Indenture of Trust (CSJFA Lease Revenue Bonds Series 2025A)

Agenda Version
IN

DENTURE OF TRUST
Dated as of August 1, 2025
between

CITY OF SAN JOSE FINANCING AUTHORITY
and

WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
Authorizing the Issuance of
$[PAR]
City of San José Financing Authority
Lease Revenue Bonds, Series 2025A
(Civic Center Garage and Muni Water Building Projects)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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TABLE OF CONTENTS

ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions .................................................................................................................. 3 SECTION 1.02. Authorization .............................................................................................................. 3 SECTION 1.03. Interpretation ............................................................................................................. 3

ARTICLE II
THE 2025A BONDS
SECTION 2.01. Authorization of 2025A Bonds ................................................................................... 3 SECTION 2.02. Terms of the 2025A Bonds ......................................................................................... 4 SECTION 2.03. Transfer and Exchange of Bonds ............................................................................... 5 SECTION 2.04. Book-Entry System ..................................................................................................... 5 SECTION 2.05. Registration Books ..................................................................................................... 7 SECTION 2.06. Form and Execution of 2025A Bonds ........................................................................ 7 SECTION 2.07. Bonds Mutilated, Lost, Destroyed or Stolen .............................................................. 7 SECTION 2.08. Additional Bonds ........................................................................................................ 8 SECTION 2.09. Proceedings for the Issuance of Additional Bonds .................................................... 9 SECTION 2.10. Applicability to Additional Bonds ............................................................................ 10

ARTICLE III
ISSUANCE OF 2025A BONDS; APPLICATION OF PROCEEDS
SECTION 3.01. Issuance of the 2025A Bonds ................................................................................... 10 SECTION 3.02. Application of Proceeds of Sale of 2025A Bonds; Transfer of Prior Funds ........... 10 SECTION 3.03. Establishment and Application of Costs of Issuance Fund ...................................... 10 SECTION 3.04. Establishment and Application of Project Fund ...................................................... 11 SECTION 3.05. Validity of Bonds ...................................................................................................... 11

ARTICLE IV
REDEMPTION OF 2025A BONDS
SECTION 4.01. Terms of Redemption ............................................................................................... 11 SECTION 4.02. Selection of 2025A Bonds for Redemption ............................................................... 12 SECTION 4.03. Notice of Redemption; Rescission ............................................................................ 12 SECTION 4.04. Partial Redemption of Bonds ................................................................................... 13 SECTION 4.05. Effect of Redemption ................................................................................................ 13

ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF

PRINCIPAL AND INTEREST
SECTION 5.01. Security for the Bonds; Bond Fund .......................................................................... 13 SECTION 5.02. Allocation of Revenues ............................................................................................. 14 SECTION 5.03. Application of Interest Account ............................................................................... 14 SECTION 5.04. Application of Principal Account ............................................................................. 14 SECTION 5.05. Application of Redemption Fund ............................................................................. 15 SECTION 5.06. Insurance and Condemnation Fund ......................................................................... 15 SECTION 5.07. Investments ............................................................................................................... 16 SECTION 5.08. Valuation and Disposition of Investments ............................................................... 17

ARTICLE VI

COVENANTS OF THE AUTHORITY
SECTION 6.01. Punctual Payment .................................................................................................... 18 SECTION 6.02. Extension of Payment of Bonds ................................................................................ 18 SECTION 6.03. Against Encumbrances ............................................................................................. 18 DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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SECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment ....................................... 18 SECTION 6.05. Accounting Records ................................................................................................. 18 SECTION 6.06. Limitation on Additional Obligations ...................................................................... 18 SECTION 6.07. Tax Covenants .......................................................................................................... 19 SECTION 6.08. Enforcement of Lease ............................................................................................... 19 SECTION 6.09. Waiver of Laws ........................................................................................................ 20 SECTION 6.10. Further Assurances .................................................................................................. 20

ARTICLE VII

EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01. Events of Default ...................................................................................................... 20 SECTION 7.02. Remedies Upon Event of Default ............................................................................. 20 SECTION 7.03. Application of Revenues and Other Funds After Default ........................................ 21 SECTION 7.04. Trustee to Represent Bond Owners .......................................................................... 22 SECTION 7.05. Limitation on Bond Owners' Right to Sue ................................................................ 22 SECTION 7.06. Absolute Obligation of Authority ............................................................................. 22 SECTION 7.07. Termination of Proceedings ..................................................................................... 23 SECTION 7.08. Remedies Not Exclusive ........................................................................................... 23 SECTION 7.09. No Waiver of Default ............................................................................................... 23 SECTION 7.10. Notice to Bond Owners of Default ........................................................................... 23

ARTICLE VIII

THE TRUSTEE
SECTION 8.01. Appointment of Trustee ............................................................................................ 23 SECTION 8.02. Acceptance of Trusts; Removal and Resignation of Trustee ................................... 23 SECTION 8.03. Merger or Consolidation ......................................................................................... 25 SECTION 8.04. Liability of Trustee ................................................................................................... 25 SECTION 8.05. Right to Rely on Documents ..................................................................................... 28 SECTION 8.06. Preservation and Inspection of Documents ............................................................. 29 SECTION 8.07. Compensation and Indemnification ......................................................................... 29

ARTICLE IX

MODIFICATION OR AMENDMENT HEREOF
SECTION 9.01. Amendments Permitted ............................................................................................ 30 SECTION 9.02. Effect of Supplemental Indenture ............................................................................. 31 SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds ................................................ 31 SECTION 9.04. Amendment of Particular Bonds .............................................................................. 32

ARTICLE X

DEFEASANCE
SECTION 10.01. Discharge of Indenture ............................................................................................ 32 SECTION 10.02. Discharge of Liability on Bonds .............................................................................. 32 SECTION 10.03. Deposit of Money or Securities with Trustee ........................................................... 33 SECTION 10.04. Unclaimed Funds ..................................................................................................... 33

ARTICLE XI

MISCELLANEOUS
SECTION 11.01. Liability of Authority Limited to Revenues .............................................................. 34 SECTION 11.02. Limitation of Rights to Parties and Bond Owners ................................................... 34 SECTION 11.03. Funds and Accounts ................................................................................................. 34 SECTION 11.04. Waiver of Notice; Requirement of Mailed Notice .................................................... 34 SECTION 11.05. Destruction of Bonds ................................................................................................ 34 SECTION 11.06. Severability of Invalid Provisions ............................................................................ 34 SECTION 11.07. Notices ...................................................................................................................... 35 DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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SECTION 11.08. Evidence of Rights of Bond Owners ......................................................................... 35 SECTION 11.09. Disqualified Bonds ................................................................................................... 36 SECTION 11.10. Money Held for Particular Bonds ............................................................................ 36 SECTION 11.11. Waiver of Personal Liability .................................................................................... 36 SECTION 11.12. Successor Is Deemed Included in All References to Predecessor ........................... 36 SECTION 11.13. Execution in Several Counterparts .......................................................................... 36 SECTION 11.14. Payment on Non-Business Day ................................................................................ 36 SECTION 11.15. Governing Law ......................................................................................................... 36 SECTION 11.16. Entire Agreement ..................................................................................................... 37

APPENDIX A DEFINITIONS
APPENDIX B FORM OF 2025 BONDS

APPENDIX C FORM OF COSTS OF ISSUANCE FUND REQUISITION

APPENDIX D FORM OF PROJECT FUND REQUISITION

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

INDENTURE OF TRUST

This INDENTURE OF TRUST (this “Indenture”), dated for convenience as of August 1, 2025, is between the CITY OF SAN JOSE FINANCING AUTHORITY, a joint exercise of powers authority duly organized and existing under the laws of the State of California (the “Authority”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, with a corporate trust office in Costa Mesa, California, being qualified to accept and administer the trusts hereby created (the “Trustee”).

RECITALS:

1. The Authority is a joint exercise of powers authority duly organized and existing under and pursuant to that certain Joint Exercise of Powers Agreement, dated December 8, 1992, by and between the City of San José (the “City”) and the Redevelopment Agency of the City of San José (the “Former Agency”), and under the provisions of Articles 1 through 4 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”), and is authorized pursuant to Article 4 of the Act (the “Bond Law”) to borrow money for the purpose, among other things, of financing and refinancing public capital improvements for the City and the Former Agency and the Authority has heretofore determined to adopt and implement a program under which the Authority will provide financing for certain public capital improvements for the City.

2. The Former Agency, as of February 1, 2012, has been dissolved and the City has become the successor agency of the Former Agency pursuant to Part 1.85 of Division 24 of the California Health and Safety Code and per California Health and Safety Code Section 34178(b)(3), the joint exercise of powers agreement establishing the Authority remains in effect.

3. The Authority previously issued its City of San José Financing Authority Lease Revenue Refunding Bonds, Series 2013B (Civic Center Garage Project) in the original aggregate principal amount of $30,445,000 (the “2013B Bonds”), to refund the then outstanding City of San José Financing Authority Lease Revenue Bonds, Series 2008B (Civic Center Garage Refunding Project) issued to refinance a parking garage owned and operated by the City.

4. The Authority previously issued its Tax -Exempt Lease Revenue Commercial Paper Notes, Series 1 (as refinanced from time to time with subsequent commercial paper notes, the “ Muni Water Building Project Commercial Paper Notes”) to finance, on an interim basis, the construction of a new Administration and Operations Building, and the acquisition, construction and installation of related capital improvements, for the Water Resources Division, to be located at 3025 Tuers Road in the City of San José.

5. The City desires to finance remaining costs to complete the Muni Water Building Project.

6. The Authority and the City have determined that it would be in the best interests of the Authority, the City and residents of the City to for the Authority to issue its City of San José Financing Authority Lease Revenue Bonds, Series 2025A (Civic Center Garage and Muni Water Building Projects) in the aggregate principal amount of $[PAR] (the “2025A Bonds”), for the purpose of (i) financing remaining costs to complete the Muni Water Building Project, and (ii) refunding all of the outstanding 2013B Bonds and the outstanding Muni Water Building Project Commercial Paper Notes.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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7. The outstanding 2013B Bonds are subject to optional redemption prior to maturity on any date at a redemption price equal to the principal amount of 2013B Bonds to be redeemed plus accrued but unpaid interest to the redemption date, without premium.

8. The outstanding Muni Water Building Project Commercial Paper Notes may be refinanced in connection with the maturity of the next roll of Commercial Paper Notes.

9. To facilitate the issuance of the 2025A Bonds, the City and the Authority have entered into a Site Lease dated as of the date hereof, between the City and the Authority (the “ Site Lease”) pursuant to which the City has leased certain real property, which real property shall initially consist of ______ and the Muni Water Building Project located at 3025 Tuers Road, San José, California, as more particularly described in Appendix A to the Site Lease (collectively, the “ Leased Property”), to the Authority, and a Lease Agreement dated as of the date hereof, between the City and the Authority (the “Lease”), pursuant to which the City has leased the Leased Property back from the Authority, and has agreed to pay semiannual Lease Payments in an amount sufficient to enable the Authority to pay debt service on the 2025A Bonds.

10. The Lease Payments made by the City under the Lease have been assigned by the Authority to the Trustee for the security of the 2025A Bonds under an Assignment Agreement dated as of the date hereof, between the Authority as assignor and the Trustee as assignee.

11. The Authority has sold the 2025A Bonds to the Original Purchaser (as hereinafter defined) pursuant to an Official Notice Inviting Bids dated as of July ___, 2025.

12. To provide for the authentication and delivery of the Bonds (as hereinafter defined), to establish and declare the terms and conditions upon which the Bonds are to be issued and to secure the payment of the principal thereof, premium (if any) and interest thereon, the Authority has authorized the execution and delivery of this Indenture.

13. The Authority has found and determined, and hereby affirms, that all acts and proceedings required by law necessary to make the Bonds, when executed by the Authority, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal special obligations of the Authority, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Indenture have been in all respects duly authorized.

AGREEMENT:

In order to secure the payment of the principal of and the interest and redemption premium (if any) on all the Outstanding Bonds under this Indenture according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of the promises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Owners thereof, and for other valuable considerations, the receipt of which is hereby acknow ledged, the Authority and the Trustee do hereby covenant and agree with one another, for the benefit of the respective Owners from time to time of the Bonds, as follows:

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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ARTICLE I

DEFINITIONS; RULES OF CONSTRUCTION

SECTION 1.01. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms defined in Appendix A attached to this Indenture have the respective meanings specified in that Appendix when used in this Indenture.

SECTION 1.02. Authorization. Each of the parties hereby represents and warrants that it has full legal authority and is duly empowered to enter into this Indenture, and has taken all actions necessary to authorize the execution hereof by the officers and persons signing it.

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ECTION 1.03. Interpretation.

(a) Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate.

(b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof.

(c) All references herein to “Articles,” “Sections” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture; the words “herein,” “hereof,” “hereby,” “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof.

ARTICLE II

T
HE 2025A BONDS

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ECTION 2.01. Authorization of 2025A Bonds. The Authority has reviewed all proceedings heretofore taken and has found, as a result of such review, and hereby finds and determines that all things, conditions and acts required by law to exist, happen or be performed precedent to and in connection with the issuance of the 2025A Bonds do exist, have happened and have been performed in due time, form and manner as required by law, and the Authority is now duly empowered, under each and every requirement of law, to issue the 2025A Bonds in the manner and form provided in this Indenture.

The Authority hereby authorizes the issuance of 2025A Bond s in the aggregate principal amount of $[PAR].00 under the Bond Law for the purposes of providing funds to pay the Site Lease Payment to the City and thereby provide funds to (i) finance the remaining costs to complete the Muni Water Building Project, (ii) refund the outstanding 2013B Bonds and Muni Water Building Project Commercial Paper Notes, and (iii) pay Costs of Issuance. The 2025A Bonds are authorized and issued under, and are subject to the terms of, this Indenture and the Bond Law . The 2025A Bonds are designated the “City of San José Financing Authority Lease Revenue Bonds, Series 2025A (Civic Center Garage and Muni Water Building Projects).”

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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SECTION 2.02. Terms of the 2025A Bonds.

(a) Payment Provisions. The 2025A Bonds shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof, so long as no 2025A Bond has more than one maturity date. The 2025A Bonds shall mature on June 1 in each of the years and in the amounts, and bear interest (calculated on the basis of a 360 -day year of twelve 30-day months) at the rates, as follows:

Maturity Date
(June 1)
Principal
Amount
Interest
Rate

T: 2025A Term Bonds.

Interest on the 2025A Bonds is payable from the Interest Payment Date next preceding the date of authentication thereof unless:

(a) a 2025A Bond is authenticated on or before an Interest Payment Date and after the close of business on the preceding Record Date, in which event it will bear interest from such Interest Payment Date,

(b) a 2025A Bond is authenticated on or before the first Record Date, in which event interest thereon will be payable from the Closing Date, or

(c) interest on any 2025A Bond is in default as of the date of authentication thereof, in which event interest thereon will be payable from the date to which interest has been paid in full, payable on each Interest Payment Date.

Interest is payable on each Interest Payment Date to the persons in whose names the ownership of the 2025A Bonds is registered on the Registration Books at the close of business on the immediately preceding Record Date, except as provided below.

Interest on any 2025A Bond which is not punctually paid or duly provided for on any Interest Payment Date is payable to the person in whose name the ownership of such 2025A Bond is registered on the Registration Books at the close of business on a special record date for the payment of such DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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defaulted interest to be fixed by the Trustee, notice of which is given to such Owner by first-class mail not less than 10 days prior to such special record date.

The Trustee will pay interest on the 2025A Bonds by check of the Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date to the Owners of the 2025A Bonds at their respective addresses shown on the Registration Books as of the close of business on the preceding Record Date. At the written request of the Owner of 2025A Bonds in an aggregate principal amount of at least $1,000,000, which written request is on file with the Trustee as of any Record Date, the Trustee will pay interest on such 2025A Bonds on each succeeding Interest Payment Date by wire transfer in immediately available funds to such account of a financial institution within the United States of America as specified in such written request, which written request will remain in effect until rescinded in writing by the Owner.

The Trustee will pay principal and premium, if any, of the 2025A Bonds in lawful money of the United States of America by check of the Trustee or by wire upon presentation and surrender of such 2025A Bonds at the Office of the Trustee. So long as the owner of the 2025A Bonds are registered to Cede & Co., payment of principal and redemption price shall be made without presentment.

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ECTION 2.03. Transfer and Exchange of Bonds.

(a) Transfer. Any Bond may, in accordance with its terms, be transferred, upon the Registration Books, by the person in whose name it is registered, in person or by a duly authorized attorney of such person, upon surrender of such Bond to the Trustee at its Office for cancellation, accompanied by delivery of a written instrument of transfer in a form acceptable to the Trustee, duly executed. The Trustee shall require the Owner requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer. Whenever any Bond or Bonds shall be surrendered for transfer, the Authority shall execute and the Trustee shall authenticate and deliver to the transferee a new Bond or Bonds of like series, interest rate, maturity and aggregate principal amount. The Authority shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any transfer of Bonds.

(b) Exchange. The Bonds may be exchanged at the Office of the Trustee for a like aggregate principal amount of Bonds of other authorized denominations and of the same series, interest rate and maturity. The Trustee shall require the Owner requesting such exchange to pay any tax or other governmental charge required to be paid with respect to such exchange . The Authority shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any exchange of Bonds.

(c) Limitations. The Trustee may refuse to transfer or exchange, under the provisions of this Section 2.03, any Bonds selected by the Trustee for redemption under Article IV, or any Bonds during the period established by the Trustee for the selection of Bonds for redemption.

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ECTION 2.04. Book-Entry System.

(a) Original Delivery. The Bonds will be initially delivered in the form of a separate single fully registered bond (which may be typewritten) for each maturity of the Bonds. Upon initial delivery, the Trustee shall register the ownership of each Bond on the Registration Books in the name of the Nominee. Except as provided in subsection (c), the ownership of all of the Outstanding Bonds shall be registered in the name of the Nominee on the Registration Books.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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With respect to Bonds the ownership of which shall be registered in the name of the Nominee, the Authority and the Trustee has no responsibility or obligation to any Depository System Participant or to any person on behalf of which the Nominee holds an int erest in the Bonds. Without limiting the generality of the immediately preceding sentence, the Authority and the Trustee has no responsibility or obligation with respect to (i) the accuracy of the records of the Depository, the Nominee or any Depository System Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Depository System Participant or any other person, other than a Bond Owner as shown in the Registration Books, of any notice with respect to the Bonds, including any notice of redemption, (iii) the selection by the Depository of the beneficial interests in the Bonds to be redeemed if the Authority elects to redeem the Bonds in part, (iv) the payment to any Depository System Participant or any other person, other than a Bond Owner as shown in the Registration Books, of any amount with respect to principal, premium, if any, or interest on the Bonds or (v) any consent given or other action taken by the Depository as Owner of the Bonds. The Authority and the Trustee may treat and consider the person in whose name each Bond is registered as the absolute owner of such Bond for the purpose of payment of principal of and premium, if any, and interest on such Bond, for the purpose of giving no tices of redemption and other ma tters with respect to such Bond, for the purpose of registering transfers of ownership of such Bond, and for all other purposes whatsoever. The Trustee shall pay the principal of and the interest and premium, if any, on the Bonds only to the respective Owners or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge all obligations with respect to payment of principal of and interest and premium, if any, on the Bonds to the extent of the sum or sums so paid. No person other than a Bond Owner shall receive a Bond evidencing the obligation of the Authority to make payments of principal, interest and premium, if any, under this Indenture. Upon delivery by the Depository to the Authority of written notice to the effect that the Depository has determined to substitute a new Nominee in its place, and subject to the provisions herein with respect to Record Dates, such new nominee shall become t he Nominee hereunder for all purposes; an d upon receipt of such a notice the Authority shall promptly deliver a copy of the same to the Trustee.

(b) Representation Letter. In order to qualify the Bonds for the Depository’s book -entry system, the Authority shall execute and deliver to such Depository a letter in which the Authority will agree to the Depository’s operational arrangements. To the extent required to do so by the Depository, the Trustee shall also execute such representation letter and agree to the Depository’s operational arrangements. The execution and delivery of such letter shall not in any way limit the provisions of subsection (a) above or in any other way impose upon the Authority or the Trustee any obligation whatsoever with respect to persons having interests in the Bonds other than the Bond Owners. In addition to the execution and delivery of such letter, the Authority may take any other actions, not inconsistent with this Indenture, to qualify the Bonds for the Depository’s book-entry program.

(c) Transfers Outside Book -Entry System. If either (i) the Depository determines not to continue to act as Depository for the Bonds, or (ii) the Authority determines to terminate the Depository as such, then the Authority shall thereupon discontinue the book- entry system with such Depository .

In such event, the Depository shall cooperate with the Authority and the Trustee in the issuance of replacement Bonds by providing the Trustee with a list showing the interests of the Depository System Participants in the Bonds, and by surrendering the Bonds, registered in the name of the Nominee, to the Trustee on or before the date such replacement Bonds are to be issued . The Depository, by accepting delivery of the Bonds, agrees to be bound by the provisions of this subsection (c) . If, prior to the termination of the Depository actin g as such, the Authority fails to identify another Securities Depository to replace the Depository, then the Bonds shall no longer be required to be registered in the Registration Books in the name of the Nominee, and, upon transfer or exchange, shall be registered in DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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whatever name or names the Owners transferring or exchanging Bonds shall designate, in accordance with the provisions hereof.

If the Authority determines that it is in the best interests of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the Authority may notify the Depository System Participants of the availability of such certificated Bonds th rough the Depository. In such event, the Trustee will issue, transfer and exchange Bonds as required by the Depository and others in appropriate amounts; and whenever the Depository requests, the Trustee and the Authority shall cooperate with the Depository in taking appropriate action (y) to make available one or more separate certificates evidencing the Bonds to any Depository System Participant having Bonds credited to its account with the Depository, or (z) to arrange for another Securities Depository t o maintain custody of a single certificate evidencing such Bonds, all at the Authority’s expense.

(d) Payments to the Nominee. Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all payments with respect to principal of and interest and premium, if any, on such Bond and all notices with respect to such Bond shall be made and given, respectively, as provided in the letter described in subsection (b) of this Section or as otherwise instructed by the Depository.

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ECTION 2.05. Registration Books. The Trustee will keep or cause to be kept, at the Office of the Trustee, sufficient records for the registration and transfer of ownership of the Bonds, which shall upon reasonable notice as agreed to by the Trustee, be open to inspection during regular business hours by the Authority; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such records, the ownership of the Bonds as hereinbefore provided.

SECTION 2.06. Form and Execution of 2025A Bonds. The 2025A Bonds, the form of Trustee’s certificate of authentication, and the form of assignment to appear thereon, are set forth in Appendix B attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture.

The Executive Director or the Treasurer of the Authority shall execute, and the Secretary of the Authority shall attest, each 2025A Bond. Either or both of such signatures may be made manually or may be affixed by facsimile thereof . If any officer whose signature appears on any 2025A Bond ceases to be such officer before the Closing Date, such signature will nevertheless be as effective as if the officer had remained in office until the Closing Date. Any 2025A Bond may be signed and attested on behalf of the Authority by such persons as at the actual date of the execution of such 2025A Bond are the proper officers of the Authority, duly authorized to execute debt instruments on behalf of the Authority, although on the date of such 2025A Bond any such person was not an officer of the Authority.

Only those 2025A Bonds bearing a certificate of authentication in the form set forth in Appendix B, manually executed and dated by the Trustee, are valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Trustee is conclusive evidence that such 2025A Bonds have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.

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ECTION 2.07. Bonds Mutilated, Lost, Destroyed or Stolen . If any Bond is mutilated, the Authority, at the expense of the Owner of such Bond, shall execute, and the Trustee shall thereupon DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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authenticate and deliver, a new Bond of like tenor in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated . The Trustee shall cancel every mutilated Bond surrendered to it and deliver such mutilated Bond to, or upon the order of, the Authority.

If any Bond is lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence is satisfactory and if indemnity satisfactory to the Trustee and the Authority is given, the Authority, at the expense of the Owner, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen.

The Trustee may require payment of a sum not exceeding the actual cost of preparing each new Bond issued under this Section and of the expenses which may be incurred by the Trustee in connection therewith. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen will constitute an original additional contractual obligation on the part of the Authority whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Indenture with all other Bonds issued under this Indenture.

Notwithstanding any other provision of this Section 2.07, in lieu of delivering a new Bond for which principal has become due for a Bond which has been mutilated, lost, destroyed or stolen, the Trustee may make payment of such Bond in accordance with its t erms upon receipt of indemnity satisfactory to the Trustee.

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ECTION 2.08. Additional Bonds . In addition to the 2025A Bond s authorized to be issued pursuant to Section 2.01 of this Indenture, the Authority may, by Supplemental Indenture, establish one or more series of Additional Bonds on a parity with the 2025A Bonds, and may issue and deliver such Additional Bonds in such principal amount as shall be determined by the Authority, but only upon compliance by the Authority with the provisions of this Section 2. 08 and Section 2.09, and subject to the following specific conditions which are hereby made conditions precedent to the issuance of such Additional Bonds:

(a) The Authority and the City shall be in compliance with all covenants and undertakings set forth in this Indenture, the Lease, and the Site Lease.

(b) The Supplemental Indenture authorizing issuance of such Additional Bonds shall establish such accounts and subaccounts within the various funds and accounts established hereby or the Authority shall deem necessary or advisable.

(d) The Authority shall have entered into an amendment to the Lease, in and by which the City obligates itself in the manner provided in the Lease to make Lease Payments and Additional Rental Payments for the lease of the Leased Property at the times and in the amounts sufficient to provide for the payment of the principal of and interest on such Additional Bonds as such principal and interest become due and to make all other payments in the manner provided in the Lease, and the City shall certify in writin g, that such Lease Payments and Additional Rental Payments, as amended, in any Rental Period shall not exceed DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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the fair rental value of the Leased Property after taking into account the use of the proceeds of any Additional Bonds issued in connection therewith shall have been satisfied by the City in connection with the City so obligating itself.

(e) If necessary to ensure that the Lease Payments and Additional Rental Payments payable after the issuance of Additional Bonds do not exceed the fair rental value of the Leased Property in any Rental Period , the Authority and the City shall have amended the Lease pursuant to Section 3.4 thereof to add additional property to the Leased Property.

SECTION 2.09. Proceedings for the Issuance of Additional Bonds. Whenever the Authority shall have determined to issue Additional Bonds pursuant to Section 2.08, the Authority shall enter into a Supplemental Indenture determining that the issuance of such Additional Bonds is necessary for the purposes specified in Section 2.08, specifying the principal amount of such Additional Bonds and prescribing the terms and conditions of such Additional Bonds and the funds to be established for the security and payment thereof, including, at the option of the Authority and the City, any reserve funds or accounts for such Additional Bonds (and such other series of Additional Bonds identified by the Authority and the City) so that the amount therein shall equal the amount specified in a Supplemental Indenture. For the avoidance of doubt, any series of Additional Bonds issued in the future, at the option of the Authority and the City may, but are not required to, be secured by a reserve fund or account established therefore in the Supplemental Indenture for such bonds . Before such Addi tional Bonds shall be issued and delivered, the Authority shall file the following documents with the Trustee:

(a) An executed copy of the Supplemental Indenture authorizing such Additional Bonds, together with a certified copy of the resolution s of the Authority and the City authorizing the issuance of such Additional Bonds and the execution of such Supplemental Indenture.

(b) An Opinion of bond counsel stating: (i) that the execution and delivery of the Additional Bonds have been duly authorized by the Authority; (ii) that the issuance of the Additional Bonds is authorized by the Bond Law and this Indenture; (iii) that the Add itional Bonds when duly executed and delivered, will be valid and binding obligations of the Authority, payable from Revenues in accordance with the terms of this Indenture and the Supplemental Indenture authorizing the issuance of such Additional Bonds ; (i v) if the Additional Bonds are to be tax -exempt, that the interest on the Additional Bonds will be excluded from the gross income of the Owners thereof for federal income tax purposes; and (v) that the issuance of such Additional Bonds will not, of itself, cause interest on any Outstanding Bonds the interest of which is intended to be exempt from federal income taxation to become includable in gross income for federal income tax purposes.

(c) A Written Certificate of the Authority certifying that the requirements set forth in Section 2.08 have been either met or provided for, together with a copy of the amendment to the Lease required by Section 2.08, together with a certified copy of the resolutions of the Authority and the City authorizing the execution of such amendment to the Lease.

(d) A copy of a letter sent by the City to each rating agency then rating the Outstanding Bonds to notify each rating agency of the issuance of such Additional Bonds.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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SECTION 2.10. Applicability to Additional Bonds. Unless otherwise specified in the Supplemental Indenture pursuant to which an issue of Additional Bonds are issued, the provisions of Sections 2.03 through 2.05 and 2.07 shall apply to such issue of Additional Bonds.

ARTICLE III

ISSUANCE OF 2025A BONDS; APPLICATION OF PROCEEDS

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ECTION 3.01. Issuance of the 2025A Bonds. At any time after the execution of this Indenture, the Authority may execute and the Trustee shall authenticate and, upon the Written Request of the Authority, deliver the 2025A Bonds to the Original Purchaser.

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ECTION 3.02. Application of Proceeds of Sale of 2025A Bonds; Transfer of Prior Funds. On the Closing Date, the Original Purchaser will pay a purchase price for the 2025A Bonds in the amount of $_______, which is equal to the original principal amount of the 2025A Bonds ($[PAR].00), plus the original issue premium of $_______, and less a purchaser’s discount of $________.

On the Closing Date, the Original Purchaser shall wire a portion of said purchase price in the amount $_______ to the Trustee, and the Trustee shall deposit said amount as follows:

(a) the Trustee shall deposit $________ into the Costs of Issuance Fund; and

(b) the Trustee shall deposit the remaining $_______ into the Project Fund.

On the Closing Date, the Original Purchaser shall wire the remainder of the purchase price (being $______) as follows: the Original Purchaser shall wire (i) $________ directly to the 2013B Bonds Trustee for deposit and application in accordance with the Refunding Instructions (2013B Bonds), and (ii) $________ directly to the Commercial Paper Notes Trustee for deposit and application in accordan ce with the Refunding Instructions ( Muni Water Building Project Commercial Paper Notes).

The deposit by the Trustee into the Costs of Issuance Fund together with the funds to be wired directly by the Original Purchaser to the 2013B Bonds Trustee and the Commercial Paper Notes Trustee as described above represent the full amount of the Site Lease Payment under Section 3 of the Site Lease.

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ECTION 3.03. Establishment and Application of Costs of Issuance Fund . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “Costs of Issuance Fund ” into which the Trustee shall deposit a portion of the proceeds of sale of the 2025A Bonds under Section

3.02. The Trustee shall disburse amounts in the Costs of Issuance Fund from time to time to pay the Costs of Issuance upon submission of a Written Requisition of the Authority substantially in the form attached hereto as Appendix C stating the person to whom payment is to be made, the amount to be paid, the purpose for which the obligation was incurred and that such payment is a proper charge against said fund. Each such Written Requisition of the Authority shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts. The Trustee may conclusively rely on such Written Requisitions and shall be ful ly protected in relying thereon. On the date that is ninety (90) days following the Closing Date, or upon the earlier Written Request of the Authority, the Trustee shall transfer all amounts remaining in the Costs of Issuance Fund to the Interest Account and shall thereupon close the Costs of Issuance Fund.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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SECTION 3.04. Establishment and Application of Project Fund . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “Project Fund” into which the Trustee shall deposit a portion of the proceeds of sale of the 2025A Bonds pursuant to Section 3.02.

The Trustee shall administer such fund as provided in this Section 3.04. Amounts on deposit in the Project Fund shall be used, as provided below, to pay the Project Costs, and to reimburse the City for the same. Pending such use, amounts on deposit in the Project Fund shall be invested only in Permitted Investments, with interest earnings and other investment income thereon being retained therein. All moneys remaining in the Project Fund upon the completion of the Muni Water Building Project (as determined by the City in its sole discretion with written notice to the Trustee) shall be transferred by the Trustee as hereinafter provided.

The Trustee shall, from time to time, disburse money from the Project Fund to pay the Project Costs for the Muni Water Building Project, as hereinafter provided, in each case promptly after receipt of, and in accordance with, a Written Certificate in the form attached hereto as Appendix D.

In making such payments, the Trustee may rely upon the representations made in the Written Certificate. If for any reason the City should decide prior to the payment of any item in said Written Certificate not to pay such item, then it shall give written n otice of such decision to the Trustee and thereupon the Trustee shall not make such payment, and the Trustee shall have no liability to the City or the designated payee as a result of such nonpayment. In no event shall the Trustee be responsible for the adequacy or due performance of any contracts relating to the Muni Water Building Project or for the use or application of money properly disbursed pursuant to requests made under this Section

3.04. If, after payment by the Trustee of all Written Certificates theretofore tendered to the Trustee under the provisions of this Section 3.04 and after the City has notified the Trustee of the completion of the Muni Water Building Project, there shall remain any balance of money in the Project Fund, all money so remaining (other than a reasonable retainage to pay Project Costs, as determined in the sole discretion of the City with written notice to the Trustee) shall be transferred to the Bond Fund to be applied in accordance with Section 5.02. At such time as no moneys remain in the Project Fund , the Trustee shall close the Project Fund.

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ECTION 3.05. Validity of Bonds. The recital contained in the Bonds that the same are issued under the Constitution and laws of the State of California shall be conclusive evidence of their validity and of compliance with the provisions of law in their issuance.

ARTICLE IV

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EDEMPTION OF 2025A BONDS

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ECTION 4.01. Terms of Redemption.

(a) Optional Redemption. The 2025A Bonds maturing on or before June 1, 20[34] are not subject to optional redemption prior to their respective maturity dates. The 2025A Bonds maturing on or after June 1, 20[35], are subject to redemption at the option of the Authority, as a whole or in part at the election of the Authority , on June 1, 20[34], and on any date thereafter, at a redemption price equal to the principal amount of 2025A Bonds to be redeemed, together with accrued interest thereon to the date fixed for redemption, without premium.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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The Authority must give the Trustee at least 10 days’ written notice of its intention to redeem 2025A Bonds under this subsection (a), and the manner of selecting such 2025A Bonds for redemption from among the maturities thereof, in sufficient time for the Trustee to give notice of such redemption in accordance with Section 4.03.

(b) Special Mandatory Redemption From Insurance or Condemnation Proceeds. The 2025A Bonds are subject to redemption as a whole, or in part on a pro rata basis among maturities, on any date, from any Net Proceeds required to be used for such purpose as provided in Section 5.07, at a redemption price equal to the principal amount thereof plus interest accrued thereon to the date fixed for redemption, without premium.

(c) Mandatory Sinking Fund Redemption. The 2025A Term Bonds are subject to mandatory sinking fund redemption in part prior to their stated maturity date, on each June 1 in accordance with the tables set forth below, respectively, at a redemption price equal to the principal amount thereof called for redemption, plus accrued interest to the redemption date, without premium ; provided, however, that if some but not all of the 2025A Term Bonds have been redeemed under subsections (a) or (b) of this Section, the total amount of all future sinking fund payments shall be reduced by the aggregate principal amount of the 2025A Term Bonds so redeemed, to be allocated among such sinking fund payments on a pro rata basis in integral multiples of $5,000 (as set forth in a schedule provided by the Authority to the Trustee):
2025A Term Bonds Maturing June 1, 20__
Redemption Date
(June 1)
Principal Amount of 2025A
Bonds
to be Redeemed

(maturity)

SECTION 4.02. Selection of 2025A Bonds for Redemption. Whenever provision is made in this Indenture for the redemption of less than all of the Bonds of a single maturity, the Authority shall select the Bonds of that maturity to be redeemed by lot in any manner which the Authority in its sole discretion deems appropriate. For purposes of such selection, the Authority shall treat each Bond as consisting of separate $5,000 portions and each such portion shall be subject to redemption as if such portion were a separate Bond.

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ECTION 4.03. Notice of Redemption; Rescission. The Trustee shall mail notice of redemption of the Bonds by first class mail, postage prepaid, not less than 20 nor more than 60 days before any redemption date, to the respective Owners of any Bonds designated for redemption at their addresses appearing on the Registration Books and to one or more Securities Depositories and to the Municipal Securities Rulemaking B oard. Each notice of redemption shall state the date of the notice, the redemption date, the place or places of redemption, whether less than all of the Bonds (or all Bonds of a single maturity) are to be redeemed, the CUSIP numbers and (in the event that not all Bonds within a maturity are called for redemption) Bond numbers of the Bonds to be redeemed and the maturity or maturities of the Bon ds 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 DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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that on the redemption date there will become due and payable on each of said Bonds the redemption price thereof, and that from and after such redemption date interest thereon shall cease to accrue, and shall require that such Bonds be then surrendered to the Trustee. Neither the failure to receive any notice nor any defect therein shall affect the sufficiency of the proceedings for such redemption or the cessation of accrual of interest from and after the redemption date. Notice of redemption of Bonds shall be given by the Trustee, at the expense of the Authority, for and on behalf of the Authority.

Redemption notices may be conditional . The Authority has the right to rescind any notice of the redemption of Bonds under Section 4.01(a) by written notice to the Trustee on or prior to the dated fixed for redemption. Any notice of redemption shall be cancelled and annulled if for any reason funds will not be or are not available on the date fixed for redemption for the payment in full of the Bonds then called for redemption, and such cancellation shall not constitute a n Event of Default . The Authority and the Trustee have no liability to the Bond Owners or any other party related to or arising from such rescission of redemption. The Trustee shall mail notice of such rescission of redemption in the same manner as the original notice of redemption was sent under this Section. In the event Term Bonds are redeemed in part, the Authority shall deliver a revised sinking fund schedule to the Trustee.

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ECTION 4.04. Partial Redemption of Bonds. Upon surrender of any Bonds redeemed in part only, the Authority shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the expense of the Authority, a new Bond or Bonds of authorized denominations equal in aggregate principal amount to the unredeemed portion of the Bonds surrendered.

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ECTION 4.05. Effect of Redemption . Notice of redemption having been duly given as aforesaid, and moneys for payment of the redemption price of, together with interest accrued to the date fixed for redemption on, including any applicable premium, the Bonds (or portions thereof) so called for redemption being held by the Trustee, on the redemption date designated in such notice, the Bonds (or portions thereof) so called for redemption shall become due and payable, interest on the Bonds so called for redemption shall cease to accrue, said Bonds (or portions thereof) shall cease to be entitled to any benefit or security under this Indenture, and the Owners of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof.

All Bonds redeemed under the provisions of this Article shall be canceled by the Trustee upon surrender thereof and destroyed in accordance with the retention policy of the Trustee then in effect.

ARTICLE V

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EVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND

INTEREST

SECTION 5.01. Security for the Bonds; Bond Fund.

(a) Pledge of Revenues and Other Amounts. Subject only to the provisions of this Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Revenues and all amounts (including proceeds of the sale of the Bonds) held in any fund or account established under this Indenture (other than the Costs of Issuance Fund and the Project Fund) are hereby pledged to secure the payment of the principal of and interest and premium (if any) on the Bonds in accordance with their terms and the provisions of this Indenture . Said pledge constitutes a lien on and security interest in the Revenues and such amounts and shall attach, be perfected and be DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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valid and binding from and after the Closing Date, without the need for any physical delivery thereof or further act.

(b) Assignment to Trustee. Under the Assignment Agreement, the Authority has transferred to the Trustee all of the rights of the Authority in the Lease (other than the rights of the Authority under Sections 4.5, 5.1 1, 7.3 and 8.4 thereof and its rights to give approvals and consents thereunder). The Trustee is entitled to collect and receive all of the Revenues, and any Revenues collected or received by the Authority shall be deemed to be held, and to have been collected or received, by the Authority as the agent of the Trustee and shall forthwith be paid by the Authority to the Trustee. The Trustee is also entitled to and may, subject to the provisions of Article VIII, take all steps, actions and proceedings which the Trustee determines to be reasonably necessary in its judgment to enforce, either jointly with the Authority or separately, all of the rights of the Authority and all of the obligations of the City under the Lease.

(c) Deposit of Revenues in Bond Fund . All Revenues shall be promptly deposited by the Trustee upon receipt thereof in a special fund designated as the “Bond Fund” which the Trustee shall establish, maintain and hold in trust; except that all moneys received by the Trustee and required hereunder or under the Lease to be deposited in the Redemption Fund or the Insurance and Condemnation Fund shall be promptly deposit ed in such funds . All Revenues deposited with the Trustee shall be held, disbursed, allocated and applied by the Trustee only as provided in this Indenture.

Any surplus remaining in the Bond Fund, after payment in full of (i) the principal of and interest on the Bonds or provision therefore under Article X, and (ii) any applicable fees and expenses to the Trustee, shall be withdrawn by the Trustee and remitted to the City at the written Request of the City.

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ECTION 5.02. Allocation of Revenues. On or before each Interest Payment Date, the Trustee shall transfer from the Bond Fund and deposit into the following respective accounts and subaccounts (each of which the Trustee shall establish and maintain within the Bond Fund), the following amounts in the following order of priority:

(a) Deposit to Interest Account. The Trustee shall deposit in the Interest Account an amount required to cause the aggregate amount on deposit in the Interest Account to be at least equal to the amount of interest becoming due and payable on such Interest Payment Date on all Bonds then Outstanding.

(b) Deposit to Principal Account. The Trustee shall deposit in the Principal Account an amount required to cause the aggregate amount on deposit in the Principal Account to equal the principal amount of the Bonds coming due and payable on such Interest Payment Date , including principal of any 2025A Term Bond s payable as a result of mandatory sinking fund redemption under Section 4.01(c) and any other Term Bonds payable as a result of mandatory sinking fund redemption under a Supplemental Indenture.

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ECTION 5.03. Application of Interest Account . All amounts in the Interest Account shall be used and withdrawn by the Trustee solely for the purpose of paying interest on the Bonds as it comes due and payable (including accrued interest on any Bonds purchased or redeemed prior to maturity).

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ECTION 5.04. Application of Principal Account . All amounts in the Principal Account shall be used and withdrawn by the Trustee solely to pay the principal amount of the Bonds at their respective maturity dates , including principal of any 2025A Term Bond s payable as a result of DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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mandatory sinking fund redemption under Section 4.01( c) and any other Term Bonds payable as a result of mandatory sinking fund redemption under a Supplemental Indenture.

SECTION 5.05. Application of Redemption Fund. The Trustee shall establish and maintain the Redemption Fund, into which the Trustee shall deposit a portion of the Revenues received, in accordance with a Written Request of the Authority, amounts in which shall be used and withdrawn by the Trustee solely for the purpose of paying the principal and premium (if any) of the Bonds to be redeemed under Section 4.01, other than the principal of any 2025A Term Bonds payable as a result of mandatory sinking fund redemption under Section 4.01(c) and any other Term Bonds payable as a result of mandatory sinking fund redemption under a Supplemental Indenture; provided, however, that at any time prior to the selection of Bonds for redemption, the Trustee may apply such amounts to the purchase of Bonds at public or private sale, when and at such prices (including brokerage and other charges, but excluding accrued interest, which is payable from the Interest Account) as shall be directed under a Written Request of the Authority, except that the purchase price (exclusive of accrued interest) may not exceed the redemption price then applicable to the Bonds . The Trustee shall be entitled to conclusively rely on any Written Request of the Authority received under this Section 5.0 5, and shall be fully protected in relying thereon.

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ECTION 5.06. Insurance and Condemnation Fund.

(a) Establishment of Fund. Upon the receipt of proceeds of insurance or eminent domain with respect to the Leased Property, the Trustee shall establish and maintain an Insurance and Condemnation Fund, to be held and applied as hereinafter set forth in this Section 5.06.

(b) Application of Insurance Proceeds. Any Net Proceeds of insurance against accident to or destruction of the Leased Property collected by the City or the Authority in the event of any such accident or destruction shall be paid to the Trustee under Section 6.1 of the Lease and deposited by the Trustee promptly upon receipt thereof in the Insurance and Condemnation Fund . If the City fails to determine and notify the Trustee in writing of its determination, within 180 days following the date of such deposit, to replace, repair, restore, modify or improve the Leased Property which has been damaged or destroyed, then such Net Proceeds shall be promptly transferred by the Trustee to the Redemption Fund and applied to the redemption of Bonds under Section 4.01(b). Notwithstanding the foregoing sentence, however, if the Leased Property is damaged or destroyed in full, the Net Proceeds of such insurance shall be used by the City to rebuild or replace the Leased Property (as provided in Section 3.2 of the Lease) if such proceeds are not sufficient to redeem Outstanding Bonds equal in aggregate principal amount to the unpaid Lease Payments allocable to the Leased Property . All proceeds deposited in the Insurance and Condemnation Fund and not so transferred to the Redemption Fund shall be applied to the prompt replacement, repair, restoration, modification or improvement of the damaged or destroyed portions of the Leased Prop erty by the City, upon receipt of a Writt en Request of the City which: (i) states with respect to each payment to be made (A) the requisition number, (B) the name and address of the person to whom payment is due, (C) the amount to be paid and (D) that each obligation mentioned therein has been pr operly incurred, is a proper charge against the Insurance and Condemnation Fund and has not been the basis of any previous withdrawal; and (ii) specifies in reasonable detail the nature of the obligation. Any balance of the proceeds remaining after such work has been completed as certified by the City under a Written Certificate to the Trustee shall be paid to the City. The Trustee shall be entitled to conclusively rely on any Written Request or Written Certificate received under this subsection (b) of this Section 5.06 and in each case, shall be fully protected in relying thereon.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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(c) Application of Eminent Domain Proceeds . If all or any part of the Leased Property is taken by eminent domain proceedings (or sold to a government threatening to exercise the power of eminent domain) the Authority shall deposit or cause to be deposited with the Trustee the Net Proceeds therefrom, which the Trustee shall deposit in the Insurance and Condemnation Fund and which shall be applied and disbursed by the Trustee as follows:

(i) If the City has not given written notice to the Trustee, within 180 days following the date on which such Net Proceeds are deposited with the Trustee, of its determination that such Net Proceeds are needed for the replacement of the Leased Property or such portion thereof, the Trustee shall transfer such Net Proceeds to th e Redemption Fund to be applied towards the redemption of the Bonds under Section 4.01(b).

(ii) If the City has given written notice to the Trustee, within 180 days following the date on which such Net Proceeds are deposited with the Trustee, of its determination that such Net Proceeds are needed for replacement of the Leased Property or such portion thereof, the Trustee shall pay to the City, or to its order, from said proceeds such amounts as the City may expend for such replacement, upon the filing of Written Requisitions of the City as agent for the Authority. In each case, the Trustee may conclusively rely upon any notice received under this subsection (c)(ii) of this Section and is protected in relying thereon.

(d) Reliance on Independent Advice . In making any such determination whether to repair, replace or rehabilitate the Leased Property under this Section 5.06, the City may obtain, but is not required to obtain, at its expense, the report of an independent engineer or other independent professional consultant, a copy of which must be filed with the Trustee. The Trustee shall have no duty to review or examine such report. Any such determination by the City is final.

(e) Excess Net Proceeds . In the event there are Net Proceeds remaining after the replacement, repair, rehabilitation, restoration or improvement, if any, to or of the Leased Property, and if the City delivers to the Trustee a Written Certificate of the City to the effect that a fter such replacement, repair, rehabilitation, restoration or improvement, if any, the fair rental value is at least equal to the Lease Payments in any Rental Period, such remaining Net Proceeds shall be paid to the City to be used for any lawful purpose. If the City cannot deliver the Written Certificate of the City described in the preceding sentence, the Trustee shall transfer such Net Proceeds to the Redemption Fund to be applied towards the redemption of the Bonds under Section 4.01(b).

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ECTION 5.07. Investments. All moneys in any of the funds or accounts established with the Trustee under this Indenture shall be invested by the Trustee solely in Permitted Investments . Such investments shall be directed by the Authority in a Written Request of the Authority filed with the Trustee at least 2 Business Days in advance of the making of such investments. In the absence of any such directions from the Authority, the Trustee shall invest any such moneys in Permitted Investments which constitute money market funds; provided, however, that any such investment shall be made by the Trustee only if, prior to the date on which such investment is to be made, the Trustee shall have received a Written Request of the Authority specifying a specific money market fund and, if no such Written Request of the Authority is so received, the Trustee shall hold such moneys unin vested.

Permitted Investments purchased as an investment of moneys in any fund shall be deemed to be part of such fund or account . To the extent Permitted Investments are registrable, such Permitted Investments must be registered in the name of the Trustee.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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All interest or gain derived from the investment of amounts in any of the funds or accounts established hereunder shall be deposited in the Bond Fund. For purposes of acquiring any investments hereunder, the Trustee may commingle funds held by it hereunder. The Trustee or any of its affiliates may act as principal or agent in the acquisition or disposition of any investment and may impose its customary charges therefor. The Trustee shall incur no liability for losses arising from any investments made under this Section 5.07.

Subject to applicable law, the Trustee may make any investments hereunder through its own bond or investment department or trust investment department, or those of its parent or any affiliate .

The Trustee or any of its affiliates may act as sponsor, advisor or manager to the investment provider in connection with any investments made by the Trustee hereunder. The Trustee is hereby authorized, in making or disposing of any investment permitted by this Section, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or is dealing as a principal for its own account . The Trustee may, from time to time, provide the City and the Authority with a list of investments that are available on the Trustee’s investment platform, but the Trustee will not give investment advice to the City or the Authority, and the City or the Authority may direct the Trustee to purchase investments that are not included on the list provided by the Trustee . The Trustee shall be entitled to rely conclusively on the Authority’s investment direction as to the suitability and legality of the directed investments.

The Trustee shall furnish the Authority monthly cash transaction statements which include detail for all investment transactions effected by the Trustee or brokers selected by the Authority. Upon the Authority’s election, such statements will be delivered via the Trustee’s Online Trust and Custody service and upon electing such service, paper statements will be provided only upon request. The Authority waives the right to receive brokerage confirmations of security transactions effected by the Trustee as th ey occur, to the extent permitted by law. The Authority further understands that trade confirmations for securities transactions effected by the Trustee will be available upon request and at no additional cost and other trade confirmations may be obtained from the applicable broker.

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ECTION 5.08. Valuation and Disposition of Investments. For the purpose of determining the amount in any fund or account hereunder, all investments of amounts deposited in any fund or account created by or under this Indenture shall be valued by the Trustee, such valuation to be performed not less frequently than semiannually on or before each March 15 and September 15. In determining fair market value, the Trustee may use and rely conclusively on any generally recognized securities pricing service available to it (including brokers and dealers in securities).

The Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of the investments, written instructions, or any other documents in connection therewith, and will not be regarded as making nor be required to make, any representations thereto. The Trustee may sell, but not to itself, or present for redemption any Permitted Investment so purchased by the Trustee whenever it is necessary in order to provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund to which such Permitted Investment is credited, and the Trustee shall not be liable or responsible for any loss resulting from any such Permitted Investment.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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ARTICLE VI

COVENANTS OF THE AUTHORITY

SECTION 6.01. Punctual Payment. The Authority shall punctually pay or cause to be paid the principal of and interest and premium (if any) on all the Bonds in strict conformity with the terms of the Bonds and of this Indenture, according to the true intent and meaning thereof, but only out of the Revenues and other amounts pledged for such payment as provided in this Indenture.

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ECTION 6.02. Extension of Payment of Bonds . The Authority shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase of such Bonds or by any other arrangement, and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Indenture, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon which have not been so extended . Nothing in this Section 6.02 limits the right of the Authority to issue Bonds for the purpose of refunding any Outstanding Bonds, and such issuance does not constitute an extension of maturity of the Bonds.

SECTION 6.03. Against Encumbrances. The Authority shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under this Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Indenture and as permitted under Section 6.06. Subject to this limitation, the Authority expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, and reserves the right to issue other obligations for such purposes.

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ECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment. The Authority is duly authorized under law to issue the Bonds and to enter into this Indenture and to pledge and assign the Revenues and other amounts purported to be pledged and assigned, respectively, under this Indenture and under the Assignment Agreement i n the manner and to the extent provided in this Indenture and the Assignment Agreement. The Bonds and the provisions of this Indenture are and will be the legal, valid and binding special obligations of the Authority in accordance with their terms, and the Authority and the Trustee shall at all times, subject to the provisions of Article VIII and to the extent permitted by law, defend, preserve and protect said pledge and assignment of Revenues and other assets and all the rights of the Bond Owners under th is Indenture against all claims and demands of all persons whomsoever.

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ECTION 6.05. Accounting Records. The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with corporate industry standards, in which complete and accurate entries shall be made of all transactions made by it relating to the proc eeds of Bonds and all funds and accounts established under this Indenture. The Trustee shall make such books of record and account available for inspection by the Authority and the City, during business hours, upon reasonable notice, and under reasonable circumstances.

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ECTION 6.06. Limitation on Additional Obligations. The Authority covenants that no additional bonds, notes or other indebtedness shall be issued or incurred which are payable out of the Revenues in whole or in part, other than the 2025A Bonds and the Additional Bonds.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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SECTION 6.07. Tax Covenants. Notwithstanding any other provision of the Indenture, absent an opinion of Bond Counsel that the exclusion from gross income of the interest on the 2025A Bonds will not be adversely affected for federal income tax purposes, the Authority covenants to comply with all applicable requirements of the Code necessary to preserve such exclusion from gross income with respect to the 2025A Bonds and specifically covenant, without limiting the generality of the foregoing, as follows:

(a) No Arbitrage. The Authority will not take, or permit or suffer to be taken by the Trustee or otherwise, any action with respect to the proceeds of the 2025A Bonds which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of issuance of the 2025A Bonds would have caused the 2025A Bonds to be “arbitrage bonds” within the meaning of section 148 of the Code.

(b) Rebate Requirement. The Authority will take any and all actions necessary to assure compliance with section 148(f) of the Code, relating to the rebate of excess investment earnings, if any, to the federal government, to the extent that such section is applicable to the 2025A Bonds.

(c) Private Activity Bond Limitation . The Authority will assure that the proceeds of the 2025A Bonds are not so used as to cause the 2025A Bonds to satisfy the private business tests of section 141(b) of the Code or the private loan financing test of section 141(c) of the Code.

(d) Federal Guarantee Prohibition . The Authority will not take any action or permit or suffer any action to be taken if the result of such action would be to cause any of the 2025A Bonds to be “federally guaranteed” within the meaning of section 149(b) of the Code.

(e) Maintenance of Tax-Exemption. The Authority will take all actions necessary to assure the exclusion of interest on the 2025A Bonds from the gross income of the Owners of the 2025A Bonds to the same extent as such interest is permitted to be excluded from gross income under the Code as in effect on the date of issuance of the 2025A Bonds.

(f) Record Retention . The Authority will retain its records of all accounting and monitoring it carries out with respect to the 2025A Bonds for at least 3 years after the 2025A Bonds mature or are redeemed (whichever is earlier); however, if the 2025A Bonds are redeemed and refunded, the Authority will retain its records of accounting and monitoring at least 3 years after the earlier of the maturity or redemption of the obligations that refunded the 2025A Bonds.

(g) Compliance with Tax Certificate . The Authority will comply with the provisions of the Tax Certificate with respect to the 2025A Bonds, which are incorporated herein as if fully set forth herein.

The covenants of this Section 6.07 will survive payment in full or defeasance of the 2025A Bonds. This Section and the covenants set forth herein shall not be applicable to, and nothing contained herein shall be deemed to prevent the Authority from causing the Trustee to issue revenue bonds or to execute and deliver contracts payable on a parity wit h the 2025 Bonds, the interest with respect to which has been determined by an opinion of Bond Counsel to be subject to federal income taxation.

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ECTION 6.08. Enforcement of Lease. The Trustee shall promptly collect all amounts (to the extent any such amounts are available for collection) due from the City under the Lease. Subject to the provisions of Article VII, the Trustee may enforce, and take all steps, actions and proceedings which DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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are determined to be reasonably necessary for the enforcement of all of its rights thereunder as assignee of the Authority and for the enforcement of all of the obligations of the City under the Lease.

SECTION 6.09. Waiver of Laws. The Authority shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension law now or at any time hereafter in force that may affect the covenants and agreements contained in this Indenture or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the Authority to the extent permitted by law.

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ECTION 6.10. Further Assurances. The Authority will make, execute and deliver any and all such further indentures, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Indenture and for the better assuring and confirming unto the Owners of the Bonds of the rights and benefits provided in this Indenture.

ARTICLE VII

EVENTS OF DEFAULT AND REMEDIES

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ECTION 7.01. Events of Default. The following events constitute Events of Default hereunder:

(a) Failure to pay any installment of the principal of any Bonds when due, whether at maturity as therein expressed, by proceedings for redemption, by acceleration, or otherwise.

(b) Failure to pay any installment of interest on the Bonds when due.

(c) Failure by the Authority to observe and perform any of the other covenants, agreements or conditions on its part contained in this Indenture or in the Bonds, if such failure has continued for a period of 30 days after written notice thereof, specifying such failure and requiring the same to be remedied, has been given to the Authority by the Trustee; provided, however, if in the reasonable opinion of the Authority the failure stated in the notice can be corrected, but not within such 30-day period, such failure shall not constitute an Event of Default if the Authority institutes corrective action within such 30 -day period and thereafter diligently and in good faith cures the failure in a reasonable period of time, which period shall end 180 days after the delivery of such default notice.

(d) The commencement by the Authority of a voluntary case under Title 11 of the United States Code or any substitute or successor statute.

(e) The occurrence and continuation of an event of default under and as defined in the Lease.

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ECTION 7.02. Remedies Upon Event of Default. If any Event of Default occurs, then, and in each and every such case during the continuance of such Event of Default, the Trustee may, and at the written direction of the Owners of a majority in aggregate principal amount of the Bonds at the time Outstanding shall, in each case, upon receipt of indemnification satisfactory to Trustee against the costs, expenses and liabilities (including fees and expenses of counsel) to be incurred in connection with such action, upon notice in writing to the Authority, declare the principal of all of the Bonds then DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Bonds contained to the contrary notwithstanding.

Any such declaration is subject to the condition that if, at any time after such declaration and before any judgment or decree for the payment of the moneys due shall have been obtained or entered, the Authority deposits with the Trustee a sum sufficient to pay all the principal of and installments of interest on the Bonds payment of which is overdue, with interest on such overdue principal at the rate borne by the respective Bonds to the extent permitted by law, and the reasonable fees, charges and expenses (including those of its legal counsel, including the allocated costs of internal attorneys) of the Trustee, and any and all other Events of Default actually 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) have been made good or cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate has been made therefor, then, and in every such case, the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, by written notice to the Authority, the City and the Trustee, may, on behalf of the Owners of all of the Bonds, rescind and annul such declaration and its consequences and waive such Event of Default; but no suc h rescission and annulment shall extend to or shall affect any subsequent Event of Default, or shall impair or exhaust any right or power consequent thereon.

Nothing herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Bondholder any plan of reorganization, arrangement, adjustment, or composition affecting the Bonds or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Bondholder in any such proceeding without the approval of the Bondholders so affected.

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ECTION 7.03. Application of Revenues and Other Funds After Default. If an Event of Default occurs and is continuing, all Revenues and any other funds then held or thereafter received by the Trustee under any of the provisions of this Indenture shall be applied by the Trustee in the following order of priority:

(a) To the payment of reasonable fees, charges and expenses of the Trustee (including reasonable fees and disbursements of its legal counsel including outside counsel and the allocated costs of internal attorneys) incurred in and about the performance of its powers and duties under this Indenture;

(b) To the payment of the principal of and interest then due on the Bonds (upon presentation of the Bonds to be paid, and stamping or otherwise noting thereon of the payment if only partially paid, or surrender thereof if fully paid) in accordance with the provisions of this Indenture, as follows:

First: To the payment to the persons entitled thereto of all installments of interest then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, to the persons entitled thereto, without any discrimination or preference;

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Second: To the payment to the persons entitled thereto of the unpaid principal of any Bonds which shall have become due, whether at maturity or by acceleration or redemption, with interest on the overdue principal at the rate borne by the respective Bonds (to the extent permitted by law), and, if the amount available shall not be sufficient to pay in full all the Bonds, together with such interest, then to the payment thereof ratably, according to the amounts of principal due on such date to the persons entitled thereto, without any discrimination or preference; and

SECTION 7.04. Trustee to Represent Bond Owners . The Trustee is hereby irrevocably appointed (and the successive respective Owners of the Bonds, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) as trustee and true and lawful attorney- in- fact of the Owners of the Bonds for the purp ose of exercising and prosecuting on their behalf such rights and remedies as may be available to such Owners under the provisions of the Bonds, this Indenture and applicable provisions of any law. All rights of action under this Indenture or the Bonds may be prosecuted and enforced by the Trustee without the possession of any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the benefit and protection of all the Owners of such Bonds, subject to the provisions of this Indenture.

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ECTION 7.05. Limitation on Bond Owners’ Right to Sue. Notwithstanding any other provision hereof, no Owner of any Bonds has the right to institute any suit, action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under this Indenture, the Lease or any other applicable law with respect to such Bonds, unless (a) such Owner has given to the Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a majority in aggregate principal amount of the Bonds then Outstanding have requested the Trustee in writing to exercise the powers hereinbefore granted or to institute such suit, action or proceeding in its own name; (c) such Owner or Owners have tendered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee has failed to comply with such request for a period of 60 days after such written request has been received by, and said tender of indemnity has been made to, the Trustee; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60 day period by the Owners of a majority in aggregate principal amount of the Bonds then Outstanding.

Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy hereunder or under law; it being understood and intended that no one or more Owners of Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Indenture or the rights of any other Owners of Bonds, or to enforce any right under the Bonds, this Indenture, the Lease or other applicable law with respect to the Bonds, except in the manner herein provided, and that all proceedings at law or in equity to enforce any such right shall be instituted, had and maintained in the manner herein provided and for the benef it and protection of all Owners of the Outstanding Bonds, subject to the provisions of this Indenture.

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ECTION 7.06. Absolute Obligation of Authority. Nothing herein or in the Bonds contained affects or impairs the obligation of the Authority, which is absolute and unconditional, to pay the principal of and interest and premium (if any) on the Bonds to the respective Owners of the Bonds at their respective dates of maturity, or upon acceleration or call for redemption, as herein provided, but only out of the Revenues and other assets herein pledged therefor, or affect or impair the right of such

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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Owners, which is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds.

SECTION 7.07. Termination of Proceedings. In case any proceedings taken by the Trustee or by any one or more Bond Owners on account of any Event of Default have been discontinued or abandoned for any reason or have been determined adversely to the Trustee or the Bond Owners, then in every such cas e the Authority, the Trustee and the Bond Owners, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and duties of the Authority , the Trustee and the Bond Owners shall continue as though no such proceedings had been taken.

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ECTION 7.08. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the Trustee, to the Owners of the Bonds is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise.

SECTION 7.09. No Waiver of Default. No delay or omission of the Trustee or any Owner of the Bonds to exercise any right or power arising upon the occurrence of any default or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such default or Eve nt of Default or an acquiescence therein; and every power and remedy given by this Indenture to the Trustee or to the Owners of the Bonds may be exercised from time to time and as often as may be deemed expedient by the Trustee or the Bond Owners.

SECTION 7.10. Notice to Bond Owners of Default . Immediately upon becoming aware of the occurrence of an Event of Default, but in no event later than 5 Business Days following becoming aware of such occurrence, the Trustee shall promptly give written notice thereof by first class mail, postage prepaid, to the Owner of each Outstanding Bond, unless such Event of Default has been cured before the giving of such notice; provided, however that except in the case of an Event of Default described in Sections 7.01(a) or 7.01(b), the Trustee may elect not to give such notice to the Bond Owners if and so long as the Trustee determines that it is in the best interests of the Bond Owners not to give such notice.

ARTICLE VIII

THE TRUSTEE

SECTION 8.01. Appointment of Trustee . Wilmington Trust, National Association is hereby appointed Trustee by the Authority for the purpose of receiving all moneys required to be deposited with the Trustee hereunder and to allocate, use and apply the same as provided in this Indenture . The Authority will maintain a Trustee which is qualified under the provisions of this Article VIII, so long as any Bonds are Outstanding.

SECTION 8.02. Acceptance of Trusts; Removal and Resignation of Trustee. The Trustee hereby accepts the express trusts imposed upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the following express terms and conditions:

(a) The Trustee shall, prior to an Event of Default, and after the curing or waiver of all Events of Default which may have occurred, perform such duties and only such duties as are expressly and specifically set forth in this Indenture and no

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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implied duties or covenants shall be read into this Indenture against the Trustee.

If an Event of Default has occurred (which has not been cured), the Trustee shall exercise such of the rights and powers vested in it by hereunder, and use the degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(b) The Authority may remove the Trustee upon 30 days’ prior notice, unless an Event of Default has occurred and is then continuing, and shall remove the Trustee (a) if at any time requested to do so by the Owners of a majority in aggregate principal amount o f the Bonds then Outstanding (or their attorneys duly authorized in writing) or (b) if at any time the Trustee ceases to be eligible in accordance with Section 8.02, or becomes incapable of acting, or is adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property is appointed, or any public officer takes control or charge of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation.

(c) The Trustee may at any time resign and be discharged from its duties and obligations hereunder at any time by giving no less than 30 days’ prior written notice of such resignation to the Authority and the City, specifying the date when such resignation shall take effect and by giving the Bond Owners notice of such resignation by mail at the addresses shown on the Registration Books.

(d) Any removal or resignation of the Trustee and appointment of a successor Trustee shall become effective upon acceptance of appointment by the successor Trustee. In the event of the removal or resignation of the Trustee under subsections (b) or (c), respectively, the Authority shall promptly appoint a successor Trustee . If no successor Trustee has been appointed and accepted appointment within 90 days of giving notice of removal or notice of resignation as aforesaid, the retiring Trustee shall be entitled, at its sole discretion (at the sole cost and expense of the Authority, including with respect to reasonable attorneys’ fees and expenses) to petition any court of competent jurisdiction for the appointment of a successor Trustee or for other appropriate relief, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee or order such other appropriate relief, and any such resulting appointment or relief shall be binding upon all of the parties.

Any successor Trustee appointed under this Indenture, must signify its acceptance of such appointment by executing and delivering to the Authority, to its predecessor Trustee a written acceptance thereof, and after payment by the Authority of all unpaid fe es and expenses of the predecessor Trustee, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee herein. At the Written Request of the Authority or the request of the successor Trustee, such predecessor Trustee shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fu lly and certainly vesting in and confirming to such successor Trustee all the right, title and interest of such predecessor Trustee in and to the Leased Property held by such predecessor

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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Trustee under this Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any money or other property subject to the trusts and conditions herein set forth. Upon request of the successor Trustee, the Authority shall execute and deliver any and all instruments as may be reasonably required for more fully and certainly vesting in and confirming to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and obligations.

Upon acceptance of appoint ment by a successor Trustee as provided in this subsection, the Authority shall promptly mail or cause the successor trustee to mail a notice of the succession of such Trustee to the trusts hereunder to each rating agency which is then rating the Bonds and to the Bond Owners at the addresses shown on the Registration Books . If the Authority fails to mail such notice within 15 days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expe nse of the Authority.

(e) Any Trustee appointed under this Indenture shall be a corporation or association organized and doing business under the laws of any state or the United States of America or the District of Columbia, shall be authorized under such laws to exercise corporate trust powers, shall have (or, in the case of a corporation or association that is a member of a bank holding company system, the related bank holding company has) a combined capital and surplus of at least $50,000,000, and shall be subject to supervis ion or examination by a federal or state agency, so long as any Bonds are Outstanding . If such corporation or association publishes a report of condition at least annually under law or to the requirements of any supervising or examining agency above referred to, then for the purpose of this subsection (e), the combined capital and surplus of such corporation or association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If the Trustee at any time ceases to be eligible in accordance with the provisions of this subsection (e), the Trustee shall resign immediately in the manner and with the effect specified in this Section.

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ECTION 8.03. Merger or Consolidation . Any bank, national banking association, federal savings association, or trust company into which the Trustee may be merged or converted or with which it may be consolidated or any bank, national banking association, federal savings association, or trust company resulting from any merger, conversion or consolidation to which it shall be a party or any bank, national banking association, federal savings association, or trust company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such bank, national banking association, federal savings association, or trust company shall be eligible under subsection (e) of Section 8.02 shall be the successor to such Trustee, without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding.

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ECTION 8.04. Liability of Trustee.

(a) The recitals of facts herein and in the Bonds contained shall be taken as statements of the Authority, and the Trustee shall not assume responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this In denture, the Bonds or the Lease (including any right to receive moneys thereunder or the value of or title to the premises upon which the Leased Property is located), nor shall the Trustee incur any responsibility in respect thereof, other than as

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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expressly stated herein in connection with the respective duties or obligations of Trustee herein or in the Bonds assigned to or imposed upon it . The Trustee shall, however, be responsible for its representations contained in its certificate of authentication on the Bonds . The Trustee shall not be liable for any acts or omissions, except for such losses, damages or expenses which have been finally adjudicated by a court of competent jurisdiction to have directly resulted from and in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct . The Trustee undertakes to perform such duties and only such duties as are specifically and expressly set forth in this Indenture. These duties shall be deemed purely ministerial in nature, and the Trustee shall not be liable except for the performance of such duties, and no implied covenants or obligations shall be read into this Indenture against the Trustee. The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and, with respect to such permissive rights, the Trustee shall not be answerable for other than its negligence or willful misconduct. The Trustee may become the Owner of Bonds with the same rights it would have if it were not Trustee, and, to the extent permitted by law, may act as depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Bond Owners, whether or not such committee shall represent the Owners of a majority in principal amount of the Bonds then Outstanding.

(b) The Trustee is not liable for any action taken, or error of judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been negligent in ascertaining the pertinent facts.

(c) The Trustee is not liable with respect to any action taken or omitted to be taken by it in accordance with the direction of the Owners of a majority 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 exercising any trust or power conferred upon the Trustee under this Indenture or assigned to it under the Assignment Agreement.

(d) The Trustee is not liable for any action taken by it and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.

(e) The Trustee shall not be deemed to have knowledge of any Event of Default hereunder, or any other event which, with the passage of time, the giving of notice, or both, would constitute an Event of Default hereunder unless and until a responsible corporate trust officer shall have actual knowledge thereof, or a responsible corporate trust officer shall have received written notice thereof at its Office from the City, the Authority or the Owners of at least 25% in aggregate principal amount of the Outstanding Bonds. Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or inquire as to the performance or observance by the Authority or the City of any of the terms, conditions, covenants or agreements herein, under the Lease or the Bonds or of any of the documents executed in connection with the Bonds, or as to the existence of a default or an Event of Default or an event which would, with the giving of notice, the passage of time, or both, constitute an Event of Default.

The Trustee is not responsible for the validity, effectiveness or priority of any collateral given to or held by it . Without limiting the generality of the foregoing, the Trustee shall not be required to ascertain or inquire as to the performance or observance by the City or the Authority of the terms, conditions, covenants or agreements set forth in the Lease, other than the covenants of the City to make Lease Payments to the Trustee when due and to file with the Trustee when due, such reports and certifications as the City is required to file with the Trustee thereunder.

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(f) No provision of this Indenture requires the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.

(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents, receivers or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, rec eiver or attorney appointed with due care by it hereunder.

(h) The Trustee has no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Bond Owners under this Indenture, unless such Owners have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities (including but not limited to fees and expenses of its attorneys), including, without limitations, any liability arising under federal, state or local environmental laws which might be incurred by it in com pliance with such request or direction . No permissive power, right or remedy conferred upon the Trustee hereunder shall be construed to impose a duty to exercise such power, right or remedy.

(i) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee is subject to the provisions of Section 8.02(a), this Section 8.04 and Section 8.0 5, and shall be applicable to the assignment of any rights under the Lease to the Trustee under the Assignment Agreement.

(j) The Trustee is not accountable to anyone for the subsequent use or application of any moneys (including the proceeds of the Bonds) which are released or withdrawn in accordance with the provisions hereof.

(k) The Trustee makes no representation or warranty, expressed or implied as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose fo r the use contemplated by the Authority or the City of the Leased Property. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Lease or this Indenture for the existence, furnishing or use of the Leased Property.

(l) The Trustee has no responsibility with respect to any information, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds.

(m) The Trustee is authorized and directed to execute the Assignment Agreement in its capacity as Trustee hereunder.

(n) The Trustee shall have the right to accept and act upon Written Instructions given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Authority and/or City shall provide to the Trustee an incumbency certificate listing the Authorized Representatives and containing specimen signatures of such Authorized Representatives, which incumbency certificate shall be amended by the Authority and/or the City whenever a person is to be added or deleted from the listing . If the Authority and/or City elects to give the Trustee Written Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Written Instructions, the Trustee’s reasonable understanding of such Written Instructions shall be deemed

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controlling. The Authority and City understand and agree that the Trustee cannot determine the identity of the actual sender of such Written Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer . The Authority and City shall be responsible for ensuring that only Authorized Representatives transmit such Written Instructions to the Trustee and that the Authority, City and all Authorized Representatives are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Authority and/or City . The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Written Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Authority and City agree: (i) to assume all risks arising out of the use of Electronic Means to submit Written Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Written Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to the Trustee and that there may be more secure methods of transmitting Written Instructions than the method(s) selected by the Authority and City; (iii) that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.

(o) In acting or omitting to act pursuant to the Assignment Agreement, the Lease or the Site Lease, the Trustee shall be entitled to all of the rights, immunities and indemnities accorded to it under this Indenture, including, but not limited to, this Article VIII. Notwithstanding the effective date of this Indenture or anything to the contrary in this Indenture, the Trustee shall have no liability or responsibility for any act or event relating to this Indenture which occurs prior to the date the Trustee formally executes this Indenture and commences acting as Trustee hereunder.

(p) The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care. Force majeure shall include, but not be limited to, acts of God, terrorism, war, riots, strikes (excluding strikes or work stopages of Trustee’s employees), fire, floods, earthquakes, epidemics, quarantine restrictions or other similar occurrences . The Trustee shall give prompt notice in writing to the Authority that its performance has been prevented or delayed due to a force majeure event and use commercially reasonable efforts to overcome the effect of the circumstance as quickly as possible. The Trustee shall promptly resume performance when the force majeure is avoided, removed, or cured.

(q) Neither the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Authority, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee may assume performance by all such persons of their respective obligations. The Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person.

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ECTION 8.05. Right to Rely on Documents. The Trustee shall be protected and shall incur no liability in acting or refraining from acting in reliance upon any notice, resolution, request, consent, order, judgment, decree, certificate, report, opinion, bonds, debentures, other evidence of indebtedness,

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein . The Trustee is under no duty to make any investigation or inquiry as to any statements contained or matter referred to in any paper or document but may accept and conclusively rely upon the same as conclusive evidence of the truth and accuracy of any such statement or matter and shall be fully protected in relying thereon. The Trustee may consult with professionals, including counsel, who may be counsel of or to the Authority, with regard to legal questions, and the opinion of such counsel or other professionals shall be full and complete authorization and protection in respect of any action taken , omitted to be taken , or suffered by it hereunder and in accordance therewith. The Trustee may act through attorneys or agents and shall not be responsible for the acts or omissions of any such attorney or agent appointed with due care.

The Trustee may treat the Owners of the Bonds appearing in the Registration Books as the absolute owners of the Bonds for all purposes and the Trustee shall not be affected by any notice to the contrary.

Whenever in the administration of the trusts imposed upon it by this Indenture the Trustee deems it necessary or desirable that a matter be proved or established prior to taking, omitting to take, or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Written Certificate, Written Request or Written Requisition of the Aut hority or the City, and such Written Certificate, Written Request or Written Requisition shall be full warrant to the Trustee for any action taken or suffered under the provisions of this Indenture in reliance upon such Written Certificate, Written Request or Written Requisition, and the Trustee shall be fully protected in relying thereon, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may deem reasonable.

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ECTION 8.06. Preservation and Inspection of Documents . All documents received by the Trustee under the provisions of this Indenture shall be retained in its respective possession and in accordance with its retention policy then in effect and shall, upon reasonable notice to Trustee, be subject to the inspection of the Authority, the City and any Bond Owner, and their agents and representatives duly authorized in writing, during business hours and under reasonable conditions as agreed to by the Trustee.

SECTION 8.07. Compensation and Indemnification . The Authority shall pay to the Trustee from time to time, on demand, the compensation for all services rendered under this Indenture and also all reasonable expenses, advances (including any interest on advances), charges, legal (including outside counsel and the allocated costs of internal attorneys) and consulting fees and other disbursements, incurred in and about the performance of its powers and duties under this Indenture.

The Authority shall indemnify the Trustee, its officers, directors, employees and agents against any cost, loss, liability, suit, claim, damages, judgment or expense whatsoever (including but not limited to fees and expenses of its attorneys) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust and this Indenture, the Assignment Agreement, the Site Lease and the Lease, including costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers hereunder or under the Assignment Agreement or the Lease. As security for the performance of the obligations of the Authority under this Section 8.07 and the obligation of the Authority to make Additional Rental Payments to the Trustee, the Trustee shall have a lien prior to the lien of the Bonds

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upon all property and funds held or collected by the Trustee as such. The rights of the Trustee and the obligations of the Authority under this Section 8.07 shall survive the resignation or removal of the Trustee or the discharge of the Bonds and this Indenture and the Lease . When the Trustee incurs expenses or renders services after the occurrence of an Event of Default, such expenses and the compensation for such services are intended to constitute expenses of administration under any federal or state bankruptcy, insolvency, arrangement, moratorium, reorganization or other debtor relief law.

ARTICLE IX

MODIFICATION OR AMENDMENT HEREOF

SECTION 9.01. Amendments Permitted.

(a) Amendments With Bond Owner Consent. This Indenture and the rights and obligations of the Authority and of the Owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time by Supplemental Indenture, which the Authority and the Trustee may enter into when the written consents of the Owners of a majority in aggregate principal amount of all Bonds then Outstanding are filed with the Trustee. All fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) incurred in connection with any amendment, modification or supplement shall be payable by the Authority. No such modification or amendment may (i) extend the fixed maturity of any Bonds, or reduce the amount of principal thereof or extend the time of payment, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, without the consent of the Owner of each Bond so affected, or (ii) reduce the aforesaid percentage of Bonds the consent of the Owners of which is required to effect any such modification or amendment, or permit the creation of any lien on the Revenues and other assets pledged under this Indenture prior to or on a parity with the lien created by this Indenture except as permitted herein, or deprive the Owners of the Bonds of the lien created by this Indenture on such Revenues and other assets (except as expressly provided in this Indenture), without the consent of the Owners of all of the Bonds then Outstanding . It is not necessary for the consent of the Bond Owners to approve the particular form of any Supplemental Indenture, but it is sufficient if such consent approves the substance thereof.

(b) Amendments Without Owner Consent. This Indenture and the rights and obligations of the Authority, of the Trustee and the Owners of the Bonds may also be modified or amended from time to time and at any time by a Supplemental Indenture, which the Authority and the Trustee may enter into without the consent of any Bond Owners, if the Trustee has been furnished an opinion of counsel that the provisions of such Supplemental Indenture shall not materially adversely affect the interests of the Owners of the Bonds, including, without limitation, for any one or more of the following purposes (All fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) incurred in connection with any amendment, modification or supplement shall be payable by the Authority):

(i) to add to the covenants and agreements of the Authority in this Indenture contained, other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or any portion thereof), or to surrender any right or power herein reserved to or conferred upon the Authority;

(ii) to cure any ambiguity, inconsistency or omission, or to cure or correct any defective provision, contained in this Indenture, or in regard to matters or

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questions arising under this Indenture, as the Authority deems necessary or desirable, provided that such modification or amendment does not materially adversely affect the interests of the Bond Owners, in the opinion of Bond Counsel filed with the Trustee;

(iii) to modify, amend or supplement this Indenture in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other terms, conditions and provisions as may be permitted by said act or similar federal statute;

(iv) to make such additions, deletions or modifications as may be necessary or desirable to assure exemption from federal income taxation of interest on Bonds the interest of which is intended to be exempt from federal income taxation; or

(v) to provide for the issuance of Additional Bonds pursuant to Section 2.08 hereof.

(c) Limitation. The Trustee is not obligated to enter into any Supplemental Indenture authorized by subsections (a) or (b) of this Section 9.01 which materially adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

(d) Bond Counsel Opinion Requirement. Prior to the Trustee entering into any Supplemental Indenture hereunder, the Authority shall deliver to the Trustee an opinion of Bond Counsel stating, in substance, that such Supplemental Indenture has been adopted in compliance with the requirements of this Indenture.

(e) Notice of Amendments. The Authority shall deliver or cause to be delivered a draft of any Supplemental Indenture to each rating agency which then maintains a rating on the Bonds, at least 10 days prior to the effective date of such Supplemental Indenture under this Section 9.01.

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ECTION 9.02. Effect of Supplemental Indenture . Upon the execution of any Supplemental Indenture under this Article IX, this Indenture shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture of the Authority, the Trustee and all Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any such Supplemental Indenture shall be deemed to be par t of the terms and conditions of this Indenture for any and all purposes.

SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds . Bonds delivered after the execution of any Supplemental Indenture under this Article may, and if the Authority so determines shall, bear a notation by endorsement or otherwise in form approved by the Authority as to any modification or amendment provided for in such Supplemental Indenture, and, in that case, upon demand on the Owner of any Bonds Outstanding at the time of such execution and presentation of his Bonds for the purpose at the Office of the Trustee or at such additional offices as the Trustee may select and designate for that purpose, a suitable notation shall be made on such Bonds . If the Supplemental Indenture shall so provide, new Bonds so modified as to conform, in the opinion of the Authority, to any modification or amendment contained in such Supplemental Indenture, shall be prepared and executed by the Authority and authenticat ed by the Trustee, and upon demand on the Owners of any Bonds then Outstanding shall be exchanged at the Office of the Trustee, without cost

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to any Bond Owner, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amount of the same maturity.

SECTION 9.04. Amendment of Particular Bonds . The provisions of this Article IX do not prevent any Bond Owner from accepting any amendment as to the particular Bonds held by such Owner.

ARTICLE X

DEFEASANCE

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ECTION 10.01. Discharge of Indenture. Any or all of the Outstanding Bonds may be paid by the Authority in any of the following ways, provided that the Authority also pays or causes to be paid any other sums payable hereunder by the Authority:

(a) by paying or causing to be paid the principal of and interest and premium (if any) on such Bonds, as and when the same become due and payable;

(b) by depositing with the Trustee, in trust, at or before maturity, money or securities in the necessary amount (as provided in Section 10.03) to pay or redeem such Bonds; or

If the Authority also pays or causes to be paid all other sums payable hereunder by the Authority, then and in that case, at the election of the Authority (evidenced by a Written Certificate of the Authority, filed with the Trustee, signifying the intentio n of the Authority to discharge all such indebtedness and this Indenture), and notwithstanding that any of such Bonds shall not have been surrendered for payment, this Indenture and the pledge of Revenues and other assets made under this Indenture with res pect to such Bonds and all covenants, agreements and other obligations of the Authority under this Indenture with respect to such Bonds shall cease, terminate, become void and be completely discharged and satisfied, subject to Section 10.02, and except for Section 8.07 hereof, which shall survive. In such event, upon the Written Request of the Authority, the Trustee shall execute and deliver to the Authority all such instruments as may be necessary or desirable to evidence such discharge and satisfaction, a nd the Trustee shall pay over, transfer, assign or deliver to the City all moneys or securities or other property held by it under this Indenture which are not required for the payment or redemption of any of such Bonds not theretofore surrendered for such payment or redemption. The Trustee is entitled to conclusively rely on any such Written Certificate or Written Request and, in each case, is fully protected in relying thereon.

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ECTION 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 10.03) to pay or redeem any Outstanding Bonds (whether upon or prior to the maturity or the redemption date of such B onds), provided that, if such Bonds are to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, then all liability of the Authority in respect of such Bonds shall cease, terminate and be completely discharged, and the Owners thereof shall thereafter be entitled only to payment out of such money or securities deposited with the Trustee as aforesaid for their payment, subject, however, to the provisions of Section 10.04.

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The Authority may at any time surrender to the Trustee, for cancellation by the Trustee, any Bonds previously issued and delivered, which the Authority may have acquired in any manner whatsoever, and such Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired.

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ECTION 10.03. 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 pay or 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 under this Indenture and shall be:

(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 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 of such Bonds, premium, if a ny, and all unpaid interest thereon to the redemption date; or

(b) non-callable Federal Securities, the principal of and interest on which when due will, in the written opinion of an Independent Accountant filed with the City, the Authority and the Trustee, provide money sufficient to pay the principal of and interest and premium (if any) on the Bonds to be paid or redeemed, as such principal, interest and premium 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 or provision satisfactory to the Trustee has been made for the giving of such notice;

provided, in each case, that (i) the Trustee shall have been irrevocably instructed (by the terms of this Indenture or by Written Request of the Authority) to apply such money to the payment of such principal, interest and premium (if any) with respect to such Bonds, and (ii) the Authority shall have delivered to the Trustee an opinion of Bond Counsel to the effect that such Bonds have been discharged in accordance with this Indenture (which opinion may rely upon and assume the accuracy of the Independent Accountant’s opinion referred to above) . The Trustee shall be entitled to conclusively rely on such Written Request or opinion and shall be fully protected, in each case, in relying thereon.

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ECTION 10.04. Unclaimed Funds . Notwithstanding any provisions of this Indenture, any moneys held by the Trustee in trust for the payment of the principal of, or interest on, any Bonds and remaining unclaimed for 2 years after the principal of all of the Bonds has become due and payable (whether at maturity or upon call for redemption or by acceleration as provided in this Indenture), if such moneys were so held at such date, or 2 years after the date of deposit of such moneys if deposited after said date when all of the Bonds became due and payable, shall be repaid (without liability for interest) to the Authority free from the trusts created by this Indenture, and all liability of the Trustee with respect to such moneys shall thereupon cease; provided, however, that before the repayment of such moneys to the Authority as aforesaid, the Trustee shall (at the cost of the Authority) first mail to the Owners of Bonds which have not yet been paid, at the addresses shown on the Registration Books, a notice, in such f orm as may be deemed appropr iate by the Trustee with respect to the Bonds so

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payable and not presented and with respect to the provisions relating to the repayment to the Authority of the moneys held for the payment thereof.

ARTICLE XI

MISCELLANEOUS

SECTION 11.01. Liability of Authority Limited to Revenues . Notwithstanding anything in this Indenture or in the Bonds contained, the Authority is not required to advance any moneys derived from any source other than the Revenues, the Additional Rental Payments and other assets pledged under this Indenture 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 . Nevertheless, the Authority may, but is not required to, advance for any of the purposes hereof any funds of the Authority which may be made available to it for such purposes.

SECTION 11.02. Limitation of Rights to Parties and Bond Owners. Nothing in this Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any person other than the Authority, the Trustee, the City and the Owners of the Bonds, any legal or equitable right, remedy or claim under or in re spect of this Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Authority, the Trustee, the City and the Owners of the Bonds.

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ECTION 11.03. Funds and Accounts . Any fund or account required by this Indenture to be established and maintained by the Trustee may be established and maintained in the accounting records of the Trustee, either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with corporate industry standards to the extent practicable, and with due regard for the requirements of Section 6.05 and for the protection of the security of the Bonds and the rights of every Owner thereof. The Trustee may establish such funds and accounts as it deems necessary or appropriate to perform its obligations under this Indenture.

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ECTION 11.04. Waiver of Notice; Requirement of Mailed 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 cond ition precedent to the validity of any action taken in reliance upon such waiver .

Whenever in this Indenture any notice is required to be given by mail, such requirement may be satisfied by the deposit of such notice in the United States mail, postage prepaid, by first class mail.

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ECTION 11.05. Destruction of Bonds . Whenever in this Indenture provision is made for the cancellation by the Trustee, and the delivery to the Authority, of any Bonds, the Trustee shall destroy such Bonds as may be allowed by law and, upon the Authority’s request, deliver a certificate of suc h destruction to the Authority.

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ECTION 11.06. Severability of Invalid Provisions . If any one or more of the provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Indenture and such invalidity, illegality or unenforceability shall not affect any other provision of this Indenture, and this Indenture shall be construed as if such invalid

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or illegal or unenforceable provision had never been contained herein. The Authority hereby declares that it would have entered into this Indenture and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized the issuance of the Bonds pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or phrases of this Indenture may be held illegal, invalid or unenforceable.

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ECTION 11.07. Notices. All notices or communications to be given under this Indenture shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other party in writing f rom time to time.

Notice shall be effective either (a) upon transmission by email, or other form of telecommunication, confirmed by telephone, (b) 7 Business Days after deposit in the United States mail, postage prepaid, or (c) in the case of personal delivery to any person, upon actual receipt. The Authority, the City or the Trustee may, by written notice to the other parties, from time to time modify the address or number to which communications are to be given hereunder.

If to the City City of San José
or the Authority: Finance - Debt Management
200 East Santa Clara Street, 13th Floor
San José, California 95113-1905
Attention: Director of Finance
Telephone: (408) 535-7010
Email: [email protected]

If to the Trustee: Wilmington Trust, National Association 650 Town Center Drive, Suite 800
Costa Mesa, California 92626
Attention: Corporate Trust

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ECTION 11.08. Evidence of Rights of Bond Owners. Any request, consent or other instrument required or permitted by this Indenture to be signed and executed by Bond Owners may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bond Owners in person or by an agent or agents duly appoi nted in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the holding by any person of Bonds transferable by delivery, shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee and the Authority if made in the manner provided in this Section 11.08.

The fact and date of the execution by any person of any such request, consent or other instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public or other officer.

The ownership of Bonds shall be proved by the Registration Books. Any request, consent, or other instrument or writing of the Owner of any Bond shall bind every future Owner of the same Bond and the Owner of every Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Authority in accordance therewith or reliance thereon.

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SECTION 11.09. Disqualified Bonds . In determining whether the Owners of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are actually known by the Trustee to be owned or held by or for the account of the Authority or the City, or by any other obligor on the Bonds, or by any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Authority or the City or any other obligor on the Bond s, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination unless all Bonds are so owned or held, in which case such Bonds shall be considered Outstanding for the purpose of such determination . Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of 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 Authority or the City or any other obligor on the Bonds .

In case of a dispute as to such right, the Trustee shall be entitled to rely upon the advice of counsel in any decision by Trustee and shall be fully protected in relying thereon.

Upon request, the Authority shall certify to the Trustee those Bonds disqualified under this Section 11.09, and the Trustee may conclusively rely on such certifications.

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ECTION 11.10. Money Held for Particular Bonds . The money held by the Trustee for the payment of the interest, premium, if any, or principal due on any date with respect to particular Bonds (or portions of Bonds in the case of Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Owners of the Bonds entitled thereto, subject, however , to the provisions of Section 10.04 but without any liability for interest thereon.

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ECTION 11.11. Waiver of Personal Liability . No member, officer, agent or employee of the Authority shall be individually or personally liable for the payment of the principal of or interest or premium (if any) 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.

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ECTION 11.12. Successor Is Deemed Included in All References to Predecessor. Whenever in this Indenture either the Authority, the City or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Indenture contained by or on behalf of the Authority, the City or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.

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ECTION 11.13. Execution in Several Counterparts . This Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the Authority and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.

SECTION 11.14. Payment on Non-Business Day. In the event any payment is required to be made hereunder on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and with the same effect as if made on such preceding non-Business Day.

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ECTION 11.15. Governing Law . This Indenture shall be governed by and construed in accordance with the laws of the State of California. THE PARTIES AGREE THAT VENUE SHALL

BE EXCLUSIVELY VESTED IN THE STATE COURTS OF THE COUNTY OF SANTA CLARA,

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OR IF FEDERAL JURISDICTION IS APPROPRIATE, EXCLUSIVELY IN THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, LOCATED IN SAN JOSE, CALIFORNIA.

SECTION 11.16. Entire Agreement. This Indenture and the exhibits hereto set forth the entire agreement and understanding of the parties related to this transaction and supersedes all prior agreements and understandings, oral or written.

[Signature Page Follows]

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IN WITNESS WHEREOF, the CITY OF SAN JOSE FINANCING AUTHORITY has caused this Indenture to be signed in its name by its Treasurer, and WILMINGTON TRUST, NATIONAL ASSOCIATION, in token of its acceptance of the trusts created hereunder, has caused this Indenture to be signed in its corporate name by its officer thereunto duly authorized, all as of the day and year first above written.

CITY OF SAN JOSE FINANCING

AUTHORITY

By
Maria Öberg
Treasurer
Approved as to form:

Nora Frimann, City Attorney

By:

Rosa Tsongtaatarii
Chief Deputy City Attorney

WILMINGTON TRUST, NATIONAL

ASSOCIATION,
as Trustee

By
Authorized Officer

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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APPENDIX A

DEFINITIONS

“Additional Bonds” means Bonds issued in accordance with Section 2.08.

“Additional Rental Payments” means the amounts of additional rental which are payable by the City under Section 4.5 of the Lease or which are otherwise identified as Additional Rental Payments under the Lease.

“Assignment Agreement” means the Assignment Agreement dated as of August 1, 2025 , between the Authority as assignor and the Trustee as assignee, as originally executed or as thereafter amended.

“Authority” means the City of San José Financing Authority , a joint exercise of powers authority duly organized and existing under the laws of the State of California.

“Authorized Representative” means: (a) with respect to the Authority, its Executive Director, Treasurer, Assistant Director of Finance or Deputy Director of Finance responsible for managing the City’s debt program or any other person designated as an Authorized Representative of the Authority by a Written Certificate of the Authority signed by its Executive Director or Treasurer and filed with the City and the Trustee; and (b) with respect to the City, its City Manager, Director of Finance, Assistant Director of Finance or Deputy Director of Finance responsible for managing the City’s debt program or any other person designated as an Authorized Representative of the City by a Written Certificate of the City signed by its City Manager or Director of Finance and filed with the Authority and the Trustee.

“Bond Counsel” means (a) Anzel Galvan LLP, or (b) any other attorney or firm of attorneys appointed by or acceptable to the Authority of nationally -recognized experience in the issuance of obligations the interest on which is excludable from gross income for federal income tax purposes under the Code.

“Bond Fund” means the fund by that name established and held by the Trustee under Section

5.01. “Bond Law” means Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code.

“Bond Year” means each twelve-month period extending from June 2 in one calendar year to June 1 of the succeeding calendar year, both dates inclusive; except that the first Bond Year commences on the Closing Date and extends to and includes June 2, 2026.

“Bonds” means the 2025A Bonds and any Additional Bonds.

“Business Day” means a day (other than a Saturday or a Sunday) on which banks or trust companies are not required or authorized to remain closed in New York, New York, Wilmington, Delaware, or the city in which the Office of the Trustee is located.

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“City” means the City of San José , a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California.

“Closing Date” means, with respect to the 2025A Bonds, August [__], 2025 , the date of delivery of the 2025A Bonds to the Original Purchaser, and with respect to any Additional Bonds, the respective date of delivery of such Additional Bonds to the original purchase thereof.

“Code” means the Internal Revenue Code of 1986 as in effect on the Closing Date or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the Closing Date, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, under the Code.

“Commercial Paper Notes Trustee” means Computershare Trust Company , National Association, its successors and assigns, in its capacity as Trustee and as Issuing and Paying Agent for the Muni Water Building Project Commercial Paper Notes.

“Costs of Issuance ” means all items of expense directly or indirectly payable by or reimbursable to the City relating to the authorization, issuance, sale and delivery of the Bonds, including but not limited to: printing expenses; rating agency fees; filing and recording fee s; initial fees, expenses and charges of the Trustee and their respective counsel, including the Trustee’s first annual administrative fee; fees, charges and disbursements of attorneys, municipal advisors, accounting firms, consultants and other professionals; fees and charges for preparation, execution and safekeeping of the Bonds; and any other cost, charge or fee in connection with the original issuance of the Bonds.

“Costs of Issuance Fund ” means the fund by that name established and held by the Trustee under Section 3.03.

“Depository” means (a) initially, DTC, and (b) any other Securities Depositories acting as Depository under Section 2.04.

“Depository System Participant” means any participant in the Depository’s book-entry system.

“DTC” means The Depository Trust Company, New York, New York, and its successors and assigns.

“Electronic Means ” means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

“Event of Default” means any of the events specified in Section 7.01.

“Federal Securities” means: (a) any U.S. Treasury securities ; (b) obligations of any agency, department or instrumentality of the United States of America, the timely payment of principal and interest on which are directly or indirectly secured or guaranteed by the full faith and credit of the United States of America.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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“Fiscal Year” means any twelve-month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve -month period selected and designated by the Authority as its official fiscal year period.

“Fitch” means Fitch Ratings, and its successors and assigns.

“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 under the provisions hereof.

“Independent Accountant” means any certified public accountant or firm of certified public accountants appointed and paid by the Authority or the City, and who, or each of whom (a) is in fact independent and not under domination of the Authority or the City; (b) does not have any substantial interest, direct or indirect, in the Authority or the City; and (c) is not connected with the Authority or the City as an officer or employee of the Authority or the City but who may be regularly retained to make annual or other audits of the books of or reports to the Authority or the City.

“Insurance and Condemnation Fund” means the fund by that name established and held by the Trustee under Section 5.06.

“Interest Account” means the account by that name established and held by the Trustee in the Bond Fund under Section 5.02.

“Interest Payment Date ” means each June 1 and December 1, commencing [December 1, 2025], so long as any Bonds remain unpaid.

“Investment Policy” means the City's Council Investment Policy 1-12, as previously adopted and as may hereafter be amended.

“Lease” means the Lease Agreement dated as of August 1, 2025 , between the Authority as lessor and the City as lessee of the Leased Property, as originally executed and as it may from time to time be supplemented, modified or amended in accordance with the terms thereof and of this Indenture.

“Lease Payment Date ” means, with respect to any Interest Payment Date, the Business Day immediately preceding such Interest Payment Date.

“Lease Payments” means the amounts payable by the City under Section 4.3(a) of the Lease, including any prepayment thereof and including any amounts payable upon a delinquency in the payment thereof.

“Leased Property” means the real property described in Appendix A to the Lease, together with all improvements and facilities at any time situated thereon.

“Moody’s” means Moody's Investors Service, its successors and assigns.

“Muni Water Building Project” means the public capital improvements described in Appendix C attached to the Lease.

“Muni Water Building Project Commercial Paper Notes” has the meaning given to such terms in the Recitals hereto.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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“Net Proceeds” means amounts derived from any policy of casualty insurance or title insurance with respect to the Leased Property, or the proceeds of any taking of the Leased Property or any portion thereof in eminent domain proceedings (including sale under threat of such proceedings), to the extent remaining after payment therefrom of all expenses incurred in the collection and administration thereof.

“Nominee” means (a) initially, Cede & Co. as nominee of DTC, and (b) any other nominee of the Depository designated under Section 2.04(a).

“Office” means the corporate trust office of the Trustee in Costa Mesa, California, or such other or additional offices as the Trustee may designate in writing to the Authority from time to time as the corporate trust office for purposes of the Indenture; except that with respect to presentation of Bonds for payment or for registration of transfer and exchange such term means the office or agency of the Trustee at which, at any particular time, its corporate trust agency business is conducted.

“Original Purchaser” means, ______, as Original Purchaser of the 2025A Bonds upon their delivery by the Trustee on the Closing Date.

“Outstanding”, when used as of any particular time with reference to Bonds, means all Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under this Indenture except:
(a) Bonds theretofore canceled by the Trustee or surrendered to the Trustee for cancellation; (b) Bonds with respect to which all liability of the Authority shall have been discharged in accordance with Section 10.02, including Bonds (or portions thereof) described in Section 11.09; and (c) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Trustee under this Indenture.

“Owner”, whenever used herein with respect to a Bond, means the person in whose name the ownership of such Bond is registered on the Registration Books.

“Permitted Encumbrances” means, as of any time: (a) liens for general ad valorem taxes and assessments, if any, not then delinquent, or which the City may permit to remain unpaid under Article V of the Lease; (b) the Site Lease, the Lease and the Assignment Agreement; (c) any right or claim of any mechanic, laborer, material man, supplier or vendor not filed or perfected in the manner prescribed by law; (d) the exceptions disclosed in the title insurance policy with respect to the Leased Property issued as of the Closing Date for the 2025A Bonds by Stewart Title Insurance Company; and (e) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record and which the City certifies in writing will not materially impair the use of the Leased Property for its intended purposes.

“Permitted Investments” means any of the followin g which at the time acquired or made are legal investments for the Authority under applicable State laws and the Investment Policy (unless compliance with the Investment Policy is waived in writing by the Director of Finance of the City), for the moneys held hereunder then proposed to be invested therein:

(a) any U.S. Treasury securities.

(b) Obligations of any of the following federal agencies, which obligations represent the full faith and credit of the United States of America: (i) Export-Import Bank, (ii) Farm Credit System Financial Assistance Corporation, (ii) Rural Economic

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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Community Development Administration (formerly the Farmers Home Administration), ( iv) General Services Administration, ( v) U.S. Maritime Administration, (vi) Small Business Administration, (vii) Government National Mortgage Association (GNMA), ( viii) U.S. Department of Housing & Urban Development (PHA’s), ( ix) Federal Housing Administration, and ( x) Federal Financing Bank.

(c) Direct obligations of any of the following federal agencies which obligations are not fully guaranteed by the full faith and credit of the United States of America:
(i) senior debt obligations issued by Fannie Mae, the Federal Home Loan Mortgage Corporation (FHLMC) or the Student Loan Marketing Association (SLMA), (ii) obligations of the Resolution Funding Corporation (REFCORP), (iii) senior debt obligations of the Federal Home Loan Bank System, (iv) consolidated systemwide bonds and notes of the Farm C redit System, and (v) senior debt obligations of other government-sponsored agencies.

(d) U.S. dollar denominated deposit accounts, federal funds and bankers’ acceptances with domestic commercial banks which have a rating on their short term certificates of deposit on the date of purchase of A -1 or A-1+ by S&P and P-1 by Moody’s and maturing no more than 360 days after the date of purchase, provided that a rating on a holding company is not considered to be the rating of the bank.

(e) Commercial paper which is rated at the time of purchase in the single highest classification, A-1+ by S&P and P- 1 by Moody’s and which matures not more than 270 days after the date of purchase.

(f) Investments in a money market fund registered under the Federal Investment Company Act of 1940, whose shares are registered under the Securities Act of 1933, comprised of investments described in clauses (a), (b) or (c) or of repurchase agreements comprised of such investments, which fund may include a fund for which the Tr ustee, its affiliates or subsidiaries provide investment, advisory or other services.

(g) Municipal obligations with a rating of at least A2/A or higher by both Moody’s and S&P.

(h) Investment agreements, supported by appropriate opinions of counsel, with notice to Fitch, S&P and Moody's.

(i) Obligations with a maximum remaining maturity of not more than five years issued by any corporation organized and operating within the United States of America having assets in excess of $500,000,000, which obligations are rated in one of the two highest ra ting categories (without regard to numeric or other modifier) by Moody's and S&P and Fitch, if such obligations are rated by Fitch.

(j) Other forms of investments (including repurchase agreements) with notice to Fitch, S&P and Moody's.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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(k) The Local Agency Investment Fund of the State of California, created pursuant to Section 16429.1 of the California Government Code, to the extent the Trustee is authorized to register such investment in its name.

(l) The City’s investment pool.

“Principal Account” means the account by that name established and held by the Trustee in the Bond Fund under Section 5.02.

“Project Costs” means, with respect to the Muni Water Building Project , all costs of the acquisition, construction and installation thereof which are paid from moneys on deposit in the Project Fund (and the subaccounts therein), including but not limited to:

(a) all costs required to be paid to any person under the terms of any agreement for or relating to the acquisition, construction and installation of the Muni Water Building Project;

(b) obligations incurred for labor and materials in connection with the acquisition, construction and installation of the Muni Water Building Project;

(c) the cost of performance or other bonds and any and all types of insurance that may be necessary or appropriate to have in effect in connection with the acquisition, construction and installation of the Muni Water Building Project;

(d) all costs of engineering and architectural services, including the actual out-of- pocket costs for test borings, surveys, estimates, plans and specifications and preliminary investigations therefor, development fees, sales commissions, and for supervising construction, as well as for the performance of all other duties required by or consequent to the proper acquisition, construction and installation of the Muni Water Building Project;

(e) any sums required to reimburse the City for advances made for any of the above items or for any other costs incurred and for work done which are properly chargeable to the acquisition, construction and installation of the Muni Water Building Project;

(f) all Costs of Issuance of the Bonds and other financing costs incurred in connection with the acquisition, construction and installation of the Muni Water Building Project; and

(g) the interest components of the Lease Payments allocable to the Muni Water Building Project or any component thereof, which come due during the period of acquisition, construction and installation of the Muni Water Building Project or such component.

“Project Fund” means the fund by that name established and held by the Trustee under Section

3.04. “Record Date” means, with respect to any Interest Payment Date, the 15 th calendar day of the month preceding such Interest Payment Date, whether or not such day is a Business Day.

“Redemption Fund” means the fund by that name established and held by the Trustee under Section 5.05.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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“Refunding Bonds ” means Additional Bonds issued by the Authority, the net proceeds of which are used to refund all or a portion of the then-Outstanding Bonds and for other lawful purposes; provided that the principal and interest on the Refunding Bonds to their final maturity date is less than the principal and interest on the Bonds being refunded to their final maturity date, and the final maturity of the Refunding Bonds is not later than the final maturity of the Bonds being refunded.

“Refunding Instructions (Muni Water Building Project Commercial Paper Notes)” means the Irrevocable Refunding Instructions dated as of the Closing Date, among the Authority, the City, and the Commercial Paper Notes Trustee, relating to the refunding of the Muni Water Building Project Commercial Paper Notes.

“Refunding Instructions (2013B Bonds) ” means the Irrevocable Refunding Instructions (2013B Bonds) dated as of the Closing Date, among the Authority, the City and the 2013B Bonds Trustee, relating to the refunding of the outstanding 2013B Bonds and the discharge of the obligations of the Authority and the City relating thereto.

“Registration Books” means the records maintained by the Trustee under Section 2.05 for the registration and transfer of ownership of the Bonds.

“Rental Period” means each twelve-month period extending from June 2 in one calendar year to June 1 of the succeeding calendar year, both dates inclusive , during the term of the Lease ; except that the first Rental Period commences on the Closing Date and extends to and including [June 1, 2026].

“Revenues” means: (a) all amounts received by the Authority or the Trustee under or with respect to the Lease, including, without limiting the generality of the foregoing, all of the Lease Payments (including both timely and delinquent payments, any late charges, an d whether paid from any source), but excluding any Additional Rental Payments; (b) any amounts described in Section

7.6(b) and (c) all interest, profits or other income derived from the investment of amounts in any fund or account established under this Indenture.

“Risk Management Consultant” means a person or firm of favorable reputation, qualified and experienced in the field of insurance and risk management consultation with respect to structures of the same nature as the Leased Property, as may from time to time be designated by the City an d who may be an employee of the City.

“Securities Depositories” means DTC; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other securities depositories as the Authority designates in written notice filed with the Trustee.

“Site Lease” means the Site Lease dated as of August 1, 2025, between the City as lessor and the Authority as lessee, as amended from time to time in accordance with its terms.

“Site Lease Payment” means the amount of $_________ which is payable by the Authority to the City on the Closing Date under Section 3 of the Site Lease.

“Supplemental Indenture” means any indenture hereafter duly authorized and entered into between the Authority and the Trustee, supplementing, modifying or amending this Indenture; but only if and to the extent that such Supplemental Indenture is specifically authorized hereunder.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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“S&P” means S&P Global Ratings, its successors and assigns.

“U.S. Treasury ” means any direct general obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America), for which the full faith and credit of the Unit ed States of America are pledged.

“Term” means, with reference to the Lease, the time during which the Lease is in effect, as provided in Section 4.2 thereof.

“Term Bonds ” means, collectively, the 2025A Term Bonds and any Additional Bonds identified as such in a Supplemental Indenture.

“Trustee” means Wilmington Trust, National Association , a national banking association organized and existing under the laws of United States of America, or its successor or successors, as Trustee hereunder as provided in Article VIII.

“Written Certificate,” “Written Request,” “Written Requisition” and “Written Instructions” of the Authority or the City mean, respectively, a written certificate, request , requisition or instructions (including wire instructions) signed in the name of the Authority or the City by its Authorized Representative. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument.

“2013B Bonds” means the City of San José Financing Authority Lease Revenue Refunding Bonds, Series 2013B (Civic Center Garage Project), originally issued in the aggregate principal amount of $30,445,000.

“2013B Bonds Trustee” means Computershare Trust Company, National Association , its successor and assigns, as trustee for the 2013B Bonds.

“2025A Bond s” means the $[PAR] .00 aggregate principal amount of City of San José Financing Authority Lease Revenue Bonds, Series 2025A (Civic Center Garage and Muni Water Building Projects) authorized by and at any time Outstanding under this Indenture.

“2025A Term Bonds” means, collectively, the 2025A Bonds maturing on June 1, 20__, and June 1, 20__.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

B-1

APPENDIX B

BOND FORM

No. ____ $___________

UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED

REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE

TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR

SUCH OTHER NAME AS REQUESTED BY A N AUTHORIZED

REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY
PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER

USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

UNITED STATES OF AMERICA

STATE OF CALIFORNIA

CITY OF SAN JOSE FINANCING AUTHORITY
LEASE
REVENUE BONDS, SERIES 2025A
(CIVIC CENTER GARAGE AND MUNI WATER BUILDING PROJECTS)

INTEREST RATE MATURITY DATE DATED DATE CUSIP
______% June 1, 20__ August [___], 2025

REGISTERED OWNER: CEDE & CO.

PRINCIPAL AMOUNT: _________________________ THOUSAND DOLLARS

The CITY OF SAN JOSE FINANCING AUTHORITY, a joint exercise of powers authority duly organized and existing under the laws of the State of California (the “Authority”), for value received, hereby promises to pay to the Registered Owner specified above or registered assigns (the “Registered Owner”), on the Maturity Date specified above (subject to any right of prior redemption hereinafter provided for), the Principal Amount specified above, in lawful money of the United States of America, and to pay interest thereon in like lawful money from the In terest Payment Date (as hereinafter de fined) next preceding the date of authentication of this Bond unless (i) this Bond is authenticated on or before an Interest Payment Date and after the close of business on the 15 th day of the month preceding such interest payment date, in which event it shall bear interest from such Interest Payment Date, or (ii) this Bond is authenticated on or before [September 15, 2025], in which event it shall bear interest from the Original Issue Date specified above; provided, however, that if at the time of authentication of this Bond, interest is in default on this Bond, this Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment on this Bond, at the Interest Rate per annum specified above, pa yable semiannually on June 1 and

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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December 1 in each year, commencing [December 1, 2025] (the “Interest Payment Dates”), calculated on the basis of a 360-day year composed of twelve 30-day months.

Principal hereof and premium, if any, upon early redemption hereof are payable upon presentation and surrender hereof at the designated corporate trust office (the “Trust Office”) of Wilmington Trust, National Association, as trustee (the “Trustee”). Interest hereon is payable by check of the Trustee mailed to the Registered Owner hereof at the Registered Owner’s address as it appears on the registration books of the Trustee as of the close of business on the fifteenth day of the month preceding each Interest Payment Date (a “Record Date”), or, upon written request filed with the Trustee as of such Record Date by a registered owner of at least $1,000,000 in aggregate principal amount of Bonds, by wire transfer in immediately available funds to an account in the United States designated by such registered owner in such written request.

This Bond is not a debt of the City of José (the “City”), the County of Santa Clara, the State of California, or any of its political subdivisions, and neither the City, said County, said State, nor any of its political subdivisions, is liable hereon nor in any event shall this Bond be payable out of any funds or properties of the Authority other than the Revenues.

This Bond is one of a duly authorized issue of bonds of the Authority designated as the “City of San José Financing Authority Lease Revenue Bonds, Series 2025A (Civic Center Garage and Muni Water Building Projects)” (the “Bonds”), in an aggregate principal amount of $[PAR], all of like tenor and date (except for such variation, if any, as may be required to designate varying numbers, maturities, interest rates or redemption provisions) and all issued under the provisions of Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code, and under an Indenture of Trust dated as of August 1, 2025, between the Authority and the Trustee (the “Indenture”) and a resolution of the Authority adopted on [June 17, 2025] authorizing the issuance of the Bonds. Reference is hereby made to the Indenture (copies of which are on file at the office of the Authority) and all supplements thereto for a description of the terms on which the Bonds are issued, the provisions with regard to the nature and extent of the Reve nues, and the rights thereunder of the owners of the Bonds and the rights, duties and immunities of the Trustee and the rights and obligations of the Authority thereunder, to all of the provisions of which th e Registered Owner of this Bond, by acceptance hereof, assents and agrees.

The Bonds have been issued by the Authority to finance and refinance certain capital improvements of the City. This Bond and the interest and premium, if any, hereon are special obligations of the Authority, payable from the Revenues, and secured by a charge and lien on the Revenues as defined in the Indenture, consisting principally of lease payments made by the City under a Lease Agreement dated as of August 1, 2025, between the Authority as lessor and the City as lessee (the “Lease”). As and to the extent set forth in the Indenture, all of the Revenues are exclusively and irrevocably pledged in accordance with th e terms hereof and the provisions of the Indenture, to the payment of the principal of and interest and premium (if any) on the Bonds.

The rights and obligations of the Authority and the owners of the Bonds may be modified or amended at any time in the manner, to the extent and upon the terms provided in the Indenture, but no such modification or amendment shall extend the fixed maturity of any Bonds, or reduce the amount of principal thereof or premium (if any) thereon, or extend the time of payment, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, without the consent of the owner of each Bond so affected.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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The Bonds are subject to optional, [mandatory sinking fund, ] and Special Mandatory Redemption From Insurance or Condemnation Proceeds as provided in the Indenture.

As provided in the Indenture, notice of redemption will be mailed by the Trustee by first class mail not less than 20 nor more than 60 days prior to the redemption date to the respective owners of any Bonds designated for redemption at their addresses appearing on the registration books of the Trustee, but neither failure to receive such notice nor any defect in the notice so mailed shall affect the sufficiency of the proceedings for redemption or the cessation of accrual of interest thereon from and after the date fixed for redemption.

Notice of any optional redemption of the Bonds may be rescinded under the circumstances set forth in the Indenture, upon notice to the owners of such Bonds.

Bonds will be selected for redemption as provided in the Indenture. If this Bond is called for redemption and payment is duly provided therefor as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.

This Bond is transferable by the Registered Owner hereof, in person or by his attorney duly authorized in writing, at the Trust Office, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon s urrender and cancellation of this Bond .

Upon registration of such transfer, a new Bond or Bonds, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be issued to the transferee in exchange herefor. This Bond may be exchanged at the Trust Office for Bonds of the same tenor, aggregate principal amount, interest rate and maturity, of other authorized denominations.

The Authority and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Authority and the Trustee shall not be affected by any notice to the contrary.

It is hereby certified by the Authority that all of the things, conditions and acts required to exist, to have happened or to have been performed precedent to and in the issuance of this Bond do exist, have happened or have been performed in due and regula r time, form and manner as required by the laws of the State of California and that the amount of this Bond, together with all other indebtedness of the Authority, does not exceed any limit prescribed by the laws of the State of California, and is not in excess of the amount of Bonds permitted to be issued under the Indenture.

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 manually signed by the Trustee.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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IN WITNESS WHEREOF, the City of San José Financing Authority has caused this Bond to be executed in its name and on its behalf with the facsimile signature of its Treasurer and attested to by the facsimile signature of its Secretary, all as of the Original Issue Date specified above.

CITY OF SAN JOSE FINANCING

AUTHORITY

By
Treasurer

Attest:

Secretary

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

B-5

CERTIFICATE OF AUTHENTICATION

This is one of 2025 Bonds described in the within- mentioned Indenture and registered on the Registration Books.

Date: __________________, 2025 WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee

By:

Authorized Signatory

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

B-6

ASSIGNMENT

For value received the undersigned hereby sells, assigns and transfers unto __________________________________ whose address and social security or other tax identifying number is ____________________, the within-mentioned Bond and hereby irrevocably constitute(s) and appoint(s) ________________________________________ attorney, to transfer the same on the registration books of the Trustee with full power of substitution in the premises.

Dated:

Signature Guaranteed:

Note: Signature(s) must be guaranteed by an
eligible guarantor institution.

Note: The signature(s) on this Assignment must
correspond with the name(s) as written on the
face of the within Bond in every particular
without alteration or enlargement or any change
whatsoever.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

C-1

APPENDIX C

FORM OF COSTS OF ISSUANCE FUND REQUISITION

REQUISITION NO. __

COST OF ISSUANCE FUND

Wilmington Trust, National Association
650 Town Center Drive, Suite 800
Costa Mesa, California 92626
Attention: Corporate Trust

Re: $[PAR] City of San José Financing Authority Lease Revenue Bonds, Series 2025A (Civic Center Garage and Muni Water Building Projects)

In accordance with the terms of an Indenture of Trust, by and between you and the undersigned, dated as of August 1, 2025 (the “Indenture”), you are hereby authorized and requested to make immediate disbursement of funds held by you in the Costs of Issuance Fund for Costs of Issuance (as such terms are defined in the Indenture) pursuant to Section 3.03 of the Indenture.

You are hereby requested to pay from the Costs of Issuance Fund established by the Indenture to the person(s), corporation(s) or other entity(ies) designated on Schedule A attached hereto, in payment of all or a portion of the Costs of Issuance described on said Schedule.

The undersigned hereby certifies that (i) the amounts listed on Schedule A constitute Costs of Issuance (as defined in the Indenture), and (ii) no part of the amount requested herein has been included in any other request previously filed with you.

Dated: __________, 20___.

CITY OF SAN JOSE FINANCING

AUTHORITY

By:

Authorized Representative

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

C-2

SCHEDULE A

Payee
(include address)

Amount Purpose

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

D-1

APPENDIX D

FORM OF PROJECT FUND REQUISITION

DISBURSEMENT REQUEST NO.: _______

Wilmington Trust, National Association
650 Town Center Drive, Suite 800
Costa Mesa, California 92626
Attention: Corporate Trust

Re: $[PAR] City of San José Financing Authority Lease Revenue Bonds, Series 2025A (Civic Center Garage and Muni Water Building Projects)

Ladies and Gentlemen:

In accordance with the terms of an Indenture of Trust, by and between you and the undersigned, dated as of August 1, 2025 (the “Indenture”), you are hereby authorized and requested to make immediate disbursement of funds held by you in the Project Fund and the subaccounts therein for Project Costs relating to the Muni Water Building Project (as such terms are defined in the Indenture) pursuant to Section 3.04 of the Indenture.

You are hereby requested to pay from the Project Fund to the person(s), corporation(s) or other entity(ies) designated on Schedule A attached hereto in payment of all or a portion of the Project Costs described on said Schedule.

The undersigned hereby certifies that (i) the amounts listed on Schedule A constitute Project Costs (as defined in the Indenture), (ii) no part of the amount requested herein has been included in any other request previously filed with you; (iii) to the knowledge of the undersigned, there has not been filed with or served upon the City any notice of any lien or attachment upon or claim (except for any preliminary notice of lien as may be filed in accordance with law) affecting the right of the person, corporation or other entity stated below to receive payment of the amount stated below, which lien has not been released or will not be released simultaneously with the payment requested hereunder; and (iv) the labor, services and/or materials covered hereby have been performed upon or furnished to the Project and the payment requested herein is due and payable under a purchase order, contract or other authorization;

Dated: __________, 20___.

CITY OF SAN JOSE FINANCING

AUTHORITY

By:

Authorized Representative

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

D-2

SCHEDULE A

Payee Description Project Costs
(include address) of Costs Amount

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

San Jose City CouncilJune 17, 2025

San Jose City Council
June 17, 2025