Stradling Yocca Carlson & Rauth
Draft of 9/19/22
4867-5443-0509v5/022363-0037
_______ SUPPLEMENTAL INDENTURE
Dated as of _______ 1, 2023
by and among
ANAHEIM PUBLIC FINANCING AUTHORITY
and
CITY OF ANAHEIM
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Relating to
$________
ANAHEIM PUBLIC FINANCING AUTHORITY
TAXABLE LEASE REVENUE BONDS
(ANAHEIM ARENA IMPROVEMENT PROJECT)
2023 SERIES __ (FIXED RATE)
i
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TABLE OF CONTENTS
Page
ARTICLE XVII DEFINITIONS ...........................................................................................................2 Section 17.01 Definitions .................................................................................................................2 ARTICLE XVIII THE SERIES 2023__ BONDS.................................................................................4 Section 18.01 Authorization and Issuance of Series 2023_ Bonds ..................................................4 Section 18.02 Terms of Series 2023__ Bonds..................................................................................4 Section 18.03 Form of Series 2023_ Bonds .....................................................................................5 ARTICLE XIX APPLICATION OF PROCEEDS; ESTABLISHMENT OF ACCOUNTS................5 Section 19.01 Application of Proceeds of Sale of Series 2023_ Bonds ...........................................5 Section 19.02 Series 2023__ Construction Subaccount ...................................................................6 Section 19.03 Series 2023__ Debt Service Reserve Account ..........................................................6 ARTICLE XX REDEMPTION OF SERIES 2023__ BONDS.............................................................7 Section 20.01 Redemption of Series 2023_ Bonds ..........................................................................7 Section 20.02 Selection of Bonds for Redemption...........................................................................8 ARTICLE XXI MISCELLANEOUS....................................................................................................9 Section 21.01 Terms of the Series 2023_ Bonds Subject to the Master Indenture ..........................9 Section 21.02 Partial Invalidity ........................................................................................................9 Section 21.03 Waiver of Personal Liability......................................................................................9 Section 21.04 Successor Deemed Included in all References to Predecessor..................................9 Section 21.05 Execution in Counterparts .........................................................................................9 Section 21.06 Governing Law ..........................................................................................................9 Signature Page ................................................................................................................................S-1 EXHIBIT A FORM OF SERIES 2023__ BOND.......................................................................A-1 EXHIBIT B DESCRIPTION OF PROJECT ..............................................................................B-1 4867-5443-0509v5/022363-0037
_______ SUPPLEMENTAL INDENTURE
This _______ SUPPLEMENTAL INDENTURE, dated as of _______ 1, 2023 (the “_______ Supplemental Indenture”), is entered into by and among the ANAHEIM PUBLIC FINANCING AUTHORITY, a joint exercise of powers entity duly organized and existing under the laws of the State of California (the “Authority”), the CITY OF ANAHEIM, a municipal corporation and charter city duly organized and existing under and by virtue of its charter and the Constitution and laws of the State of California (the “City”) and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association duly organized and existing under and by virtue of the laws of the United States, as Trustee (the “Trustee”), and supplements the Master Indenture, dated as of _______ 1, 2023 (the “Master Indenture” and as supplemented by this _______ Supplemental Indenture, the “Indenture”) by and among the Authority, the City and the Trustee. (Capitalized terms used in the Whereas clauses and not defined therein shall have the meanings provided in the Indenture.)
WITNESSETH:
WHEREAS, the City and the Authority desire to finance the costs of the acquisition, design, construction, installation and/or equipping of certain capital improvement projects of the City; WHEREAS, in order to finance the Project, the City will lease the Property to the Authority pursuant to the Ground Lease, and the City will sublease the Property back from the Authority pursuant to the Lease Agreement;
WHEREAS, the City and the Authority have determined that it would be in the best interests of the City and the Authority to provide the funds necessary to finance certain costs of the Project through the issuance by the Authority of the Series 2023_ Bonds under the Indenture in the aggregate principal amount not to exceed $_____________, which are payable from the Base Rental Payments to be made by the City under the Lease Agreement;
WHEREAS, [simultaneously with the Series 2023_ Bonds,] the Authority is issuing its Anaheim Public Financing Authority Taxable Lease Revenue Bonds (Anaheim Arena Improvement Project), 2023 Series __, in the aggregate principal amount of $[________], to finance certain costs of the Project;
WHEREAS, all rights to receive the Base Rental Payments and other Lease Revenues have been assigned without recourse by the Authority to the Trustee pursuant to the Assignment Agreement, executed and delivered by the Authority and the Trustee in connection with the issuance of the Series 2023__ Bonds and the Series 2023_ Bonds;
WHEREAS, the Series 2023__ Bonds and the Series 2023_ Bonds will be payable equally and ratably from the Base Rental Payments and other Lease Revenues; WHEREAS, in order to provide for the authentication and delivery of the Series 2023_ Bonds, to establish and declare the terms and conditions upon which the Series 2023_ Bonds are to be issued and secured and to secure the payment of the principal thereof, premium, if any, and interest thereon, the Authority and the City have authorized the execution and delivery of this _______ Supplemental Indenture;
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WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution and entering into of this _______ Supplemental Indenture do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the parties hereto are now duly authorized to execute and enter into this _______ Supplemental Indenture; and NOW THEREFORE, in consideration of the premises and of the mutual agreements and covenants contained herein and for other valuable consideration, the receipt whereof is hereby acknowledged, the parties do hereby agree as follows:
ARTICLE XVII
DEFINITIONS
Section 17.01 Definitions. Except as otherwise provided in this Section 12.01, all terms used herein which are defined in the Master Indenture shall have the meanings assigned to them therein. All other capitalized terms used herein without definition shall have the meaning given to such terms in the Lease Agreement.
“Authorized Denominations” means, with respect to the Series 2023__ Bonds, $5,000 or any integral multiple thereof.
“Calculation Agent” means, with respect to the Series 2023_ Bonds, a commercial bank or an investment banking institution of national standing that is a primary dealer of United States government securities in the United States and designated by the City (which may be the institution that served as the underwriter for the Series 2023__ Bonds). “Closing Date” means, with respect to the Series 2023_ Bonds, __________, 2023. “Comparable Treasury Issue” means the United States Treasury security selected by the Calculation Agent as having a maturity comparable to the remaining term to maturity of the Series 2023__ Bonds being redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term to maturity of the Series 2023__ Bonds being redeemed. “Comparable Treasury Price” means, with respect to any date on which a Series 2023__ Bond or portion thereof is being redeemed, either: (a) the average of five Reference Treasury Dealer quotations for the date fixed for redemption, after excluding the highest and lowest such quotations or (b) if the Calculation Agent is unable to obtain five such quotations, the average of the quotations that are obtained. The quotations will be the average, as determined by the Calculation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of principal amount) quoted in writing to the Calculation Agent, at 5:00 p.m. New York City time at least three Business Days but no more than 20 Business Days preceding the date fixed for redemption, as selected by the Authority.
“Comparable Treasury Yield” means the yield that represents the weekly average yield to maturity for the preceding week appearing in the most recently published statistical release designated “H.15(519) Selected Interest Rates” under the heading “Treasury Constant Maturities,” or any successor publication selected by the Calculation Agent that is published weekly by the Board of 3 4867-5443-0509v5/022363-0037
Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury securities adjusted to constant maturity, for the maturity corresponding to the remaining term to maturity of the Series 2023__ Bond being redeemed. The Comparable Treasury Yield will be determined at least three Business Days preceding the date fixed for redemption, as selected by the City. If the H.15(519) statistical release sets forth a weekly average yield for United States Treasury securities that have a constant maturity that is the same as the remaining term to maturity of the Series 2023__ Bonds being redeemed, then the Comparable Treasury Yield will be equal to such weekly average yield. In all other cases, the Comparable Treasury Yield will be calculated by interpolation on a straight-line basis, between the weekly average yields on the United States Treasury securities that have a constant maturity: (i) closest to and greater than the remaining term to maturity of the Series 2023__ Bonds being redeemed; and (ii) closest to and less than the remaining term to maturity of the Series 2023__ Bonds being redeemed. Any weekly average yields calculated by interpolation will be rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1% or above being rounded upward. If, and only if, weekly average yields for United States Treasury securities for the preceding week are not available in the H.15(519) statistical release or any successor publication, then the Comparable Treasury Yield will be the rate of interest per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue (expressed as a percentage of its principal amount) assuming a price for the Comparable Treasury Issue equal to the Comparable Treasury Price as of the date fixed for redemption. “Indenture” means the Master Indenture, as originally executed, as supplemented by [the _______ Supplemental Indenture and] this _______ Supplemental Indenture, and as it may be further amended or supplemented from time to time by any Supplemental Indenture. “Instructing Owners” means, with respect to the Series 2023__ Bonds, the Owners holding not less than a majority in aggregate principal amount of all Series 2023_ Bonds at the time Outstanding.
“Interest Payment Date” means, with respect to the Series 2023__ Bonds, ______ 1 and ______ 1 of each year, commencing on ______ 1, 2023.
“Principal Payment Date” means, with respect to the Series 2023__ Bonds, _________1 of each year, commencing on ________ 1, 20__.
“Reference Treasury Dealer” means a primary dealer of United States Government securities in the United States (which may be the institution that served as the underwriter for the Series 2023__ Bonds) appointed by the Authority and reasonably acceptable to the Calculation Agent.
“Series 2023__ Bonds” means the Anaheim Public Financing Authority Taxable Lease Revenue Bonds (Anaheim Arena Improvement Project), 2023 Series __ issued under the Master Indenture, as supplemented by this _____ Supplemental Indenture. “Series 2023__ Construction Subaccount” means the subaccount established pursuant to Section 19.02 hereof.
“Term Bonds” means, with respect to the Series 2023__ Bonds, the Series 2023__ Bonds maturing on _______ 1, 20__ and on _______ 1, 20__.
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ARTICLE XVIII
THE SERIES 2023__ BONDS
Section 18.01 Authorization and Issuance of Series 2023_ Bonds. (a) The Authority and the City have determined that all acts and proceedings required by law necessary to make the Series 2023_ 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, have been done and taken, and the execution and delivery of this _______ Supplemental Indenture has been in all respects duly authorized. The Series 2023_ Bonds are hereby designated the “Anaheim Public Financing Authority Taxable Lease Revenue Bonds (Anaheim Arena Improvement Project), 2023 Series __.”
(b) The Authority may, at any time, execute the Series 2023_ Bonds for issuance hereunder and deliver the same to the Trustee. The Trustee shall authenticate the Series 2023_ Bonds and deliver the Series 2023_ Bonds to the Purchaser thereof upon receipt of a Written Request of the Authority. The Series 2023__ Bonds shall initially be issued as Book-Entry Bonds.
Section 18.02 Terms of Series 2023__ Bonds.
(a) The Series 2023__ Bonds shall be issued in fully registered form without coupons in Authorized Denominations, so long as no Series 2023__ Bond shall have more than one maturity date. The Series 2023__ Bonds shall be dated as of the Closing Date, shall be issued in the aggregate principal amount of $__________, shall mature on _______ 1 of each year and shall bear interest (calculated on the basis of a 360-day year comprised of twelve 30-day months) at the rates per annum as follows:
Maturity Date
(_______ 1)
Principal
Amount
Interest
Rate
T Term Bond
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(b) Interest on the Series 2023__ Bonds shall be payable from the Interest Payment Date next preceding the date of authentication thereof unless (i) a Series 2023__ 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 shall bear interest from such Interest Payment Date, (ii) a Series 2023__ Bond is authenticated on or before the first Record Date, in which event interest thereon shall be payable from the dated date thereof, or (iii) interest on any Series 2023__ Bond is in default as of the date of authentication thereof, in which event interest thereon shall be payable from the date to which interest has been paid in full, payable on each Interest Payment Date. Interest shall be paid in lawful money of the United States on each Interest Payment Date to the Owners of the Series 2023__ Bonds registered on the Registration Books at the close of business on the immediately preceding Record Date, except as provided below. Except as otherwise provided in Section 2.08(a) of the Indenture, interest shall be paid by check of the Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date to the Series 2023__ Bond Owners at their respective addresses shown on the Registration Books as of the close of business on the preceding Record Date or by wire transfer to Owners of more than $1,000,000 in principal amount of Series 2023__ Bonds who have provided account information and wiring instructions satisfactory to the Trustee. Notwithstanding the foregoing, interest on any Series 2023__ Bond that is not punctually paid or duly provided for on any Interest Payment Date shall, if and to the extent that amounts subsequently become available therefor, be paid on a payment date established by the Trustee to the Owner of such Series 2023__ Bond registered on the Registration Books at the close of business on a special record date to be established by the Trustee for the payment of such defaulted interest, notice of which shall be given to such Owner not less than ten days prior to such special record date. (c) The principal and premium, if any, of the Series 2023__ Bonds shall be payable in lawful money of the United States of America upon presentation and surrender thereof upon maturity or earlier redemption at the Office of the Trustee (d) The Series 2023__ Bonds shall be subject to redemption as provided in Article XX.
(e) As set forth in Section 5.01 of the Indenture, subject only to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth therein and herein, all of the Base Rental Payments and any other amounts (including proceeds of the sale of the Bonds) held in the Construction Account, the Insurance and Condemnation Account, the Interest Account, the Principal Account and the Redemption Account are pledged to secure the payment of the principal of, premium, if any, and interest on the Bonds in accordance with their terms, the provisions of the Indenture and the Act. Said pledge shall constitute a first lien on such assets.
Section 18.03 Form of Series 2023_ Bonds. The Series 2023_ Bonds shall be in substantially the form set forth in Exhibit A hereto, with appropriate or necessary insertions, omissions and variations as permitted or required by the Indenture.
ARTICLE XIX
APPLICATION OF PROCEEDS; ESTABLISHMENT OF ACCOUNTS
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Section 19.01 Application of Proceeds of Sale of Series 2023_ Bonds. On the Closing Date, the net proceeds of the sale of the Series 2023__ Bonds received by the Trustee, $________________, shall be deposited by the Trustee as follows:
(a) The Trustee shall deposit the amount of $_____________ in the Costs of Issuance Account,
(b) The Trustee shall deposit the amount of $_____________ in the Series 2023__ Debt Service Reserve Account, and
(c) The Trustee shall deposit the amount of $___________ in the Series __ Construction Subaccount.
Section 19.02 Series 2023__ Construction Subaccount.
(a) The Trustee shall establish and maintain a subaccount within the Construction Account designated as the “Series 2023__ Construction Subaccount.” On the Closing Date, the Trustee shall deposit in the Series 2023__ Construction Subaccount the amount set forth in Section
19.01(c) hereof. The Trustee shall disburse funds from the Series 2023__ Construction Subaccount to pay for Project Costs in accordance with each Disbursement Direction received by the Trustee from the Manager pursuant to the terms of the Construction Disbursement Agreement. (b) Upon an Event of Default and upon the written direction of the Instructing Owners, all amounts held in the Series 2023__ Construction Subaccount may be (i) distributed for payment of the Series 2023__ Bonds; or (ii) applied to any other use permitted pursuant to the Financing Documents.
Section 19.03 Series 2023__ Debt Service Reserve Account. (a) The Trustee shall establish and maintain a special account designated as the “Series 2023__ Debt Service Reserve Account” which account and amounts therein are hereby pledged to the payment of the Series 2023__ Bonds. On the Closing Date, the Trustee shall deposit in the Series 2023__ Debt Service Reserve Account the amount set forth in Section 19.01(b) hereof.
The Trustee shall deposit amounts received into the Series 2023__ Debt Service Reserve Account as set forth in the applicable Disbursement Direction.
(b) In the event that, on the Business Day immediately preceding each Interest Payment Date or Principal Payment Date, as applicable, (i) amounts in the Interest Account are insufficient to pay the interest on the Series 2023__ Bonds due and payable on such Interest Payment Date, and/or (ii) amounts in the Principal Account are insufficient to pay the principal, if any, of the Series 2023__ Bonds due and payable on such Principal Payment Date, the Trustee shall withdraw from the Series 2023__ Debt Service Reserve Account, to the extent of any funds therein, the amount of such insufficiency, and shall transfer any amounts so withdrawn to the Interest Account and/or Principal Account to be applied to pay such amounts due on the Series 2023__ Bonds. (c) Whenever Series 2023__ Bonds are to be optionally redeemed pursuant to Section 20.01(b) or (c) hereof, a portion of the amount on deposit in the Series 2023__ Debt Service Reserve Account shall, on the date on which amounts to redeem such Series 2023__ Bonds are deposited in the Redemption Account or otherwise deposited with the Trustee pursuant to Section 7 4867-5443-0509v5/022363-0037
10.02 of the Indenture, be transferred by the Trustee from the Series 2023__ Debt Service Reserve Account to the Redemption Account or to such deposit held by the Trustee and shall be applied to the redemption of said Series 2023__ Bonds; provided, however, that such amount shall be so transferred only if and to the extent that the amount remaining on deposit in the Series 2023__ Debt Service Reserve Account will be at least equal to the Series 2023__ Debt Service Reserve Requirement (excluding from the calculation thereof said Series 2023__ Bonds to be redeemed). (d) Whenever the balance in the Series 2023__ Debt Service Reserve Account exceeds the amount required to redeem or pay the Outstanding Series 2023__ Bonds, including interest accrued to the date of payment or redemption and premium, if any, due upon redemption, the Trustee shall, upon receipt of a Written Request of the Authority, transfer the amount in the Series 2023__ Debt Service Reserve Account to the Interest Account, the Principal Account and/or the Redemption Account, as applicable, to be applied, on the next succeeding Interest Payment Date or Principal Payment Date, as applicable, to the payment and redemption of all of the Outstanding Series 2023__ Bonds.
(e) If, as a result of the scheduled payment of principal of or interest on the Series 2023__ Bonds, the Series 2023__ Debt Service Reserve Requirement is reduced, the Trustee shall transfer an amount equal to the amount of such reduction in accordance with a Written Order of the Authority.
ARTICLE XX
REDEMPTION OF SERIES 2023__ BONDS
Section 20.01 Redemption of Series 2023_ Bonds.
(a) Extraordinary Redemption. The Series 2023_ Bonds shall be subject to redemption in accordance with Section 4.01(a) of the Indenture. (b) Optional Redemption at Par. The Series 2023__ Bonds maturing on or after _______ 1, 20__, shall be subject to redemption, at the option of the Authority, in whole or in part, on any date on or after _______ 1, [2033], in Authorized Denominations, from and to the extent of prepaid Base Rental Payments paid pursuant to Section 7.02(a) of the Lease Agreement, at a Redemption Price equal to the principal amount of the Series 2023__ Bonds to be redeemed, plus accrued interest thereon to the date of redemption.
(c) Optional Redemption with Make-Whole Payment. The Series 2023__ Bonds shall be subject to redemption prior to ___________ 1, 20__, at the option of the Authority, as a whole or in part from and to the extent of prepaid Base Rental Payments paid pursuant to Section 7.02(a) of the Lease Agreement, in Authorized Denominations, at the “Make-Whole Redemption Price.” The “Make-Whole Redemption Price,” as determined by the Authority, is the greater of (1) 100% of the principal amount of the Series 2023__ Bonds being redeemed; and (2) the sum of the present values of the remaining unpaid scheduled payments of principal and interest on any Series 2023__ Bonds being redeemed, not including any portion of those payments of interest accrued and unpaid to the date of redemption, discounted to the redemption date on a semi-annual basis, (assuming a 360-day year consisting of twelve 30-day months), at the Comparable Treasury Yield plus the following make-whole call spread for the Series 2023__ Bonds maturing on the dates 8 4867-5443-0509v5/022363-0037
set forth below, plus accrued and unpaid interest on the Series 2023__ Bonds to be redeemed on the redemption date:
Maturity Date
Make-Whole Call Spread
(Basis Points)
(d) Mandatory Sinking Fund Redemption. The Series 2023__ Bonds with stated maturities on _______ 1, 20__ are subject to mandatory sinking fund redemption in part (by lot) on each _______ 1 on and after _______ 1, 20__, in integral multiples of $5,000 at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption, without premium, in accordance with the following schedule:
Redemption Date
(_______ 1)
Principal
Amount
$
*
* Final Maturity.
In the event of a partial optional redemption or extraordinary mandatory redemption of any of the Term Bonds, each of the remaining mandatory sinking fund payments for such Term Bonds will be reduced, as nearly as practicable, on a pro rata basis in the amount of $5,000 or any integral multiple thereof as directed by an Authorized City Representative, which direction shall include a revised schedule of the remaining mandatory sinking fund payments.
Section 20.02 Selection of Bonds for Redemption.
(a) So long as the Series 2023__ Bonds are registered in book-entry only form and so long as DTC or a successor securities depository is the sole registered owner of the Series 2023__ Bonds, if less than all of the Series 2023__ Bonds of a maturity are called for prior redemption, the particular Series 2023__ Bonds or portions thereof to be redeemed shall be selected on a “Pro Rata Pass-Through Distribution of Principal” basis in accordance with DTC procedures, provided that, so long as the Series 2023__ Bonds are held in book-entry form, the selection for redemption of such Series 2023__ Bonds shall be made in accordance with the operational arrangements of DTC then in effect and if the DTC operational arrangements do not allow redemption on a Pro Rata Pass Through Distribution of Principal basis, the Series 2023__ Bonds will be selected for redemption in accordance with DTC procedures by lot and in integral multiples of $5,000.
Notwithstanding the foregoing, if the Series 2023__ Bonds are not then in book-entry form at the time of such redemption, on each redemption date, the Trustee shall select the Series 2023__ 9 4867-5443-0509v5/022363-0037
Bonds for redemption as a whole or in part on any date as directed by the Authority in writing, and by lot within each maturity in integral multiples of $5,000 in accordance with Section 20.01 hereof.
ARTICLE XXI
MISCELLANEOUS
Section 21.01 Terms of the Series 2023_ Bonds Subject to the Master Indenture.
Except as expressly provided in this _______ Supplemental Indenture, every term and condition contained in the Master Indenture shall apply to this _______ Supplemental Indenture and the Series 2023_ Bonds with the same force and effect as if the same were herein set forth at length, with such omissions, variations and modifications thereof as may be appropriate to make the same conform to this _______ Supplemental Indenture.
Section 21.02 Partial Invalidity. If any one or more of the agreements, conditions, covenants or terms required herein to be observed or performed by or on the part of the Authority, the City or the Trustee shall be contrary to law, then such agreement or agreements, such condition or conditions, such covenant or covenants or such term or terms shall be null and void to the extent contrary to law and shall be deemed separable from the remaining agreements, conditions, covenants and terms hereof and shall in no way affect the validity hereof or of the Bonds, and the Owners shall retain all the benefit, protection and security afforded to them under any applicable provisions of law.
The Authority, the City and the Trustee hereby declare that they would have executed this _______ Supplemental Indenture, and each and every Article, Section, paragraph, subsection, sentence, clause and phrase hereof and would have authorized the execution and delivery of the Series 2023_ Bonds pursuant hereto irrespective of the fact that any one or more Articles, Sections, paragraphs, subsections, sentences, clauses or phrases hereof or the application thereof to any person or circumstance may be held to be unconstitutional, unenforceable or invalid.
Section 21.03 Waiver of Personal Liability. Notwithstanding anything contained herein to the contrary, no member, officer or employee of the Authority or the City shall be individually or personally liable for the payment of any moneys, including without limitation, the principal of or interest on the Series 2023_ Bonds, but nothing contained herein shall relieve any member, officer or employee of the City or the Authority from the performance of any official duty provided by any applicable provisions of law, by any Financing Document or hereby.
Section 21.04 Successor Deemed Included in all References to Predecessor. Whenever the Authority, the City or the Trustee, or any officer thereof, is named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in the Authority, the City or the Trustee, or such officer, and all agreements, conditions, covenants and terms required hereby to be observed or performed by or on behalf of the Authority, the City or the Trustee, or any officer thereof, shall bind and inure to the benefit of the respective successors thereof whether so expressed or not.
Section 21.05 Execution in Counterparts. This _______ Supplemental Indenture may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument.
Section 21.06 Governing Law. This _______ Supplemental Indenture shall be construed and governed in accordance with the laws of the State of California. 10 4867-5443-0509v5/022363-0037
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IN WITNESS WHEREOF, the Authority and the City have caused this _______ Supplemental Indenture to be signed in their respective names by their representative thereunto duly authorized, and the Trustee, in token of its acceptance of the trusts created hereunder, has caused this _______ Supplemental Indenture to be signed in its corporate name by its officer thereunto duly authorized, all as of the day and year first above written.
ANAHEIM PUBLIC FINANCING AUTHORITY
By:
Executive Director
ATTEST:
Secretary
CITY OF ANAHEIM
By:
City Manager
ATTEST:
City Clerk
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By:
Authorized Officer
A-1-1
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EXHIBIT A
FORM OF SERIES 2023__ BOND
No. ____ $___________
UNLESS THIS SERIES 2023__ BOND IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SERIES 2023__ BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN 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.
ANAHEIM PUBLIC FINANCING AUTHORITY
TAXABLE LEASE REVENUE BONDS
(ANAHEIM ARENA IMPROVEMENT PROJECT)
2023 SERIES _
INTEREST RATE MATURITY DATE DATED DATE CUSIP
______% _______ 1, 20__ ___________, 2023 ________
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: _________________________ DOLLARS
The Anaheim Public Financing Authority (the “Authority”), for value received, hereby promises to pay, solely from the Base Rental Payments (as hereinafter defined) and amounts in certain funds and accounts held under the Indenture (as hereinafter defined), to the Registered Owner identified above or registered assigns (the “Registered Owner”); on the Maturity Date identified above or on any earlier redemption date, the Principal Amount identified above in lawful money of the United States of America; and to pay interest thereon at the Interest Rate identified above in like lawful money from the date hereof payable semiannually on _______ 1 and _______ 1 in each year, commencing on _______ 1, 2023 (the “Interest Payment Dates”), until payment of such Principal Amount in full. This Bond shall bear interest from the Interest Payment Date 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 preceding Record Date, in which event it will bear interest from such Interest Payment Date, (ii) this Bond is authenticated on or before the first Record Date, in which event it will bear interest from the Dated Date identified above, or (iii) if at the time of authentication, interest on this Bond is in default, in which event interest on this Bond will be payable from the date to which interest hereon has been paid in full, payable on each Interest Payment Date). The Principal Amount hereof is payable upon surrender hereof upon maturity or earlier redemption in full at the Office of the Trustee (as hereinafter defined). Interest hereon is A-2
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payable by wire or check of U.S. Bank Trust Company, National Association, as Trustee (the “Trustee”), mailed by first class mail, postage prepaid, on each Interest Payment Date to the Registered Owner hereof at the address of the Registered Owner shown on the Registration Books at the close of business on the fifteenth calendar day of the month next preceding such Interest Payment Date; or by wire transfer to Owners of more than $1,000,000 in principal amount of Series 2023__ Bonds (as defined below) who have provided account information and wiring instructions satisfactory to the Trustee. “Office of the Trustee” means the principal corporate trust office of the Trustee in Los Angeles, California, or such other office as may be specified to the Authority and the City of Anaheim (the “City”) by the Trustee in writing, except that with respect to presentation of Bonds for payment or for registration of transfer and exchange such term shall mean the office or the agency of the Trustee at which, at any particular time, its corporate trust agency shall be conducted as specified to the Authority and the City by the Trustee in writing.
This Bond is one of a series of a duly authorized issue of bonds issued for the purpose of financing the acquisition, construction and/or installation of a new City improvements, facilities and equipment, and is one of the series of bonds designated as the “Anaheim Public Financing Authority Taxable Lease Revenue Bonds (Anaheim Arena Improvement Project), 2023 Series __” (the “Series 2023__ Bonds”) in the aggregate principal amount of $__________. The Series 2023__ Bonds are issued pursuant to the Master Indenture, dated as of __________ 1, 2023 (the “Master Indenture”) as supplemented by the _______ Supplemental Indenture dated as of ________ 1, 2023, each by and among the Authority, the City and the Trustee (together with the Master Indenture, the “Indenture”), by and among the Authority, the City and the Trustee. [Simultaneously with the issuance of the Series 2023__ Bonds], the Authority is issuing its “Anaheim Public Financing Authority Taxable Lease Revenue Bonds (Anaheim Arena Improvement Project), 2023 Series __” (the “Series 2023__ Bonds”) in the aggregate principal amount of $__________ pursuant to the Indenture, as supplemented by the _______ Supplemental Indenture dated as of ________ 1, 2023, by and among the Authority, the City and the Trustee]. Pursuant to and as more particularly provided in the Indenture, additional bonds (“Additional Bonds”), may be issued by the Authority secured by a lien on the Base Rental Payments, the other Lease Revenues and certain funds and accounts described below on a parity with the lien securing the Series 2023__ Bonds and the Series 2023__ Bonds. The Series 2023__ Bonds, the Series 2023__ Bonds and any Additional Bonds are collectively referred to as the “Bonds.” The Indenture is entered into, and this Bond is issued under, the Marks-Roos Local Bond Pooling Act of 1985 (the “Act”) and the laws of the State of California. This reference incorporates the Indenture herein and by acceptance hereof the owner of this Bond assents to said terms and conditions of the Indenture. Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
Pursuant to the Indenture, the principal of and interest on the Bonds are payable solely from certain Base Rental Payments under and pursuant to that certain Lease Agreement, dated as of __________ 1, 2023 (the “Lease Agreement”), by and between the City, as lessee, and the Authority, as lessor, all of which rights to receive such Base Rental Payments have been assigned without recourse by the Authority to the Trustee. Subject only to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth therein, all of the Base Rental Payments and any other amounts (including proceeds of the sale of the Bonds) held in the Interest Account, the Principal Account and the Redemption Account established under the Indenture are pledged to secure the payment of the principal of, premium, if any, and interest on the Bonds in accordance with their terms, the provisions of the Indenture and the Act. The Series 2023__ Bonds are additionally secured by a pledge of all amounts held in the Series 2023__ Debt A-3
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Service Reserve Account and the Series 2023__ Work Stoppage Reserve Account. Said pledge constitutes a first lien on such assets.
The Series 2023__ Bonds are authorized to be issued in the form of fully registered bonds without coupons in denominations of $5,000 or any integral multiple thereof (“Authorized Denominations”).
The Series 2023__ Bonds shall be subject to redemption, in whole or in part, on any date, in Authorized Denominations, at the option of the Authority, from and to the extent of Insurance and Condemnation Proceeds received with respect to all or a portion of the Property, deposited by the Trustee in the Redemption Account pursuant to the Indenture, at a Redemption Price equal to the principal amount of the Series 2023__ Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without premium.
The Series 2023__ Bonds maturing on or after _______ 1, 20__, shall be subject to redemption, at the option of the Authority, in whole or in part, on any date on or after _______ 1, 20__, in Authorized Denominations, from and to the extent of prepaid Base Rental Payments paid pursuant to the Lease Agreement, at a Redemption Price equal to the principal amount of the Series 2023__ Bonds to be redeemed, plus accrued interest thereon to the date of redemption.
The Series 2023__ Bonds shall be subject to redemption prior to ___________ 1, 20__ at the option of the Authority, as a whole or in part from and to the extent of prepaid Base Rental Payments paid pursuant to the Lease Agreement, in Authorized Denominations, at the “Make-Whole Redemption Price.” The “Make-Whole Redemption Price,” as determined by the Authority, is the greater of (1) 100% of the principal amount of the Series 2023__ Bonds being redeemed; and (2) the sum of the present values of the remaining unpaid scheduled payments of principal and interest on any Series 2023__ Bonds being redeemed, not including any portion of those payments of interest accrued and unpaid to the date of redemption, discounted to the redemption date on a semi-annual basis, (assuming a 360-day year consisting of twelve 30-day months), at the Comparable Treasury Yield plus the following make-whole call spread for the Series 2023__ Bonds maturing on the dates set forth below, plus accrued and unpaid interest on the Series 2023__ Bonds to be redeemed on the redemption date:
Maturity Date
Make-Whole Call Spread
(Basis Points)
The Series 2023__ Bonds with stated maturities on _______ 1, 20__ are subject to mandatory sinking fund redemption in part (by lot) on each _______ 1 on and after _______ 1, 20__, in integral multiples of $5,000 at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption, without premium, in accordance with the following schedule:
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Redemption Date
(_______ 1)
Principal
Amount
$
*
* Final Maturity.
Notice of redemption shall be given by the Trustee, not less than 20 nor more than 60 days prior to the redemption date (i) as to Bonds not registered in the name of a Securities Depository or its nominee, to the respective Owners of the Bonds designated for redemption at their addresses appearing on the Registration Books, (ii) as to Bonds registered in the name of a Securities Depository or its nominee, to such Securities Depository for such Bonds, and (iii) the Information Services. Notice of redemption to the Owners pursuant to (i) above shall be given by mail at their addresses appearing on the Registration Books, or any other method agreed upon by such Owner and the Trustee. Notice of redemption to the Securities Depositories pursuant to (ii) above and the Information Services pursuant to (iii) above shall be given by electronically secure means, or any other method agreed upon by such entities and the Trustee.
Neither failure to receive any such notice so given, nor any defect therein, shall affect the validity of the proceedings for the redemption of such Series 2023__ Bonds or the cessation of accrual of interest thereon from and after the date fixed for redemption. The Redemption Price of the Series 2023__ Bonds to be redeemed shall be paid only upon presentation and surrender thereof at the Office of the Trustee. From and after the date fixed for redemption of any Series 2023__ Bonds, interest on such Series 2023__ Bonds will cease to accrue and become payable.
Subject to the limitations and upon payment of the charges, if any, provided in the Indenture, fully registered Series 2023__ Bonds may be exchanged at the Office of the Trustee for a like aggregate principal amount and maturity of fully registered Series 2023__ Bonds of other authorized denominations.
This Bond is transferable by the Registered Owner hereof, in person or by his duly authorized attorney, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer a new fully registered Series 2023__ Bond or Series 2023__ Bonds, in Authorized Denominations, for the same aggregate principal amount will be issued to the transferee in exchange therefor. The Authority, the City and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Authority, the City and the Trustee shall not be affected by any notice to the contrary.
The Indenture and the rights and obligations of the Authority, the City, the Owners of the Bonds and the Trustee may be modified, amended or waived from time to time and at any time in the manner, to the extent, and upon the terms provided in the Indenture; provided that no such modification, amendment or waiver shall (i) extend the fixed maturity of any Bonds, or reduce the amount of principal thereof or the rate of interest thereon, or extend the time of payment, without the written consent of the Owner of each Bond so affected; (ii) permit the creation of any lien or security interest on the Base Rental Payments, other Lease Revenues and other Collateral pledged under the Indenture and the other Collateral Documents prior to or on a parity with the lien and security interest A-5
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created by the Indenture and the other Collateral Documents or deprive the Owners of the Bonds of the lien and security interest created by the Indenture and the other Collateral Documents on such Base Rental Payments, other Lease Revenues and other Collateral (except as expressly provided in the Indenture and the other Collateral Documents), without the written consent of the Owners of all the Bonds then Outstanding; (iii) modify or amend the provisions of the Indenture relating to amendments thereto or the definition of “Required Bond Owners” without the prior written consent of the Owners of all the Bonds then Outstanding; (iv) change any provisions in the Indenture or the Accounts Agreement in a manner that would alter the pro rata sharing of payments or the flow of funds provisions required thereunder without, in each case, the written consent of the Owners directly affected thereby; or (v) release all or substantially all the Collateral from the liens and security interests created by the Indenture and the other Collateral Documents without the written consent of the Owners of all the Bonds then Outstanding (other than in connection with any sale of the applicable Collateral permitted by the Collateral Documents, including without limitation, any substitution or release of Additional Project Property in accordance with Section 7.01 of the Ground Lease).
The Indenture contains provisions permitting the Authority to make provision for the payment of interest on, and the principal and premium, if any, of any of the Bond so that such Bonds shall no longer be deemed to be outstanding under the terms of the Indenture.
All obligations of the Authority under the Indenture shall be special obligations of the Authority, payable solely from Lease Revenues and the other assets pledged therefor under the Indenture; provided, however, that all obligations of the Authority under the Bonds shall be special obligations of the Authority, payable solely from Base Rental Payments, other Lease Revenues and the other assets pledged therefor under the Indenture and the other Collateral Documents. Neither the faith and credit nor the taxing power of the Authority, the City or the State of California, or any political subdivision thereof, is pledged to the payment of the Bonds.
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IN WITNESS WHEREOF, the Authority has caused this Bond to be signed in its name and on its behalf by the facsimile signatures of its Chair and Secretary, all as of the Dated Date identified above.
ANAHEIM PUBLIC FINANCING AUTHORITY
By:
Chair
Attest:
Secretary
[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]
This is one of the Series 2023__ Bonds described in the within-mentioned Indenture and registered on the Registration Books.
Date: _______________ U.S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Signatory
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[FORM OF LEGAL OPINION]
The following is a true copy of the opinion rendered by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, in connection with the issuance of, and dated as of the date of the original delivery of, the Bonds. A signed copy is on file in my office.
Secretary of the Anaheim Public Financing Authority
[FORM OF 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.
Note: The signature(s) on this Assignment must
correspond with the name(s) as written on the face of the within pond in every particular without alteration or
enlargement or any change whatsoever.
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EXHIBIT B
DESCRIPTION OF PROJECT