Stradling – Draft of 12/16/22
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$
[PAR AMOUNT]
CITY OF BURBANK, CALIFORNIA
Burbank Water and Power
Electric Revenue Bonds, Series of 2023
______________________________
BOND PURCHASE AGREEMENT
______________________________
[BPA DATE], 2023
City of Burbank
275 East Olive Avenue
Burbank, California 91502
Ladies and Gentlemen:
The undersigned, RBC Capital Markets , LLC as underwriter (the “Underwriter”) , hereby offers to enter into this Bond Purchase Agreement (the “Purchase Agreement”) with the City of Burbank, California (the “City”), which, upon the acceptance of this offer by the City, will be binding upon the City and the Underwriter. This offer is made subject to written acceptance by the City prior to 11:59 P.M., California time, on the date hereof. If this offer is not so accepted, this offer will be subject to withdrawal by the Underwriter upon notice delivered to the City at any time prior to acceptance by the City . All capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed thereto in the Official Statement (as hereinafter defined).
1. P urchase, Sale and Delivery of the Bonds.
(a) Subject to the terms and conditions, and in reliance upon the representations , w
arranties and agreements set forth herein, the Underwriter hereby agrees to purchase from the City, and the City agrees to sell and deliver to the Underwriter, all (but not less than all) of the $[PAR AMOUNT] aggregate principal amount of the City’s Burbank Water and Power Electric Revenue Bonds, Series of 2023 (the “Bonds”) . The purchase price for the Bonds shall be $___________ (representing the $ [PAR AMOUNT] aggregate principal amount of the Bonds , [plus /less] $___________ of original issue [premium/discount], less $___________ of Underwriter’s discount). (b) The Bonds are authorized and being issued pursuant to Article 12 of Chapter 4 of Title 2 of the Burbank Municipal Code, as amended (the “City Code”), and a resolution adopted by the City Council of the City on [RESO DATE] , 2023 (the “Bond Resolution”). The Bonds will also be issued pursuant to the Burbank Water and Power Water Electric Revenue Bond Indenture, dated as of October 1, 1998 (the “Master Electric Revenue Bond Indenture”), by and between the City and U.S. Bank Trust Company, National Association, as successor trustee (the “Trustee”), as previously amended and supplemented, and as amended and supplemented by the Seventh Supplemental Burbank Water and Power Electric Revenue Bond Indenture, dated as of February 1, 2023 (the “Seventh Supplemental Indenture”), by and between the City and the Trustee, relating to the Bonds. The Master Electric Revenue Bond Indenture, as previously amended and supplemented, ATTACHMENT 5
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and as amended and supplemented by the Seventh Supplemental Indenture, is referred to herein as the “Indenture.”
The Bonds shall be dated the date of delivery thereof and shall mature on such dates, bear interest at such rates and be subject to redemption, all as set forth in Schedule I attached hereto.
Interest on the Bonds shall be payable semiannually on June 1 and December 1 of each year, commencing June 1, 2023. The Bonds shall be substantially in the form described in, and shall be issued and secured under the provisions of, the Indenture . The Bonds are secured by a pledge of and lien on, the Electric Net Revenues (all as defined in the Indenture) and other funds pledged therefor under the Indenture and will otherwise have such terms as are described in the Official Statement.
The Bonds are being issued for the purpose of providing funds to (i) finance costs of the 2023 Project, [(ii) fund a deposit to the Parity Reserve Fund for the Bonds] and (iii) pay costs of issuance of the Bonds.
The City will undertake, pursuant to a Continuing Disclosure Agreement relating to the Bonds (the “Continuing Disclosure Agreement”), to provide certain annual financial information and operating data relating to the Electric System and notices of the occurrence of certain events . A description of this undertaking and the proposed form of Continuing Disclosure Agreement are set forth in the Preliminary Official Statement (as defined herein) and will be set forth in the Official Statement (as defined herein).
(c) At 8:00 A.M., California time, on [CLOSING DATE] , 2023 or at such other time or on such other date as mutually agreed upon by the City and the Underwriter (such time and date herei n referred to as the “Closing Date”), the City will, subject to the terms and conditions hereof, sell and deliver, or cause to be delivered, the Bonds to the Underwriter, in definitive form, duly executed and authenticated, together with the other documents mentioned herein, and subject to the terms and conditions hereof, the Underwriter will accept such delivery and pay the purchase price of the Bonds as set forth in paragraph (a) above, in immediately available funds (such delivery and payment being herei n referred to as the “Closing”) to the order of the Trustee . Sale, delivery and payment as aforesaid shall be made at the offices of Norton Rose Fulbright US LLP (“Bond Counsel”), 555 South Flower Street, 41
st Floor, Los Angeles, California, or such other place (or via such electronic means) as shall have been mutually agreed upon by the City and the Underwriter, except that the Bonds shall be delivered through the Trustee via the Fast Automated Securities Transfer (FAST) book-entry system of The Depository Trust Company (“DTC”) in New York, New York, or at such other place as shall have been mutually agreed upon by the City and the Underwriter, in fully registered book- entry eligible form (which may be typewritten) and registered in the name of Cede & Co. as nominee of DTC.
2. E
stablishment of Issue Price of the Bonds.
(a) The Underwriter agrees to assist the City in establishing the issue price of the Bonds and shall execute and deliver to the City at or before the Closing Date an “issue price” or similar certificate, together with the supporting pricing wires or equivalent communications, substantially in the form attached hereto as Exhibit D, with such modifications as may be appropriate or necessary, in the reasonable judgment of the Underwriter, the City and Bond Counsel (as hereinafter defined), to accurately reflect, as applicable, the sales price or prices or the initial offering price or prices to the public of the Bonds.
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(b) Wi th respect to Bonds of those maturities as to which at l east 10% of the Bonds of the maturity has been sold to the public (defined in paragraph (f) below) at a single price (the “General Rule”), based on reporting by the Underwriter to the City on the date hereof and prior to the execution of this Purchase Agre ement, which maturities are indicated in Schedule I attached hereto as having satisfied the General Rule (the “General Rule Maturities”), the City will treat the first price at which 10% of each such maturity of the Bonds was sold to the public as the issue price of that maturity. With respect to Bonds of those maturities as to which the General Rule has not been satisfied, if any, based on reporting by the Underwriter to the City on the date hereof and prior to the execution of this Purchase Agreement , which maturities are indicated in Schedule I attached hereto as being subject to the “hold-the -offering-price rule,” defined below (the “ Hold-the-Offering-Price Maturities”), the Underwriter and the City agree that the rules in paragraph (c) below shall apply.
For purposes of this section, for Bonds maturing on the same date but having different interest rates, each separate group of Bonds having a different interest rate is subject to the General Rule or paragraph (c) below, as the case may be, as if such separate group of Bonds were a separate maturity. (c) T
he Underwriter confirms that it has offered the Bonds to the public on or before the date of this Purchase Agreement at the offering price or prices (t he “initial offering price”), or the corresponding yields, set forth in the final Official Statement and on Schedule I attached hereto.
Schedule I also sets forth, identified under the column “Hold-the -Offering Price Rule Used,” as of the date of this Purchase Agreement, the maturities, if any, of the Bonds for which the 10% test has not been satisfied and for which the City and the Underwriter agree that the restrictions set forth in the next sentence shall apply, which will allow the City to treat the ini tial offering price to the public of each such maturity as of the sale date as the issue price of that maturity (the “hold-the -offering- price rule”). So long as the hold-the-offering-price rule remains applicable to any maturity of the Bonds, the Underwriter will neither offer nor sell unsold Bonds of that maturity, if any, to any person at a price that is higher than the initial offering price to the public during the period starting on the sale date and ending on the earlier of the following:
(1) the close of the fifth (5
th) business day after the sale date; or
(2) the date on which the Underwriter has sold at least 10% of that maturity of the Bonds to the public at a price that is no higher than the initial offering price to the public.
The Underwriter will advise the City promptly after the close of the fifth (5 th) business day after the sale date whether it has sold , within such five -business-day period, at least 10% of each Hold-the- Offering-Price Maturity of the Bonds, if any, to the public at a price that is no higher than the initial offering price to the public.
(d) The Underwriter confirms that:
(i) any selling group agreement and any retail or other third- party distribution agreement relating to the initial sale of the Bonds to the public, if applicabl e, together with the related pricing wires, contains or will contain language obligating each dealer who is a member of the selling group and each broker-dealer that is a party to such retail or other third-party distribution agreement, as applicable, to ( A) comply with the hold-the-offering- price rule, if applicable, if and for so long as directed by the Underwriter; (B) promptly notify the Underwriter of any sales of Bonds that, to its knowledge, are made to a purchaser who is a related party to an underwriter participating in the initial sale of the Bonds to the public ATTACHMENT 5
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(each such term being used as defined below), and (C) acknowledge that, unless otherwise advised by the dealer or broker-dealer, the Underwriter shall assume that each order submitted by the dealer or broker-dealer is a sale to the public; and (ii) any selling group agreement relating to the initial sale of the Bonds to the public, if applicable, together with the related pricing wires, contains or will contain language obligating each dealer that is a party to a retail or other third-party distribution agreement to be employed in connection with the initial sale of the Bonds to the public to require each broker-dealer that is a party to such retail or other third- party distribution agreement to comply with the hold-the -offering-price rule, if applicable, in each case if and for so long as directed by the Underwriter and as set forth in the related pricing wires. (e) The City acknowledges that, in making the representations set forth in this Section, the Underwriter will rely on (i) in the event a selling group has been created in connection with the initial sale of the Bonds to the public, the agreement of each dealer who is a member of the selling group to comply with the requirements for establishing issue price of the Bonds, including, but not limited to, its agreement to comply with the hold -the-offering-price rule, if applicable to the Bonds, as set forth in a selling group agreement and the related pricing wires, (ii) in the event a retail or other third-party distribution agreement was employed in connection with the initial sale of the Bonds to the public, the agreement of each broker-dealer that is a party to such agree ment to comply with the requirements for establishing issue price of the Bonds , including, but not limited to, its agreement to comply with the hold-the-offering-price rule, as set forth in the retail or other third-party distribution agreement and the related pricing wires . The City further acknowledges that the Underwriter shall not be liable for the failure of any dealer who is a member of a selling group, or of any broker-dealer that is a party to a retail or other third-party distribution agreement, to comply with the requirements for establishing issue price of the Bonds , including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if applicable to the Bonds. (f) The Underwriter acknowledges that sales of any Bonds to any person that is a related party to an underwriter participating in the initial sale of the Bonds to the public shall not constitute sales to the public for purposes of this section. Further, for purposes of this section:
(1) “public” means any person other than an underwriter or a related party, (2) “underwriter” (when used with a lower case “u”) means (A) any person that agrees pursuant to a written contract with the City (or with the lead underwriter to form an underwriting syndicate) to participate in the initial sale of the Bonds to the public and (B) any person that agrees pursuant to a written contract directly or indirectly with a person described in clause (A) to participate in the initial sale of the Bonds to the public (including a member of a selling group or a party to a retail or other third-party distribution agreement participating in the initial sale of Bonds to the public), (3) a purchaser of any of Bonds is a “related party” to an underwriter if the underwriter and the purchaser are subject, directly or indirectly, to (A) more than 50% common ownership of the voting power or the total value of their stock, if both entities are corporations (including direct ownership by one corporation of another), (B) more than 50% common ownership of their capital interests or profits interests, if both entities are partnerships (including direct ownership by one partnership of another), or (C) more than 50% common ownership of the value of the outstanding stock of the corporation or the ATTACHMENT 5
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capital interests or profit interests of the partnership, as applicable, if one entity is a corporation and the other entity is a partnership (including direct ownership of the applicable stock or interests by one entity of the other), and
(4) “sale date” means the date of execut ion of this Purchase Agreement by all parties.
3. U se and Preparation of Official Statement . The City hereby ratif ies, confirm s and approves of the use and distribution by the Underwriter prior to the date hereof of an official statement in preliminary form d ated [POS DATE], 2023 relating to the Bonds (which, together with all appendices thereto, is referred to herein as the “Preliminary Official Statement”) . The City ha s deemed final the Preliminary Official Statement as of its date for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934 (“Rule 15c2 -12”), except for information permitted to be omitted therefrom by Rule 15c2-12. The City hereby acknowledges that the Preliminary Official Statement has been made available to investors i n electronic form. The City hereby agrees to deliver or cause to be delivered to the Underwriter, within seven (7) business days of the date hereof and at least in sufficient time to accompany any orders or confirmations that request payment from any customer, copies of the final official statement, dated the date hereof (which, together with all information previously permitted to have been omitted by Rule 15c2-12 and any amendments or supplements to such official statement as have been approved by the City and the Underwriter is referred to herein as the “Official Statement”) in sufficient quantity to enable the Underwriter to comply with the rules of the Securities and Exchange Commission and the Municipal Securities Rulemaking Board. The City hereby approves of the use and distribution by the Underwriter of the Official Statement in connection with the offer and sale of the Bonds and acknowledges that the Official Statement may be made available to investors in electronic form . At the time of or prior to the Closing Date, the Underwriter shall file a copy of the Official Statement in electronic form with, and as permitted by, the Municipal Securities Rulemaking Board through its Electronic Municipal Market Access System . The Underwriter shall advise the City of the date of such filing.
4. Representations and W
arranties of the City. The City hereby represents and warrants to the Underwriter that, as of the date hereof and the Closing Date:
(a) T he City is a municipal corporation and a charter city duly organized and existing under and pursuant to the Constitution and laws of the State of California and the Charter of the City.
(b) The City has full legal right, power and authority to issue the Bonds, to sell the Bonds to the Underwriter as provided in this Purchase Agreement, to execute and deliver the Indenture, the Continuing Disclosure Agreement, the Official Statement and this Purchase Agreement.
(c) The Bond Resolution has been duly and validly adopted by the City and is in full force and effect, and this Purchase Agreement has been duly authorized, executed and delivered by the City and, assuming due authorization and execution thereof by the Underwriter, constitutes a legal, valid and binding agreement of the City enforceable in accordance with its terms, subject to laws relating to bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and the application of equitable principles if equitable remedies are sought.
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(d) The execution and delivery of the Bonds, the Indenture and the Continuing Disclosure Agreement have been duly authorized by the City; and, on or prior to the Closing Date, the Bonds, the Indenture and the Continuing Disclosure Agreement will be executed and delivered by the City and, assuming due authorization and execution thereof by the other respective parties thereto, if any, the Bonds, the Indenture, and the Continuing Disclosure Agreement will constitute legal, valid and binding agreements of the City enforceable in accordance with their terms, subject to laws relating to bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and the application of equitable principles if equitable remedies are sought. (e) The City has complied with all provisions of the Bond Resolution an d the Indenture required to be complied with as of the date hereof, and will at the Closing Date be in compliance, in all respects, with the Bond Resolution, the Indenture, the Continuing Disclosure Agreement and this Purchase Agreement.
(f) The City has duly authorized and approved the execution and delivery of the Bonds, including their issuance and sale to the Underwriter pursuant to this Purchase Agreement , the Indenture, the Continuing Disclosure Agreement, this Purchase Agreement and the Official Statement, and has duly authorized and approved the performance by the City of its obligations contained in, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions contemplated by, each of those documents. (g) The City is not, and as of the Closing Date will not be, in breach of or in default under any applicable law or administrative rule or regulation of the State of California, the United States, or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound which in any way, directly or indirectly, affects the issuance of the Bonds or the validity thereof and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute such an event of default under any such instrument; and the adoption of the Bond Resolution, the execution and delivery of the Bonds, the Indenture, the Continuing Disclosure Agreement, this Purchase Agreement and the other instruments contemplated by any of such documents to which the City is a party, and compliance with the provisions of each thereof, do not and will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State of California, the United States, or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon Electric Net Revenues or any of the other property or assets of the City, except as provided in the Indenture. (h) All approvals, licenses, consents, authorizations, elections and orders of, or filings or registrations with, any governmental authority, legislative body, board, agency or City having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the City of its obligations hereunder or under the Indenture, the Bonds or the Continuing Disclosure Agreement have been obtained and are in fu ll force and effect.
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(i) Except as disclosed in the Preliminary Official Statement and the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending or, to the best knowledge of the City after reasonable investigation, threatened against the City, (i) in any way questioning the existence of the City or the titles of the officers of the City to their respective offices; (ii) seeking to restrain or enjoin the issuance, sale or delivery of any or all of the Bonds, or the collection of Electric Net Revenues to pay any or all of the Bonds; (iii) in any way contesting or affecting the validity of the Indenture, the Continuing Disclosure Agreement , the Bonds or their tax-exempt status, this Purchase Agreement or the collection of such revenues or the pledge thereof, or contesting the powers of the City or any official of the City in connection with the adoption of the Bond Resolution, the issuance, sal e or delivery of the Bonds, or the execution and delivery of the Indenture, the Continuing Disclosure Agreement or this Purchase Agreement or the performance of its obligations contained therein or herein; (iv) which reasonably may be expected to result in any material adverse change in the business, properties, assets or financial condition of the Electric System or which reasonably may be expected to have a material adverse effect on the ability of the City to meet its obligations under the Indenture, the Continuing Disclosure Agreement, the Bonds or this Purchase Agreement; or (v) asserting that the Preliminary Official Statement or the Official Statement contained or contains any untrue statement of material fact or omitted or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(j) The Indenture, the Continuing Disclosure Agreement , the Bonds and the other documents described in the Preliminary Official St atement and the Official Statement conform in all material respects to the descriptions thereof contained in the Preliminary Official Statement and the Official Statement.
(k) The City will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request (i) to qualify the Bonds for offer and sale under the “blue sky” or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate, provided that in connection therewith the City will not be required to file a general consent to service of process in any jurisdiction; and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds. In particular, the City will comply with all securities laws, rules and regulations relating to Rule 15c2- 12 applicable to the Bonds.
(l) Any certificates signed by the Mayor, the Vice Mayor, the City Manager, the Assistant City Manager, the General Manager, any Assistant General Manager, the Chief Financial Officer of Burbank Water and Power, the Financial Services Director or other authorized officer of the City will be deemed a representation and warranty by the City to the Underwriter as to the statements made therein.
(m) The City will apply the proceeds of the Bonds in accordance with the Indenture and as contemplated by the Official Statement. (n) The City has not, and as of the Closing Date will not have, failed to pay principal and interest, when due, on any of its outstanding bonds or notes.
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(o) Between the date of this Purchase Agreement and the Closing Dat e, the City will not, without prior written notice to the Underwriter, issue, any bonds, notes or other obligations for borrowed money payable from Electric Net Revenues, and subsequent to the respective dates as of which information is given in the Prelim inary Official Statement and the Official Statement up to and including the Closing Date, the City has not incurred and will not incur any material liabilities, direct or contingent, in any case, other than in the ordinary course of business or as discusse d in the Preliminary Official Statement and the Official Statement. (p) As of its date and the date hereof, the Preliminary Official Statement (excluding information concerning DTC and the book-entry system as to which no representation is made) did not, except as to the information permitted to be omitted by Rule 15c2-12, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (q) As of the date hereof and at all times subsequent hereto to and including the date which is 25 days following the End of the Underwriting Period (as defined herein) for the Bonds, the Official Statement (excluding information concerning DTC and the book-entry system and the information provided by the Underwriter under the caption “UNDERWRITING” (collectively, the “Excluded Information”) as to which no representation is made) did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (r) If between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Bonds, an event occurs which might or would cause the information contained in the Official Statement, as then supplemented or amended, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the City will notify the Underwriter, and, if in the opinion of the City, the Underwriter or their respective counsel, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the City will forthwith prepare and furnish to the Underwriter (at the expense of the City) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to the Underwriter) which will amend or supplement the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to prospective purchasers, not misleading. For the purposes of this paragraph (r), between the date hereof and the date which is 25 days after the End of the Underwriting Period for the Bonds, the City will furnish such information with respect to itself as the Underwriter may from time to time reasonably request.
(s) If the information contained in the Official Statement is amended or supplemented pursuant to paragraph (r) of this Section 4, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to such paragraph) at all times subsequent thereto up to and including the date which is 25 days after the End of the Underwriting Period for the Bonds, the Official Statement (other than the Excluded Information as to which no representation is being made) so supplemented or amended ( including any financial and statistical data contained therein) will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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(t) As used herein and for the purposes of the foregoing, the term “End of the Underwriting Period” for the Bonds shall mean the earlier of (i) the Closing Date unless the City shall have been notified in writing to the contrary by the Underwriter on or prior to the Closing Date, or (ii) the date on which the End of the Underwriting Period for the Bonds has occurred under Rule 15c2-12; provided, however, that the City may treat as the End of the Underwriting Period for the Bonds the date specified as such in a notice from the Underwriter stating the date which is the End of the Underwriting Period.
(u) The financial statement s included in the appendices to the Preliminary Official Statement and the Official Statement present fairly the financial position of the Electric System as of June 30, 2022 and the results of operations for the fiscal years then ended, in conformity with generally accepted accounting principles applied on a basis consistent with the preceding periods . As of the Closing Date, there will not be any material adverse change in the financial position, results of operations or condition, financial or otherwise, of the Electric System from that described in the Preliminary Official Statement and the Official Statement. (v) Except as disclosed in the Preliminary Official Statement and the Official Statement, the City has not failed to comply in all material respects with the terms of any continuing disclosure obligation under Rule 15c2-12 within the past five years.
5. Condi
tions to the Obligations of the Underwriter. The Underwriter has entered into this Purchase Agreement in reliance upon the City’s representations and warranties herein and the representations and warranties of the City to be contained in the documents and instruments to be delivered on or prior to the Closing Date and upon the performance by the City of its obligations both on and as of the date hereof and as of the Closing Date . Accordingly, the Underwriter’s obligations under this Purchase Agreement are and will be subject to the following additional conditions:
(a) Th
e Underwriter shall receive, within seven (7) business days of the date hereof and at least in sufficient time to accompany any orders or confirmations that request payment from any customer, copies of the Official Statement (including all information previously permitted to have been omitted by Rule 15c2-12 and any amendments or supplements as have been approved by the Underwriter), in such quantity as the Underwriter shall have requested pursuant to Section 3 hereof;
(b) The representations and warranties of the City contained herein are true and correct in all material respects at the date hereof and will be true and correct on the Closing Date, and the statements of the officers and other officials of the City made in any certificate or other document furnished pursuant to the provisions hereof are accurate at the date hereof and will be true and correct on the Closing Date.
(c) At the Closing Date, the Bond Resolution will have been duly adopted and the Official Statement will have been duly authorized, executed and delivered by the City; the Indenture, the Continuing Disclosure Agreement and this Purchase Agreement will be in full force and effect as valid and binding agreements between the various parties thereto; the Bond Resolution, the Indenture, the Continuing Disclosure Agreement and the Official Statement shall not have been amended, modified or supplemented (except as may be agreed to in writing by the Underwriter); the ratings for the Bonds included in the Official Statement will be in effect; and the City will have performed its obligations required under or specified in this Purchase Agreement, the Official Statement and the Indenture to be performed at or prior to the Closing.
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(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) the approving opinion of Norton Rose Fulbright US LLP, Bond Counsel to the City, dated the Closing Date, substantially in the form attached to the Official Statement as Appendix D;
(2) a certificate, dated the Closing Date, of the City executed by its City Manager or other appropriate official acceptable to the Underwriter, to the effect that (A) (i) on the date of the Preliminary Official Statement and as of the date of this Purchase Agreement , the Preliminary Official Statement (except as to any information permitted to be omitted therefrom by Rule 15c2-12), did not and does not contain any untrue statement of material fact or omit any statement or information which is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation need be made as to The Depositary Trust Company (“DTC”) or DTC’s book- entry only system; and (ii) on the date of the Official Statement and on the Closing Date, the Official Statement did not and does not contain any untrue statement of material fact or omit any statement or information which is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation need be made as to The Depositary Trust Company (“DTC”) or DTC’s book -entry only system; (B) the representations and warranties of the City in this Purchase Agreement are true and correct on and as of the Closing Date as if made on and as of the Closing Date, and the City has complied in all material respects with and performed all of its covenants and agreements in this Purchase Agreement to be complied with and performed at or prior to the Closing; (C) the City has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date pursuant to this Purchase Agreement with respect to the execution and delivery of the Bonds; and (D) between the date of this Purchase Agreement and the Closing Date, the City has not offered or issued any bonds, notes or other obligations for borrowed money payable from Electric Net Revenues, or incurred any material liabilities with respect to Burbank Water and Power, direct or contingent, other than with the written consent of the Underwriter, nor has there been any adverse change of a material nature in the financial position, results of operations or condition, financial or otherwise, of Burbank Water and Power or the Electric System; (3) a certificate, dated the Closing Date, by the City Manager or other appropriate official of the City acceptable to the Underwriter, and by the City Attorney, to the effect that other than as described in the Preliminary Official Statement and the Official Statement, to the best of their knowledge, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body is pending or, to their knowledge after reasonable investigation, threatened (i) in any way questioning the corporate existence of the City or the titles of the officers of the City to their respective offices; (ii) seeking to restrain or enjoin the issuance, sale or delivery of any of the Bonds, or the collection of Electric Net Revenues pledged or to be pledged to pay any of the Bonds; (iii) in any way contesting or affecting the validity of the Indenture, the Continuing Disclosure Agreement, the Bonds or their tax- exempt status, this Purchase Agreement or the collection of said revenues or the pledge thereof, or contesting the powers of the City or any official of the City in connection with the adoption of the Bond Resolution, the issuance, sale or the delivery of the Bonds or the execution and delivery of the Indenture, the Continuing Disclosure Agreement or this Purchase Agreement and the performance of its obligati ons contained therein or herein; (iv) which reasonably may be expected to result in any material adverse change in the business, properties, assets or the financial condition of Burbank Water and Power or the Electric ATTACHMENT 5
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System or which reasonably may be expected to have a material adverse effect on the ability of the City to meet its obligations under the Indenture, the Continuing Disclosure Agreement, the Bonds or this Purchase Agreement; or (v) asserting that the Preliminary Official Statement or the Offici al Statement contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, which certificate shall be in form and substance acceptable to the Underwriter (but in lieu of such certificate, the Underwriter may, in its sole discretion, accept an opinion of Bond Counsel or counsel to the City, acceptable to the Underwriter in form and substance, that in their opinion the issues raised in any such pending or threatened litigation are without substance or that the contentions of any plaintiffs therein are without merit); (4) executed or certified, as appropriate, copies of the documents referred to in Section 5(c ), with related certificates and opinions satisfactory to Bond Counsel, the City Attorney and Counsel to the Underwriter;
(5) a supplemental opinion of Norton Rose Fulbright US LLP, Bond Counsel to the City, dated the Closing Date and addressed to the Underwriter, in substant ially the form attached hereto as Exhibit A;
(6) an opinion of Jones Hall, A Professional Law Corporation, as Disclosure Counsel to the City, dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit B.
(7) an opinion of the City Attorney, dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit C; (8) The opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation (“Underwriter’s Counsel”), dated the Closing Date and addressed to the Underwriter, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended, (ii) assuming the due authorization, execution and delivery of the Continuing Disclosure Agreement by the parties thereto and the enforceability thereof, the Continuing Disclosure Agreement satisfies (b)(5)(i) of Rule 15c2- 12 of the Securities Exchange Act ; and (iii) without passing upon and without assuming any responsibility for the accuracy, completeness or fairness of any of the statements contained in the Preliminary Official Statement and the Official Statement and making no representation that they have independently verified the accuracy, completeness or fairness of any such statements; in their capacity as counsel to the Underwriter during the course of the preparation of the Preliminary Official Statement and the Official Statement, they participated in conferences with representatives of the City, the City Attorney, Norton Rose Fulbright US LLP as Bond Counsel, Jones Hall, A Professional Law Corporation, as Disclosure C ounsel, PFM Financial Advisors LLC as municipal advisor, and t he Underwriter, during which the contents of the Preliminary Official Statement and the Official Statement and related matters were discussed and based on their participation in such conferences, and in reliance thereon and on the certificates, opinions and other documents they have reviewed, no information has come to the attention of the lawyers of such firm rendering professional legal services in connection with such representation that has caused them to believe that the Preliminary Official Statement, as of its date and as of the date of the Purchase Agreement, and the Official Statement as of its date and as of the Closing Date (excluding therefrom any financial statements or other financial, accounting, statistical, economic, engineering or demographic data; any charts, tables, graphs, forecasts, estimates, projections, ATTACHMENT 5
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assumptions or expressions of opinion; the information set forth in the Appendices to the Preliminary Official Statement and the Official Statement; any CUSIP numbers or information relating thereto; or any information about tax -exemption, DTC and its book-entry system, ratings or rating agencies, as to all of which they express no view) contained or contains any untrue statement of a material fact or omits to state any material fact ne cessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (9) A Tax Certificate executed by the City relating to the Bonds in form and substance acceptable to Bond Counsel;
(10) evidence from S&P Global Ratings and Moody’s Investors Service, Inc. of the “ ___” and “___” ratings, respectively, assigned to the Bonds by such rating service s and that, as of the Closing Date, such ratings have not been withdrawn or downgraded; (11) a certificate of the Trustee, dated the Closing Date, to the effect that:
(i) the Trustee is a national banking association duly organized and existing under the laws of the United States of America; (ii) the Trustee has full corporate trust powers and authority to serve as Trustee under the Indenture; and
(iii) the Trustee acknowledges and accepts its obligations under the Indenture and that such acceptance is in full compliance with, and does not conflict with, any applicable law or governmental regulation currently in effect, and does not conflict with or violate any contract to which the Trustee is a party or any administrative or judicial decision by which the Trustee is bound;
(12) an opinion of counsel to the Trustee, dated the date of Closing and addressed to the City and the Underwriter, to the effect that, the Trustee’s obligations under the Indenture constitute legal, valid and binding obligations of the Trustee, enforceable in accordance with their respective terms under California law except that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws in effect from time to time affecting the rights of creditors generally and except to the extent that the enforceability thereof may be limited by the application of general principles of equity; (13) A copy of any Blue Sky Memorandum with respect to the Bonds, if any, prepared by Underwriter’s Counsel;
(14) Evidence that a federal tax information form 8038-G has been prepared for filing with respect to the Bonds;
(15) A copy of the Notice of Final Sale required to be delivered to the California Debt and Investment Advisory Commission pursuant to Section 8855 of the California Government Code;
(16) Confirmation from the City in a form satisfactory to the Underwriter that consent of CliftonLarsonAllen, LLP, independent accountants, is not required for the inclusion of the audited financial statements of Burbank Water and Power, for the fiscal year ended June 30, 2022 included in Appendix B to the Preliminary Official Statement and the Official Statement; and ATTACHMENT 5
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(17) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter may reasonably request necessary to evidence the truth and accuracy, as of the Closing Date of the representations of the Ci ty contained in this Purchase Agreement and the due performance or satisfaction by the City at or prior to the Closing Date of all agreements then to be performed and all conditions then to be satisfied by the City pursuant to this Purchase Agreement.
6. T ermination. The Underwriter may terminate this Purchase Agreement by notification to the City, if between the date hereof and the Closing Date, in the reasonable judgment of the Underwriter, any of the following events or circumstances shall have occurred:
(a) a n amendment to the Constitution of the United States or the State of California shall have been passed or legislation shall have been introduced in or enacted by the Congress of the United States or the legislature of any state having jurisdiction of the subject matter or legislation pending in the Congress of the United States shall have been amended or legislation shall have been recommended to the Congress of the United States or to any state having jurisdiction of the subject matter or otherwise endorsed for passage (by press release, other form of notice or otherwise) by the President of the Uni ted States, the Treasury Department of the United States, the Internal Revenue Service or the Chairman or ranking minority member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or legislation shall have been proposed for consideration by either such Committee by any member thereof or presented as an option for consideration by either such Committee by the staff of such Committee or by the staff of the Joint Committee on Taxation of the Congress of the United States, or legislation shall have been favorably reported for passage to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or a decision shall have been rendered by a court of the United States or of the State of California or the Tax Court of the United States, or a ruling shall have been made or a regulation or temporary regulation shall have been proposed or made or any ot her release or announcement shall have been made by the Treasury Department of the United States, the Internal Revenue Service or other federal or State of California authority, with respect to federal or State of California taxation upon revenues or other income of the general character to be derived by the City or upon interest received on obligations of the general character of the Bonds which may have the purpose or effect, directly or indirectly, of affecting the tax status of the City, its property or income, its securities (including the Bonds) or the interest thereon, or any tax exemption granted or authorized by State of California legislation or materially and adversely affecting the market price or marketability of the Bonds or the market price generally of obligations of the general character of the Bonds or the ability of the Underwriter to enforce contracts for the sale, at the contemplated offering prices (or yields), of the Bonds;
(b) legislation enacted, introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter shall have been made or issued to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended; ATTACHMENT 5
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(c) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange, or a major financial crisis or a material disruption in commercial banking or securities settlement or clearances services;
(d) the minimum or maximum prices for securities similar to the Bonds shall have been fixed and be in force, or maximum ranges for prices for securities, similar to the Bonds, shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the U.S.
Securities and Exchange Commission or any other governmental authority having jurisdiction; (e) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; (f) an order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, including any or all underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws or the Trust Indenture Act of 1939, as amended and then in effect;
(g) the withdrawal or downgrading of any rating of the Bonds or any other outstanding debt of the City’s Electric System or the rating on the Bonds shall have been placed on “negative outlook,” “credit watch” or similar categorization; (h) an event or circumstance shall occur or be discovered which makes untrue or incorrect in any material respect any statement or information contained in the Official Statement or which is not reflected in the Official Statement but should be reflected therein in order to make the statements contained therein not misleading in any material respect and requires an amendment of or supplement to the Official Statement and, in either such event, (a) the City refuses to permit the Official Statement to be supplemented to supply such statement or information or (b) the effect of the Official Statement as so supplemented is, in the reasonable judgment of the Underwriter, to materially adversely affect the marketability or the market price of the Bonds or the ability of the Underwriter to enforce contracts for the sale, at the contemplated offering prices (or yields), of the Bonds; or
(i) an outbreak or escalation in military hostilities or an act of terrorism involving the United States or the declaration by the United States of war or any outbreak or escalation of a national or international emergency or calamity, or any other calamity or crisis in the financial markets of the United States or elsewhere, which, in the judgment of the Underwriter, materially adversely affects the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale, at the contemplated offering prices (or yields), of the Bonds; or
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(j) at the time of the Closing, any material adverse change or development involving a prospective change, in the condition, financial or otherwise, or in the earnings or operations of the Electric System (including the financial projections , if any), from that set forth in the Official Statement which, in the judgment of the Underwriter, materially adversely affects the marketability or the market price of the Bonds or the ability of the Underwriter to enforce contracts for the sale, at the contemplated offering prices (or yields), of the Bonds.
7. E xpenses.
(a) The Underwriter shall be under no obligation to pay, and the City shall pay, any expenses incident to the performance of the City’s obligations hereunder including, but not limited to: (i) the cost of preparation, printing and distribution of the Indenture, the Continuing Disclosure Agreement , the Preliminary Official Statement, the Official Statement and any supplements or amendments thereto, including a reasonable number of certified or conformed copies thereof; (ii) the cost of preparation and printing of the Bonds; (iii) the fees and disbursements of Bond Counsel and Disclosure Counsel; (iv) the fees and disbursements of any engineers, accountants and other experts, consultants or advisors retained by the City; (v) fees for bond ratings (which include fees of rating agencies and travel expenses of the City); (vi) the fees of Digital Assurance Certification, L.L.C, for a continuing disclosure undertaking compliance review ; and (vi i) the Underwriter’s out-of-pocket expenses incurred with respect to the financing, including (a) air travel and hotel costs in connection with the pricing of the Bonds, any investor meetings, any rating agency trips and the Closing, (b) meals and transportation for the City, the Underwriter and other working group personnel during such trips, (c) expenses related to attending working group meetings, such as parking, meals and transportation, and (d) any other miscellaneous costs related to the Closing. The City acknowledges that it has had an opportunity, in consultation with such advisors as it may deem appropriate, if any, to evaluate and consider the fees and expenses being incurred as part of the issuance of the Bonds.
(b) The Underwriter shall pay: (i) the cost of preparation and printing of this Purchase Agreement and the Preliminary Blue Sky Memorandum; (ii) all advertising expenses and Blue Sky filing fees in connection with the public offering of the Bonds; (iii) fees, if any, payable to the California Debt and Investment Advisory Commission, the Municipal Securities Rulemaking Board and the fees associated with obtain ing CUSIP numbers for the Bonds ; and (iv) all other expenses incurred by them in connection with the public offering of the Bonds not outlined in (a) above, including the fees and disbursements of Underwriter’s Counsel and any fees and expenses for a continuing disclosure undertaking compliance review . Such expenses of the Underwriter will be paid or reimbursed through the expense component of the Underwriter’s discount. The City acknowledges that fees payable to the California Debt and Investment Advisory Commission are the legal ob ligation of the Underwriter and not the City and the City consents to reimburse the Underwriter for such fees.
8. N
otices . Any notice or other communication to be given (i) t o the City under this Purchase Agreement may be given by delivering the same in writing to the City: City of Burbank, 301 East Olive Avenue, Burbank, California 91502, Attention: Financial Services Director, with a copy of same to Burbank Water and Power’s Chief Financial Officer, 164 West Magnolia Boulevard, P.O. Box 631, Burbank, California 91503-0631; and (ii) to the Underwriter under this Purchase Agreement may be given by delivering the same in writing to the Underwriter: RBC Capital Markets, LLC, 777 South Figueroa Street, Suite 850, Los Angeles, California 90017, Attention: Greg Dawley, Managing Director.
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9. S urvival of Representations and Warranties . The City’s representations, warranties and agreements contained in this Purchase Agreement or made in any certificate delivered hereunder shall remain operative and in full force and effect, regardless of: (i) any investigations or statements made by or on behalf of the Underwriter; and (ii) delivery of and payment for the Bonds pursuant to this Purchase Agreement.
10. Parties in Interest. T his Purchase Agreement is made solely for the benefit of the City and the Underwriter (including the successors or assigns of the Underwriter ) and no other person shall acquire or have any right hereunder or by virtue hereof.
11. No Fiduciary. T he City acknowledges and agrees that (i) the purchase and sale of the Bonds pursuant to this Purchase Agreement is an arm’s -length commercial transaction between the City and the Underwriter, and that the Underwriter ha s financial and other interests that differ from those of the City, (ii) in connection therewith and with the discussions, undertakings and procedures leading up to the consummation of such transaction, the Underwriter is and has been acting solely as a principal and is not acting as the agent or fiduciary of the City, (iii) the Underwriter has not assumed an advisory or fiduciary responsibility in favor of the City with respect to the offering contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether the Underwriter has provided other services or is currently providing other services to the City on other matters) and the Underwriter has no obligation to the City with respect to the offering contemplated hereby except the obligations expressly set forth in this Purchase Agreement and (iv) the City ha s consulted their own legal, financial and other advisors to the extent they have deemed appropriate.
12. Headings. T
he headings of the sections of this Purchase Agreement are inserted for convenience only and shall not be deemed to be a part hereof.
13. Effectiveness and Counterpart Signatures. This Purchase Agreement shall become effective and binding upon the respective parties hereto upon the execution of the acceptance hereof by duly authorized officers of the City and shall be valid and enforceable as of the time of such acceptance. This Purchase Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
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14. G overning Law . This Purchase Agreement shall be construed in accordance with the laws of the State of California.
Ve ry truly yours,
RBC CAPITAL MARKETS, LLC
By:
Managing Director
Accepted at ________ a.m./p.m. (pacific time)
this __ day of _________, 2023:
CITY OF BURBANK, CALIFORNIA
By:
[Acting] Chief Financial Officer
Burbank Water and Power
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SCHEDULE I
MATURITY SCHEDULE AND REDEMPTION PROVISIONS
MATURITY SCHEDULE
$[PAR AMOUNT]
CITY OF BURBANK, CALIFORNIA
Burbank Water and Power
Electric Revenue Bonds, Series of 2023
Maturity
Date
(June 1)
Principal
Amount
Interest
Rate Yield Price
General Rule
(10% Test)
Used(1)
Hold-the-
Offering
Price Rule
Used
C Priced to par call on June 1, 20__.
(1) [All of the maturities are General Rule (10% Test) Maturities.] ATTACHMENT 5
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REDEMPTION PROVISIONS
Optional Redemption of Bonds. The Bonds maturing on or before June 1, 20__ are not subject to redemption prior to maturity. The Bonds maturing on and after June 1, 20__ are subject to redemption by the City prior to their respective stated maturity dates, at the option of the City, from any source of available funds, as a whole or in part in authorized denominations on any date (by such maturities as may be specified by the City and by lot within a maturity), on or after June 1, 20__, at a redemption price equal to 100% of the principal amount of the Bonds called for redemption, plus accrued interest to the dated fixed for redemption date, without premium.
Mandatory Sinking Fund Redemption . The Bonds maturing on June 1, 20__ shall also be subject to redemption prior to their stated maturity, in part, from mandatory sinking fund payments as specified below, commencing on June 1, 20__ , at a redemption p rice eq ual to the principal amount thereof plus accrued interest thereon to the date fixed for redemption without premium.
Term Bonds Due June 1, 20__
Mandatory Sinking Fund
Payment Dates
(June 1)
Mandatory
Sinking Fund Payments
__________________
† Final Maturity.
The Bonds maturing on June 1, 20__ shall also be subject to redemption prior to their stated maturity, in part, from mandatory sinking fund payments as specified below, commencing on June 1, 20__, at a redemption price equal to the principal amount thereof plus accrued interest thereon to the date fixed for redemption without premium.
Term Bonds Due June 1, 20__
Mandatory Sinking Fund
Payment Dates
(June 1)
Mandatory
Sinking Fund Payments
__________________
† Final Maturity.
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EXHIBIT A
FORM OF SUPPLEMENTAL OPINION OF
BOND COUNSEL
[Closing Date]
RBC Capital Markets, LLC
Los Angeles, California
Re: $[PAR AMOUNT] City of Burbank, California Burbank Water and Power Electric Revenue Bonds, Series of 2023
Ladies and Gentlemen:
We have acted as bond counsel to the City of Burbank, California (the “City”) in connection with the issuance by the City of its Burbank Water and Power Electric Revenue Bonds, Series of 2023 in the aggregate principal amount of $[PAR AMOUNT] (the “Bonds”). The Bonds are being issued pursuant to Article 12 of Chapter 4 of Title 2 (formerly Article 12 of Chapter 14) of the Burbank Municipal Code, as amended (the “Bond Law”). The Bonds are also being issued pursuant to a Burbank Water and Power Electric Revenue Bond Indenture, dated as of October 1, 1998 (the “Master Indenture”), by and between the City and U.S. Bank Trust Company, National Association, as successor trustee (the “Trustee”), as amended and supplemented, including by the Seventh Supplemental Burbank Water and Power Electric Revenue Bond Indenture, dated as of February 1, 2023 (the “ Seventh Supplemental Indenture” and collectively with the Master Indenture as previously amended and supplemented, the “Indenture”), by and between the City and the Trustee.
The Bonds are being sold on the date hereof by the City to RBC Capital Markets , LLC pursuant to a Bond Purchase Agreement, dated [BPA DATE] , 2023 (the “Bond Purchase Agreement”). All capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the Bond Purchase Agreement.
In addition to the opinions set forth in our final legal opinion (the “Bond Opinion”) concerning the validity of the Bonds and certain other matters, dated the date hereof and addressed to the City (but which may be relied upon by you to the same extent as if such opinion were addressed to you), and based on and subject to the matters referred to in such Bond Opinion (which are hereby incorporated herein by reference), and in reliance thereon, as of the date hereof, we are of the following opinions or conclusions:
1. The statements contained in the Official Statement under the captions “THE 2023 BONDS,” “SECURITY AND SOURCES OF PAYMENT FOR THE 2023 BONDS,” “ THE FINANCING PLAN,” “TAX MATTERS,” “APPENDIX C - SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE,” “APPENDIX D - FORM OF OPINION OF BOND COUNSEL” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture and the Bond Opinion concerning certain tax matters relating to the Bonds, are accurate in all material respects and present a fair and accurate summary of such provisions for the purpose of use in the Official Statement.
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2. The Official Statement and the execution and delivery thereof have been duly approved by the City and the Bond Purchase Agreement and the Continuing Disclosure Agreement have been duly authorized, executed and delivered by the City and (assuming due authorization, execution and delivery by and validity against the other parties thereto) are valid and binding agreements of the City enforceable in accordance with their respective terms. We call attention to the fact that the rights and obligations under the Bond Purchase Agreement and the Continuing Disclosure Agreement and the enforceability thereof are subject to and may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium and other similar laws affecting creditors’ rights, to the application of equitable principles, to the possible unavailability of s pecific performance or injunctive relief, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public agencies in the State of California. We express no opinion with respect to any indemnification, c ontribution, penalty, choice of law, choice of forum or waiver (including, without limitation, waiver of jury trial or consent to nonjury trial) provisions contained in the foregoing documents.
3. The Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended.
This letter is furnished by us as bond counsel to the City. No attorney-client relationship has existed or exists between our firm and you in connection with the Bonds or by virtue of this letter. We disclaim any obligation to update this letter. This letter is delivered to you as Underwriter of the Bonds, is solely for your benefit as such Underwriter in connection with the original issuance of the Bonds on the date hereof, and is not to be used, circulated, quoted or otherwise referred to or relied upon for any other purpose or by any other person. This letter is not intended to, and may not, be relied upon by owners of Bonds or by any other party to whom it is not specifically addressed.
Respectfully submitted,
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EXHIBIT B
FORM OF OPINION OF JONES HALL,
A PROFESSIONAL LAW CORPORATION
AS DISCLOSURE COUNSEL
[Closing Date]
City of Burbank
Burbank, California
RBC Capital Markets, LLC
Los Angeles, California
Re: $[PAR AMOUNT] City of Burbank, California Burbank Water and Power Electric Revenue Bonds, Series of 2023
Ladies and Gentlemen:
We have acted as Disclosure Counsel to the City of Burbank (the “City”) in connection with the issuance of the above -referenced bonds (the “Bonds”). This letter is being delivered in our capacity as Disclosure Counsel to the City and not as counsel to the underwriter addressee.
We are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of any of the statements contained in the Preliminary Official Statement dated [POS DATE], 2023 with respect to the Bonds (together with all appendices thereto, the “Preliminary Official Statement”) and the final Official Statement dated [OS DATE] , 2023 with respect to the Bonds (together with all appendices thereto, the “Final Official Statement”), and make no representation that we have independently verified the accuracy, completeness or fairness o f any such statements. However, in connection with our participation in the preparation the Preliminary Official Statement and the Final Official Statement, we have reviewed certain documents and have been in contact with representatives of the City, repre sentatives of PFM Financial Advisors LLC, municipal advisor to the City, representatives of RBC Capital Markets , LLC, as u nderwriter of the Bonds, and others, concerning the contents of the Preliminary Official Statement and the Final Official Statement and related matters. During the course of our work on this matter, no information has come to our attention which would cause us to believe that the Preliminary Official Statement as of its date and as of the date of the Purchase Agreement , and the Final Official Statement as of its date and as of the date hereof (except for any financial and statistical data and forecasts, numbers, estimates, assumptions and expressions of opinion, and information concerning The Depository Trust Company and the book-entry system for the Bonds, contained or incorporated by reference in the Preliminary Official Statement and the Final Official Statement, which we expressly exclude from the scope of this sentence) contains any untrue statement of a material fact or omit s to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made, not misleading.
The preceding paragraph is not an opinion but in the nature of negative observations based on certain limited activities performed by specific lawyers in our firm in our role as Disclosure Counsel to the City. The scope of those activities performed by us for purposes of delivering this letter were inherently limited and do not purport to encompass all activities necessary for compliance by the City ATTACHMENT 5
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with applicable securities laws. In addition, those activities performed by us relied on third party representations, warranties, certifications and opinions, including primarily, representations, warranties and certifications made by the City, and are otherwise subject to the conditions set forth herein.
This letter is furnished by us solely for your benefit and may not be relied upon by any other person or entity. W e disclaim any obligation to supplement this letter to reflect any facts or circumstances that may her eafter come to our attention or any changes in the l aw that may hereafter occur, and our engagement with respect to this matter has terminated as of the date hereof.
Respectfully submitted,
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EXHIBIT C
FORM OF OPINION OF CITY ATTORNEY
RBC Capital Markets, LLC
Los Angeles, California
$[PAR AMOUNT]
City of Burbank, California
Burbank Water and Power
Electric Revenue Bonds, Series of 2023
Ladies and Gentlemen:
As City Attorney for the City of Burbank, California (the “City”) in connection with the issuance, delivery and sale of $[PAR AMOUNT] aggregate principal amount of City of Burbank, California Burbank Water and Power Electric Revenue Bonds, Series of 2023 (the “Series 2023 Bonds”), I have examined: (i) the Burbank City Charter, including Article 12 of Chapter 4 of Title 2 (formerly Article 12 of Chapter 14) of the Burbank Municipal Code, as amended, R esolution No. ________ adopted by the City Council of the City on [RESO DATE], 2023 (the “Bond Resolution”); (ii) the Burbank Water and Power Electric Revenue Bond Indenture, dated as of Octo ber 1, 1998, by and between the City and U.S. Bank Trust Company, National Association, as successor trustee (the “Trustee”), as supplemented and amended, including as supplemented and amended by a Seventh Supplemental Burbank Water and Power Electric Revenue Bond Indenture, dated as of February 1, 2023 (the “ Seventh Supplemental Indenture”), relating to the Series 2023 Bonds (collectively, the “Indenture”); (iii) the Bond Purchase Agreement, dated [BPA DATE] , 2023, between RBC Capital Markets, LLC and the City (the “Bond Purchase Agreement”); ( iv) the Continuing Disclosure Agreement, dated [CLOSING DATE], 2023 (the “Continuing Disclosure Agreement”), executed and delivered by the City and the Trustee; and (v) the Preliminary Official Statement, dated [P OS DATE], 2023, and the Official Statement, dated [OS DATE] , 2023 (the “Official Statement”), relating to the Series 2023 Bonds, and I have made such other investigations of law and facts as I have deemed necessary to render this opinion. Except as otherwise indicated, capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Bond Purchase Agreement.
On the basis of the foregoing examination and my consideration of such questions of law as I have deemed relevant in the circumstances, I am of the opinion that:
1. The City is a charter city duly organized and existing under the Constitution and laws of the State of California and the Charter.
2. The Bond Resolution has been duly adopted at a meeting of the City Council of the City which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout.
3. The Series 2023 Bonds, the Indenture, the Continuing Disclosure Agreement and the Bond Purchase Agreement have each been duly authorized, executed and delivered by the City and assuming due authorization, execution and delivery by the other parties thereto where applicable, are valid and binding obligations of the City, enforceable in accordance with their respective terms, ATTACHMENT 5
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subject to laws relating to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights, to the application of equitable principles if equitable remedies are sought, and to limitations on legal remedies against municipal corporations in the State of California.
4. The adoption of the Bond Resolution and the execution and delivery of the Series 2023 Bonds, the Indenture, the Continuing Disclosure Agreement and the Bond Purchase Agre ement and the other instruments contemplated by any of such documents to which the City is a party, and compliance with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State of California, the United States, or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the City or under the terms of any such constitutional provision, law, rule, decree, order, regulation or instrument, except as expressly provided in the Indenture.
5. Except as described in the Preliminary Official Statement and the Official Statement, there is no action, suit, proceeding or investigation at law or in equity before or by any court, government agency, public board or body pending or, to my current knowledge, threatened against or affecting the City to restrain or enjoin the issuance or delivery of any of the Series 2023 Bonds, the collection of Electric Net Revenues pledged under the Indenture, in any way c ontesting or affecting any of the Series 2023 Bonds, the Indenture, the Continuing Disclosure Agreement or the Bond Purchase Agreement or the completeness or accuracy of the Preliminary Official Statement or the Official Statement or in any way contesting the existence or powers of the City with respect to the issuance of the Series 2023 Bonds or the security therefor wherein an unfavorable decision, ruling or finding would adversely affect any of the transactions contemplated by the Official Statement, the Indenture, the Continuing Disclosure Agreement or the Bond Purchase Agreement or the validity or enforceability of the Series 2023 Bonds.
6. No approval, consent or order of any governmental authority, legislative body, board, agency or City within the State of California having jurisdiction over the City or Burbank Water and Power or of any such entity having federal jurisdiction over the City or Burbank Water and Power which has not been obtained is required for the valid authorization, execution, delive ry or performance by the City of its obligations under the Indenture, the Continuing Disclosure Agreement, the Series 2023 Bonds or the Bond Purchase Agreement, except that no opinion is expressed with respect to the qualification of the Series 2023 Bonds or any of the foregoing instruments under the Blue Sky or securities laws of any state.
7. The statements with respect to the City, Burbank Water and Power and the Electric System contained in the Preliminary Official Statement and in the Official Statemen t do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
8. Without having undertaken to determine independently or assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Official Statement or the Official Statement (except as set forth in paragraph 7 above), nothing has come to my attention tha t would lead me to believe that the Preliminary Official Statement, as of its date and as of [BPA DATE], 2023 (excluding therefrom the financial information ATTACHMENT 5
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and the statistical data and the information relating to DTC and the book -entry system included therein as to which no opinion is expressed and except as to the information permitted to be omitted by Rule 15c2-12) or in the Official Statement, as of its date and as of the date hereof (excluding therefrom the financial information and the statistical data and the information relating to DTC and the book-entry system included therein as to which no opinion is expressed) contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the stateme nts therein, in the light of the circumstances under which they were made, not misleading.
I express no opinion as to any matters other than as expressly set forth above. Without limiting the generality of the foregoing, except as expressly set forth above, I specifically express no opinion as to the status of the Series 2023 Bonds or the interest thereon under any federal securities laws or any state securities or Blue Sky law or any federal, state or local tax law. Further, I express no opinion on the laws of any jurisdictions other than the State of California and the United States of America.
This opinion is delivered to you as Underwriter and is solely for your benefit and is not to be used by any other person or for any other purpose.
Very truly yours,
City Attorney
ATTACHMENT 5
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EXHIBIT D
FORM OF ISSUE PRICE CERTIFICATE
$[PAR AMOUNT]
CITY OF BURBANK, CALIFORNIA
Burbank Water and Power
Electric Revenue Bonds, Series of 2023
The undersigned, on behalf of RBC Capital Markets , LLC (“RBC”) , certifies as set forth below with respect to the sale and issuance of the above-captioned bonds (the “Bonds”) of the City of Burbank, California (the “Issuer”).
1. Sale of the General Rule Maturities. As of the date of this certificate, for each Maturity of the General Rule Maturities, the first price at which at least 10% of such Maturity was sold to the Public is the respective price listed in Schedule I.
2. [Initial Offering Price of the Hold -the-Offering-Price Maturities. (a) RBC has offered the Hold-the-Offering-Price Maturities to the Public for purchase at the respective initial offering prices listed in Schedule I (each an “Initial Offering Price”) on or before the Sale Date. A copy of the pricing wire or equivalent communication for the Bonds is attached to this certificate as Schedule II.
(b) As set forth in the Bond Purchase Agreement dated [BPA DATE], 2023, between RBC and the Issuer, RBC agreed in writing on or prior to the Sale Date that, (i) for each Maturity of the Hold-the -Offering-Price Maturities, it would neither offer nor sell any of the Bonds of such Maturity to any person at a price that is higher than the Initial Offering Price for such Maturity during the Holding Period for such Maturity (the “hold-the -offering-price rule”), and (ii) any selling group agreement shall contain the agreement of each dealer who is a member of the selling group, and any retail or other third -party distribution agreement shall contain the agreement of each broker- dealer who is a party to the retail or other third-party distribution agreement, to comply with the hold-the-offering-price rule. Pursuant to such agreement, no Underwriter (as defined below in this certificate) has offered or sold any Maturity of the Hold-the-Offering-Price Maturities at a price that is higher than the respective Initial Offering Price for that Maturity of the Bonds during the Holding Period.]
[2.][3.] Defined Terms.
(a) General Rule Maturities means those Maturities of the Bonds listed in Schedule I hereto as the “General Rule Maturities.”
(b) [Hold -the-Offering-Price Maturities means those Maturities of the Bonds listed in Schedule I hereto as the “Hold-the-Offering-Price Maturities.” (c) Holding Period means, with respect to a Hold-the-Offering-Price Maturity, the period starting on the Sale Date and ending on the earlier of (i) the close of the fifth business day after the Sale Date, or (ii) the date on which the Underwriters sold at least 10% of such Hold-the -Offering- ATTACHMENT 5
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Price Maturity to the Public at prices that are no higher than the Initi al Offering Price for such Hold- the-Offering-Price Maturity.]
(d) Maturity means Bonds with the same credit and payment terms. Bonds with different maturity dates, or Bonds with the same maturity date but different stated interest rates, are treated as separate maturities.
(e) Public means any person (including an individual, trust, estate, partnership, association, company, or corporation) other than an Underwriter or a related party to an Underwriter.
The term “related party” for purposes of this certificate generally means any two or more persons who have greater than 50 percent common ownership, directly or indirectly. (f) Sale Date means the first day on which there is a binding contract in writing for the sale of a Maturity of the Bonds. The Sale Date of the Bonds is [BPA DATE], 2023. (g) Underwriter means (i) any person that agrees pursuant to a written contract with the Issuer (or with the lead underwriter to form an underwriting syndicate) to participate in the initial sale of the Bonds to the Public , and (ii) any person that agrees pursuant to a written contract directly or indirectly with a person described in clause (i) of this paragraph to participate in the initial sale of the Bonds to the Public (including a member of a selling group or a party to a retail or other third- party distribution agreement participating in the initial sale of the Bonds to the Public).
The representations set forth in this certificate are limited to factual matters only. Nothing in this certificate represents the undersigned’s interpretation of any laws, including specifically Sections 103 and 148 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder. The undersigned understands that the foregoing information will be relied upon by the Issuer with respect to certain of the representations set forth in the Tax Certificate with respect to the Bonds and with respect to compliance with the federal income tax rules affecting the Bonds, and by Norton Rose Fulbright US LLP in connection with rendering its opinion that the interest on the Bonds is excluded from gross income for federal income tax purposes, the preparation of the Internal Revenue Service Form 8038-G, and other federal income tax advice that it may give to the Issuer from time to time relating to the Bonds. The certifications contained herein are not necessarily based on personal knowledge, but may instead be based on either inquiry deemed adequate by the undersigned or institutional knowledge (or both) regarding the matters set forth herein. Although certain information furnished in this certificate has been derived from other purchasers and brokers and cannot be independently verified by RBC, RBC has no reason to believe it to be untrue in any material respect.
RBC Capital Markets, LLC
By:
Name:
Title:
Dated: [Closing Date], 2023
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SCHEDULE 1 TO EXHIBIT D
SALE PRICES OF THE GENERAL RULE MATURITIES AND
INITIAL OFFERING PRICES OF THE HOLD-THE-OFFERING-PRICE MATURITIES $[PAR AMOUNT]
CITY OF BURBANK, CALIFORNIA
Burbank Water and Power
Electric Revenue Bonds, Series of 2023
Maturity
Date
(June 1)
Principal
Amount
Interest
Rate Yield Price
General Rule
(10% Test)
Used(1)
Hold-the-
Offering
Price Rule
Used
C Priced to par call on June 1, 20__.
(1) [All of the maturities are General Rule (10% Test) Maturities.]
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