented by: Approved as to form by: James D. Sandoval, AICP Director of Planning & Building J:\PLANNING\JOHNS\DOCUMENTS\ORDTNANCES\ASDU ORD - 2ND AMENDMENT-PARKING WAIVER. DOC COUNCIL AGENDA STATEMENT Item 4- Meeting Date 3/23/04 ITEM TITLE: Public Hearing to consider amending Ordinance 2579, relating to Interim Pre-SR 125 Development Impact Fee Ordinance Amending Ordinance 2579, relating to Interim Pre- SR 125 Development Impact Fee SUBMITTED BY: Director of General Services/City Engineer ~. REVIEWED BY: City Manager ~ (4/5ths Vote: Yes ~ No ~ It is recommended that this public hearing be opened and continued to April 6, 2004. J:\Engineer\AGENDA\SRI25 Tolling Fee-cont'd.doc If