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D
raft of 4/11/2024
F
OURTH SUPPLEMENTAL BURBANK WATER AND POWER
WATER REVENUE BOND INDENTURE
by and between the
CITY OF BURBANK, CALIFORNIA
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Dated as of June 1, 2024
(Supplemental to the Burbank Water and Power Water Revenue Bond Indenture dated as of November 1, 2010)
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TABLE OF CONTENTS
Page
-i-
139410704.4
ARTICLE XV
THE SERIES 2024 BONDS
SECTION 15.01. Definitions.................................................................................................. 2 SECTION 15.02. Authorization; Terms of the Series 2024 Bonds. ....................................... 3 SECTION 15.03. Redemption of Series 2024 Bonds ............................................................. 4 SECTION 15.04. Selection of Series 2024 Bonds for Redemption ....................................... 5 SECTION 15.05. Notice of Redemption of Series 2024 Bonds ............................................. 5 SECTION 15.06. Partial Redemption of Series 2024 Bonds ................................................. 5 SECTION 15.07. Effect of Redemption of Series 2024 Bonds.............................................. 5 SECTION 15.08. Form of Series 2024 Bonds........................................................................ 6 SECTION 15.09. Issuance of Series 2024 Bonds .................................................................. 6 SECTION 15.10. Application of Proceeds of Series 2024 Bonds. ......................................... 6 SECTION 15.11. Establishment and Application of Series 2024 Costs of Issuance Fund ........................................................................................................... 6 SECTION 15.12. Designation of Series 2024 Bonds as Non-Participating Bonds; No Reserve Fund ............................................................................................. 7 SECTION 15.13. Tax Covenants ........................................................................................... 7 SECTION 15.14. Terms of Series 2024 Bonds Subject to the Master Water Revenue Bond Indenture......................................................................................... 11 SECTION 15.15. Effective Date of Fourth Supplement ...................................................... 11 SECTION 15.16. Execution in Counterparts........................................................................ 11
EXHIBIT A Form of Series 2024 Bond ......................................................... A-1 EXHIBIT B Form of Requisition ................................................................... B-1
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Fourth Supplemental Burbank Water and Power Water Revenue Bond Indenture (Supplemental to the Burbank Water and Power Water
Revenue Bond Indenture dated
as of November 1, 2010)
Authorizing the Issuance of
$[____] Aggregate Principal Amount of
City of Burbank, California
Burbank Water and Power Water Revenue Refunding Bonds,
Series of 2024
This FOURTH SUPPLEMENTAL BURBANK WATER AND POWER WATER
REVENUE BOND INDENTURE, dated as of June 1, 2024 (the “Fourth Supplement”), by and between the CITY OF BURBANK, CALIFORNIA (the “City”), a municipal corporation and chartered city duly organized and existing under the Constitution and laws of the State of California, and U.S. BANK TRUST COM PANY, NATIONAL ASSOCIATION, as successor trustee (the “Trustee”),
W I T N E S S E T H :
WHEREAS, this Fourth Supplement is supplemental to the Burbank Water and Power Water Revenue Bond Indenture, dated as of November 1, 2010 (the “Master Water Revenue Bond Indenture”), by and between the City and the Trustee, providing for the issuance of City of Burbank, California Burbank Water and Power Water Revenue Bonds (the “Bonds”); and WHEREAS, the Master Water Revenue Bond Indenture provides that the City may iss ue Bonds from time to time as authorized by a supplemental indenture thereto; and WHEREAS, the City has heretofore issued three Series of revenue bonds under the Master Water Revenue Bond Indenture, two of which Series are currently outstanding as described below; and
WHEREAS, the City has heretofore issued its City of Burbank, California Burbank Water and Power Water Revenue Bonds, Series of 2010B (Taxable Build America Bonds) (the “2010B Bonds”), which 2010B Bonds are currently outstanding in the principal amount of $27,095,000 (but will be redeemed upon the issuance of the Series 2024 Bonds), pursuant to the Master Water Revenue Bond Indenture, as supplemented and amended, including by a Second Supplemental Burbank Water and Power Water Revenue Bond Indenture, dated as of November 1, 2010; and WHEREAS, the City has heretofore issued on a parity with the 2010B Bonds, its City of Burbank, California Burbank Water and Power Revenue/Refunding Bonds, Series of 2021 (the “2021 Bonds”), which 2021 Bonds are currently outstanding in the principal amount of $23,410,000, pursuant to the Master Water Revenue Bond Indenture, as supplemented and ATTACHMENT 9
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amended, including by a Third Supplemental Burbank Water and Power Water Revenue Bond Indenture, dated as of November 1, 2021; and
WHEREAS, Article 12 of Chapter 4 of Title 2 of the Burbank Municipal Code authorizes the City to issue revenue bonds for the purpose of financing additions, betterments and extensions to and improvements of the water system of the City and related facilities and to refund obligations issued for such purpose; and
WHEREAS, the City Council has determined to issue a series of Bonds to be known as the City of Burbank, California Burbank Water and Power Water Revenue Refunding Bonds, Series of 2024 (the “Series 2024 Bonds”) to, together with other funds, (i) refund all of the outstanding 2010B Bonds and (ii) pay Costs of Issuance of the Series 2024 Bonds; and WHEREAS, the City Council has determined that it is necessary and required that the City enter into this Fourth Supplement to establish and declare, in conjunction with the Master Water Revenue Bond Indenture, the terms and conditions upon which the Series 2024 Bonds shall be issued and secured and to secure the payment of the principal thereof and premium (if any) and interest thereon; and
WHEREAS, the City Council has determined that 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 delivery of this Fourth Supplement 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 Fourth Supplement; NOW, THEREFORE, the parties hereto agree, as follows:
ARTICLE XV
THE SERIES 2024 BONDS
SECTION 15.01. D
efinitions. The terms defined in this Section shall, for all purposes of this Fourth Supplement and of any certificate, opinion or other document herein mentioned, have the meanings herein specified, to be equally applicable to both the singular and plural forms of any of the terms herein defined. Terms defined in the Master Water Revenue Bond Indenture not otherwise defined herein shall have the meanings specified therein. “Authorized Denomination” means, with respect to the Series 2024 Bonds, $5,000 or any in
tegral multiple thereof.
“Certificate,” “Statement,” “Request,” “Requisition” or “Order” of the City mean, respectively, a written certificate, statement, request, requisition or order signed in the name of the City by the City Manager, a Deputy City Manager, the City Treasurer, the Financial Services Director, the General Manager of Burbank Water and Power or the Chief Financial Officer of Burbank Water and Power, or any other person authorized by any of the foregoing to execute such instruments. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument. If and to the ATTACHMENT 9
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extent required by Section 1.03 of the Master Water Revenue Bond Indenture, certificates and opinions shall include the statements provided for in said Section 1.03. “Series 2024 Bonds” means the City of Burbank, California Burbank Water and Power Water Revenue Refunding Bonds, Series of 2024.
“Series 2024 Costs of Issuance Fund” means the Series 2024 Costs of Issuance Fund established in Section 15.11.
SECTION 15.02. A uthorization; Terms of the Series 2024 Bonds. (A) A fourth Series of Bonds to be issued under the Master Water Revenue Bond Indenture is hereby created. Such Series shall be known as the “City of Burbank, California Burbank Water and Power Water Revenue Refunding Bonds, Series of 2024” (herein referred to as the “Series 2024 Bonds”). The Series 2024 Bonds shall be issued in the aggregate initial principal amount of $[____] in accordance with the law and the Master Water Revenue Bond Indenture to, together with other funds, (i) refund all of the outstanding 2010B Bonds and (ii) pay Costs of Issuance of the Series 2024 Bonds.
(B) The Series 2024 Bonds shall be issued in fully registered form and shall be initially registered in the name of “Cede & Co.,” as nominee of The Depository Trust Company. The Series 2024 Bonds shall be evidenced by one Series 2024 Bond maturing on each of the maturity dates as set forth in subsection 15.02(C) in a denomination corresponding to the total principal amount of the Series 2024 Bonds of such maturity. Each Series 2024 Bond may be assigned by the Trustee a distinctive number or letter and number, and a record of the same shall be maintained by the Trustee. Registered ownership of the Series 2024 Bonds, or any portion thereof, may not thereafter be transferred except as set forth in Section 2.10 of the Master Water Revenue Bond Indenture. (C) The Series 2024 Bonds shall be dated the date of delivery thereof, shall be issued in Authorized Denominations, and shall bear interest from the date thereof at the following rates per annum and shall mature on June 1 in the following years in the following amounts:
Maturity Date
(June 1)
Principal
Amount
Interest
Rate
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Interest on the Series 2024 Bonds shall be payable semiannually on June 1 and December 1 of each year, commencing on December 1, 2024, in lawful money of the United States of America by check mailed by first -class mail on each interest payment date to the Owner thereof as of the close of business on the fifteenth (15th) day (whether or not a Business Day) of the calendar month immediately preceding such interest payment date (each a “Record Date”); provided, that upon the written request of an Owner of one million dollars ($1,000,000) or more in aggregate principal amount of Series 2024 Bonds received by the Trustee prior to the applicable Record Date (which such request shall remain in effect until rescinded in writing by such Owner), interest shall be paid by wire transfer in immediately available funds.
Interest with respect to any Series 2024 Bond shall be payable from the interest payment date next preceding the date of authentication thereof unless such date of authentication is on or before an interest payment date and after the close of business on the preceding Record Date, in which case interest with respect thereto shall bear interest from such interest payment date, or unless such date of authentication is on or before the first Record Date, in which case interest with respect thereto shall be payable from the date of delivery of such Series 2024 Bond, or unless any Series 2024 Bond is in default as of the date of authentication thereof, in which case interest with respect thereto shall be payable from the date to which interest has been paid in full, payable on each interest payment date.
Interest on the Series 2024 Bonds shall be computed on the basis of a 360- day year of twelve 30-day months. The principal of and premium, if any, on the Series 2024 Bonds are payable when due upon presentation thereof at the Corporate Trust Office of the Trustee, in lawful money of the United States of America.
So long as the Series 2024 Bonds are maintained in book- entry form, payments of principal, premium, if any, and interest shall be made by the Trustee to the Securities Depository by wire transfer.
The Trustee shall provide to Owners CUSIP number identification, with appropriate dollar amounts for each CUSIP number, on all redemption payments and interest payments, whether by check or by wire transfer.
SECTION 15.03. R
edemption of Series 2024 Bonds. [The Series 2024 Bonds maturing on or before June 1, [____] are not subject to optional redemption prior to maturity. The ATTACHMENT 9
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Series 2024 Bonds maturing on or after June 1, [____] are subject to redemption prior to their respective stated maturities, at the option of the City, from any source of available funds, as a whole or in part on any date (by such maturities as may be specified by the City and by lot within a maturity), on or after June 1, [____], at a Redemption Price equal to 100% of the principal amount of the Series 2024 Bonds to be redeemed, plus accrued interest to the date fixed for redemption, without premium.]
SECTION 15.04. S
election of Series 2024 Bonds for Redemption. If less t han all of the Series 2024 Bonds are to be redeemed, the maturities of the Series 2024 Bonds to be redeemed shall be selected by the City. Whenever provision is made in this Fourth Supplement for the redemption of less than all of the Series 2024 Bonds of any maturity, the Trustee shall select the Series 2024 Bonds to be redeemed, from all Series 2024 Bonds of the respective maturity not previously called for redemption, in Authorized Denominations, by lot in any manner which the Trustee in its sole discretion shall deem appropriate. The Trustee shall promptly notify the City in writing of the Series 2024 Bonds so selected for redemption.
SECTION 15.05. Not
ice of Redemption of Series 2024 Bonds. The City shall notify the Trustee at least forty-five (45) days prior to the redemption date for Series 2024 Bonds pursuant to Section 15.03 (or such shorter time as may be agreed to by the Trustee). Notice of redemption shall be mailed by the Trustee, not less than twenty (20) nor more than sixty (60) days prior to the redemption date, (i) to the respective Owners of any Series 2024 Bonds designated for redemption at their addresses appearing on the bond registration books of the Trustee by first-class mail, (ii) to the Securities Depository by facsimile or other electronic mean s of communications and by first- class mail, and (iii) to EMMA at www.emma.msrb.org, by electronic means of communication, or to such other securities depositories or information services as the City may designate in a Request of the City delivered to the Trustee. Notice of redemption shall be given in the form and otherwise in accordance with the terms of the Master Water Revenue Bond Indenture and this Fourth Supplement.
The City has the right to rescind any notice of the optional redemption of Series 2024 B
onds by Request to the Trustee on or prior to the dated fixed for such redemption. Any notice of optional redemption shall be cancelled and annulled if for any reason funds will not be or are not available on the date fixed for redemption for the payment in full of the Series 2024 Bonds then called for redemption, and such cancellation will not constitute an Event of Default. The City and the Trustee shall have no liability to the Owners or any other party related to or arising from such rescission of notice of redemption. The Trustee shall provide notice of rescission of redemption in the same manner as the original notice of redemption was provided.
SECTION 15.06. P
artial Redemption of Series 2024 Bonds. Upon surrender of any Series 2024 Bond redeemed in part only, the City shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the expense of the City, a new Series 2024 Bond of Authorized Denominations, and of the same maturity and interest rate, equal in aggregate principal amount to the unredeemed portion of the Series 2024 Bond surrendered.
SECTION 15.07. Ef
fect of Redemption of Series 2024 Bonds. Notice of redemption having been duly given as aforesaid, and moneys for payment of the Redemption Price of, together with interest accrued to the redem ption date on, the Series 2024 Bonds (or portions thereof) so ATTACHMENT 9
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called for redemption being held by the Trustee, on the redemption date designated in such notice, the Series 2024 Bonds (or portions thereof) so called for redemption shall become due and payable at the Redemption Price specified in such notice, together with interest accrued thereon to the date fixed for redemption, interest on the Series 2024 Bonds so called for redemption shall cease to accrue, said Series 2024 Bonds (or portions thereof) sh all cease to be entitled to any benefit or security under the Master Water Revenue Bond Indenture, and the Owners of such Series 2024 Bonds shall have no rights in respect thereof except to receive payment of such Redemption Price and accrued interest.
All Series 2024 Bonds redeemed pursuant to the provisions of this Article shall be cancelled upon surrender thereof and destroyed.
SECTION 15.08. F
orm of Series 2024 Bonds. The Series 2024 Bonds and the certificate of authentication and registration to be executed thereon shall be in substantially the form set forth as Exhibit A hereto. The Series 2024 Bond designation letters and numbers, maturity dates, principal amounts, and interest rates shall be inserted therein in conformity with Section 15.02.
SECTION 15.09. Is
suance of Series 2024 Bonds. At any time after the execution and delivery of this Fourth Supplement, the City may execute and the Trustee shall authenticate and deliver the Series 2024 Bonds in the aggregate principal amount of $[____] upon the Order of the City.
SECTION 15.10. Ap
plication of Proceeds of Series 2024 Bonds.
(A) The proceeds of the sale of the Series 2024 Bonds in the amount of $[____] (computed as $[____] aggregate principal amount of the Series 2024 Bonds, plus $[____] original issue premium, and less $[____] Underwriter’s discount), shall be received by the Trustee on behalf of the City and, together with certain other available amounts as described below, held in trust and set aside as follows:
(i) The Trustee shall deposit in the Debt Service Fund $[____] from the proceeds of the sale of the Series 2024 Bonds to be applied, together with $[____] already on deposit in the Debt Service Fund, or a total of $[____], towards the redemption of the 2010B Bonds to be refunded; and
(ii) The Trustee shall deposit in the Series 2024 Costs of Issuance Fund from proceeds of the Series 2024 Bonds the amount of $[____], to be applied in accordance with Section 15.11 hereof.
SECTION 15.11. E
stablishment and Application of Series 2024 Costs of Issuance Fund. The Trustee shall establish and maintain and hold in trust a special fund designated as the “Series 2024 Costs of Issuance Fund.” The moneys in the Series 2024 Costs of Issuance Fund shall be used and withdrawn by the Trustee to pay the Costs of Issuance of the Series 2024 Bonds in accordance with directions of the City expressed in one or more Requisitions of the City delivered to the Trustee, in the form set forth as Exhibit B. Moneys on deposit in the Series 2024 Costs of Issuance Fund may be invested by the Trustee in Investment Securities or the Local Agency Investment Fund (LAIF) pursuant to Requests of the City delivered to the Trustee. All ATTACHMENT 9
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interest, profit and other income received from the investment of moneys in the Series 2024 Costs of
Issuance Fund shall be credited to such Fund. If any sum shall remain unexpended in the Series 2024 Costs of Issuance Fund on [____] 1, 2024 it shall, at the direction of the City, be applied for any lawful purpose with respect to the Water System upon such terms and conditions as shall not, in the opinion of Bond Counsel, adversely affect the exclusion from gross income for federal income tax purposes of interest on the Series 2024 Bonds. Designation of Series 2024 Bonds as Non-Participating Bonds; No Reserve Fund. The Series 2024 Bonds shall not constitute Participating Bonds in accordance with the provisions of Section 3.02 of the Master Water Revenue Bond Indenture. The Reserve Fund Requirement for the Series 2024 Bonds shall be zero ($0).
SECTION 15.13. Ta
x Covenants. [To be updated] In furtherance of the covenants set forth in Sections 6.07 and 6.08 of the Indenture, in connection with the Series 2024 Bonds, the City hereby covenants as follows:
(A) S
pecial Definitions . When used in this Section, the following terms have the following meanings:
“Code” means the Internal Revenue Code of 1986.
“Computation Date” has the meaning set forth in section 1.148- 1(b) of the Treasury Regulations.
“Gross Proceeds,” with respect to an issue, means any proceeds of that issue as defined in section 1.148- 1(b) of the Treasury Regulations (referring to sales, investment and transferred proceeds), and any replacement proceeds of that issue as defined in section 1.148-1(c) of the Treasury Regulations.
“Investment” means (i) any security (within the meaning of section 165(g)(2)(A) or (B) of the Code), (ii) any obligation (notwithstanding that such obligation may be a tax-exempt bond), (iii) any annuity contract, (iv) when allocated to a bond other than a private activity bond, any residential rental property for family units that is not located within the jurisdiction of the issuer and that is not acquired to implement a court ordered or approved housing desegregation plan, or (v) any investment -type property (as defined in section 1.148- 1(e) of the Treasury Regulations).
“Nonpurpose Investment,” with respect to an issue, means any investment other than a tax-exempt bond that is not a specified private activity bond (within the meaning of section 57(a)(5)(C) of the Code), in which Gross Proceeds of that issue are invested and that is not acquired to carry out the governmental purposes of that issue.
“Proceeds,” with respect to an issue of governmental obligations, has the meaning set forth in has the meaning set forth in section 1.148- 1(b) of the Treasury Regulations (referring to sales, investment and transferred proceeds, but not replacement proceeds, of that issue). “Rebate Amount” has the meaning set forth in section 1.148- 1(b) of the Treasury Regulations.
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“Treasury Regulations” means the United States Treasury Regulations promulgated pursuant to sections 103 and 141 through 150 of the Code. “Yield” shall have:
(1) with respect to any Investment or class of Investments, that meaning which is set forth in section 1.148-5 of the Treasury Regulations; and (2) with respect to any issue, that meaning which is set forth in section 1.148- 4 of the Treasury Regulations.
(B) Not to Cause Interest to Become Taxable . The City shall not use, permit the use of, or omit to use Gross Proceeds of the Series 2024 Bonds or any other amounts (or any property the acquisition, construction or improvement of which is to be financed directly or indirectly with such Gross Proceeds) in a manner that if made or omitted, respectively, could cause the interest component of any purchase payment to fail to be excluded pursuant to section 103 of the Code from the gross income of the owner thereof for federal income tax purposes. Without limiting the generality of the foregoing, unless and until the City receives a written opinion of Bond Counsel to the effect that failure to comply with such covenant will not adversely affect the exclusion from gross income of interest on any Series 2024 Bond and the City shall comply with each of the specific covenants in this Section.
(C) Private Use or Private Payments. Except as would not cause any Series 2024 Bond to become a “private activity bond” within the meaning of section 141 of the Code and the Treasury Regulations and rulings thereunder, the City shall at all times prior to the final cancellation of the last of the Series 2024 Bonds to be retired:
(1) exclusively own, operate and possess all property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with Gross Proceeds of the Series 2024 Bonds and not use or permit the use of such Gross Proceeds (including all contractual arrangements with terms different than those applicable to the general public) or any property acquired, constructed or improved with such Gross Proceeds in any activity carried on by any person or entity (including the United States or any agency, department and instrumentality thereof) other than a state or local government, or agency or instrumentality thereof, unless such use is solely as a member of the general public; (2) not directly or indirectly impose or accept any charge or other payment by any governmental or nongovernmental person or entity in respect of the use of Gross Proceeds of the Series 2024 Bonds, or of any property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with such Gross Proceeds, of the type described in clause (1) foregoing, other than payments that are of taxes of general application within the jurisdiction of the City; and
(3) where the Series 2024 Bonds are refunded, the City will apply the foregoing restrictions taking cognizance of the provisions of sections 1.141-3(g) and 1.141-4(c)(2)(ii) of the Treasury Regulations and of any subsequently adopted rules or regulations applicable to such a refunding.
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(D) No Private Loan. Except as would not cause any Series 2024 Bond to become a “private activity bond” within the meaning of section 141 of the Code and the Treasury Regulations and rulings thereunder, the City shall not use Gross Proceeds to make or finance any loan to any person or entity other than a state or local government. For purposes of the foregoing covenant, such Gross Proceeds are considered to be “loaned” to a person or entity not only if such Gross Proceeds are provided to such a person or entity under circumstances that create an indebtedness of that person or entity under local law or for federal income tax purposes, but also if: (a) property acquired, constructed or improved with such Gross Proceeds is sold or leased to such person or entity in a transaction that creates a debt for federal income tax purposes; (b) capacity in or service from such property is committed to such person or entity under a take - or-pay, output or similar contract or arrangement; or (c) indirect benefits of such Gross Proceeds, or burdens and benefits of ownership of any property acquired, constructed or improved with such Gross Proceeds, are otherwise transferred in a transaction that is the economic equivalent of a loan. (E) Not to Invest at Higher Yield. Except as would not cause such Series 2024 Bonds to become “arbitrage bonds” within the meaning of section 148 of the Code and the Treasury Regulations and rulings thereunder, the City shall not, at any time prior to the final cancellation of the last Series 2024 Bond to be retired, directly or indirectly invest Gross Proceeds in any Investment, if as a result of such investment the Yield of any Investment or class of Investments acquired with Gross Proceeds, whether then held or previously disposed of, would materially exceed the Yield of the Series 2024 Bond, all as determined in accordance with the provisions of said section 148 and Treasury Regulations and rulings.
(F) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the Code and the Treasury Regulations and rulings thereunder, the City shall not take or omit to take any action that would cause any Series 2024 Bond to be “federally guaranteed” within the meaning of section 149(b) of the Code and the Treasury Regulations and rulings thereunder. Without limitation of the foregoing, the City will not permit any portion of the debt service on the Series 2024 Bonds to be guaranteed (in whole or in part) by the United States, or more than 5% of the proceeds of the Series 2024 Bonds to be loaned to any person under which the obligation of that person to repay such loan is guaranteed (in whole or in part) by the United States, or more than 5% of the proceeds of the Series 2024 Bonds to be invested (directly or indirectly) in federally insured deposits or accounts. For this purpos e, a guarantee or insurance by an agency or instrumentality of the United States will be treated as though made or provided by the United States.
(G) Information Report. The City shall timely file any information required by section 149(e) of the Code with respect to the Series 2024 Bonds with the Secretary of the Treasury on Forms 8038-G or such other forms and in such place as the Secretary may prescribe. (H) Rebate of Arbitrage Profits . Except to the extent otherwise provided in section 148(f) of the Code and the Treasury Regulations, in order to assure that no Series 2024 Bond is treated as an arbitrage bond:
(1) the City shall account for all Gross Proceeds of the Series 2024 Bonds (including all receipts, expenditures and investments thereof) on its books of acc ount separately and apart from all other funds (and receipts, expenditures and investments thereof) and shall retain ATTACHMENT 9
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all records of accounting for at least six years after the day on which the last Series 2024 Bond is discharged. However, to the extent permitted by law, the City may commingle Gross Proceeds of Series 2024 Bonds with its other monies, provided that it separately accounts for each receipt and expenditure of Gross Proceeds and the obligations acquired therewith; (2) not less frequently than each Computation Date, the City shall retain the services of a qualified rebate analyst to calculate the Rebate Amount in accordance with rules set forth in section 148(f) of the Code and the Treasury Regulations and rulings thereunder. The City promptly shall report to the Trustee the results of such calculation, including the basis therefor, in sufficient detail and on a timely basis in order that the City shall be able to comply with its covenants herein. The Trustee shall maintain a copy of the calculation with its official transcript of proceedings relating to the issuance of the Series 2024 Bonds until six years after the final Computation Date;
(3) to assure the excludability of the interest on Series 2024 Bonds from the gross income of the owners thereof for federal income tax purposes, the City shall pay to the Trustee for deposit into the Rebate Fund established herein an amount sufficient to permit the City timely to pay to the United States the amount that when added to the future value of previous rebate payments made for the Series 2024 Bonds equals (i) in the case of a Final Computation Date as defined in section 1.148- 3(e)(2) of the Treasury Regulations, one hundred percent (100%) of the Rebate Amount on such date; and (ii) in the case of any other Computation Date, ninety percent (90%) of the Rebate Amount on such date. In all cases, such rebate payments shall be made by the City at the times and in the amounts as are or may be required by section 148(f) of the Code and the Treasury Regulations and rulings thereunder, and shall be accompanied by Form 8038- T or such other forms and information as is or may be required by section 148(f) of the Code and the Treasury Regulations and rulings thereunder for execution and filing by the City; and (4) the City shall exercise reasonable diligence to assure that no errors are made in the calculations and payments required by paragraphs (ii) and (iii), and if an error is made, to discover and promptly correct such error within a reasonable amount of time thereafter (and in all events within one hundred eighty (180) days after discovery of the error), including by payment to the United States of any additional Rebate Amount owed to it, interest thereon, and any penalty imposed under section 1.148-3(h) or other provision of the Code or Treasury Regulations. (I) Not to Divert Arbitrage Profits . Except to the extent permitted by section 148 of the Code and the Treasury Regulations and rulings thereunder, the City shall, not at any time prior to the final cancellation of the last of the Series 2024 Bonds to be retired, enter into any transaction that reduces the amount required to be paid to the United States pursuant to paragraph (H) of this Section because such transaction results in a smaller profit or a larger loss than would have resulted if the transaction had been at arm’s length and had the Yield on the Series 2024 Bonds not been relevant to either party.
(J) Series 2024 Bonds Not Hedge Bonds. The City represents and covenants that none of the Series 2024 Bonds is or will become a “hedge bond” within the meaning of section 149(g) of the Code. Without limitation of the foregoing, (A) the City will not deliver the Series 2024 Bonds unless on the date of the issuance of the Series 2024 Bonds it reasonably expects that within the three- year period commencing on such date of issuance at least 85% of such spendable ATTACHMENT 9
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proceeds of the Series 2024 Bonds will be expended for the governmental purposes thereof and (B) the City covenants that at no time will more than 50% of such spendable proceeds of the Series 2024 Bonds be invested in Nonpurpose Investments having a substantially guaranteed yield for a period of four years or more.
(K) Use of Proceeds; Weighted Average Maturity . The City hereby represents and covenants that it will apply the proceeds of the Series 2024 Bonds in a manner so that the weighted average maturity of the Series 2024 Bonds does not exceed 120% of the average reasonably expected remaining economic life of the facilities financed or refinanced therewith (all determined in accordance with the provisions of section 147(b) of the Code). (L) Elections. The City hereby directs and authorizes each of the Mayor, the Vice Mayor, the City Manager, a Deputy City Manager, the City Treasurer, the Financial Services Director, the General Manager of Burbank Water and Power and the Chief Financial Officer of Burbank Water and Power to make elections permitted or required pursuant to the provisions of the Code or the Treasury Regulations, as such authorized City representative (after consultation with Bond Counsel) deems necessary or appropriate in connection with the Series 2024 Bonds, in the Series 2024 Bond as to Tax Exemption or similar or other appropriate certificate, form or document.
(M) Closing Certificate. The City agrees to execute and deliver in connection with the issuance of Series 2024 Bonds a Tax Certificate as to Arbitrage and the Provisions of Sections 103 and 141-150 of the Code, or similar document containing additional representations and covenants pertaining to the excludability of interest from the gross income of the Owners for federal income tax purposes, which representations and covenants are incorporated as though expressly set forth herein.
SECTION 15.14. T
erms of Series 2024 Bonds Subject to the Master Water Revenue Bond Indenture. Except as in this Fourth Supplement expressly provided, every term and condition contained in the Master Water Revenue Bond Indenture shall apply to the Fourth Supplement and to the Series 2024 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 the Fourth Supplement.
The Fourth Supplement and all the terms and provisions herein contained shall form part o
f the Master Water Revenue Bond Indenture as fully and with the same effect as if all such terms and provisions had been set forth in the Master Water Revenue Bond Indenture. The Master Water Revenue Bond Indenture is hereby ratified and confirmed and shall continue in full force and effect in accordance with the terms and provisions thereof, as supplemented hereby.
SECTION 15.15. E
ffective Date of Fourth Supplement. The Fourth Supplement shall take effect upon its execution and delivery.
SECTION 15.16. Exe cution in Counterparts. The Fourth Supplement 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.
ATTACHMENT 9
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Error! Unknown document property name. 12
IN WITNESS WHEREOF, the parties hereto have executed the Fourth Supplement by their officers thereunto duly authorized as of the day and year first written above.
CITY OF BURBANK
By:
Chief Financial Officer
Burbank Water and Power
ATTEST:
By:
City Clerk
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By:
Authorized Officer
ATTACHMENT 9
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EXHIBIT A
(FORM OF SERIES 2024 BOND)
No. ___ $__________
UNLESS THIS SERIES 2024 BOND IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SERIES 2024 BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CITY OF BURBANK, CALIFORNIA
BURBANK WATER AND POWER WATER REVENUE REFUNDING BOND,
SERIES OF 2024
Maturity Date Interest Rate Dated Date CUSIP
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
The CITY OF BURBANK, CALIFORNIA a municipal corporation and chartered city duly organized and existing under the Constitution and the laws of the State of California (the “City”), for value received, hereby promises to pay (but only out of the Water Net Revenues and funds hereinafter referred to) to the registered owner named above or registered assigns, on the maturity date specified above (subject to any right of prior redemption or payment as provided in the hereinafter mentioned Indenture), the principal sum specified above together with interest thereon from the dated date specified above until the principal hereof shall have been paid, at the interest rate per annum specified above, payable semiannually on June 1 and December 1 in each year, commencing on December 1, 2024. Interest hereon is payable in lawful money of the United States of America by (except as otherwise provided in the hereinafter mentioned Indenture) check mailed by first-class mail on each interest payment date to the registered owner as of the close of business on the 15th day of the calendar month immediately preceding such interest payment date.
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The principal hereof and premium, if any, hereon are payable when due upon presentation hereof at the Corporate Trust Office (as defined in the Indenture) of U.S. Bank Trust Company, National Association, as successor trustee (together with any successor as trustee under said Indenture, the “Trustee”), in lawful money of the United States of America. Interest with respect to this Bond (as hereinafter defined) shall be payable from the interest payment date next preceding the date of authentication thereof unless such date of authentication is on or before an interest payment date and after the close of business on the preceding Record Date, in which case interest with respect thereto shall bear interest from such interest payment date, or unless such date of authentication is on or before the first Record Date, in which case interest with respect thereto shall be payable from the date of delivery of this Bond, or unless this Bond is in default as of the date of authentication thereof, in which case interest with respect thereto shall be payable from the date to which interest has been paid in full, payable on each interest payment date.
This bond is one of a duly authorized issue of City of Burbank, California, Burbank Water and Power Water Revenue Refunding Bonds (the “Bonds”) of the series and designation indicated on the face hereof. Such authorized issue of Bonds is not limited in aggregate principal amount, except as otherwise provided in the hereinafter mentioned Indenture, and consists or may consist of one or more series of varying denominations, dates, maturities, interest rates and other provisions, as in said Indenture provided, all issued and to be issued pursuant to the provisions of Article 12 of Chapter 4 of Title 2 of the City Code. This Bond is issued pursuant to a Burbank Water and Power Water Revenue Bond Indenture, dated as of November 1, 2010, by and between the City and the Trustee and a Fourth Supplemental Burbank Water and Power Water Revenue Bond Indenture, dated as of June 1, 2024 (the “Fourth Supplement”), by and between the City and the Trustee, authorizing the issuance of a Series of Bonds of which this Bond is one (such indenture as amended and supplemented, including as supplemented by the Fourth Supplement, collectively, the “Indenture”). Reference is hereby made to the Indenture for a description of the terms under which the Bonds are issued and to be issued, the provisions with regard to the nature and extent of the Water Net Revenues (as that term is defined in the Indenture), and the rights of the registered owners of the Bonds; and all the terms of the Indenture are hereby incorporated herein and constitute a contract between the City and the registered owner from time to time of this Bond, and to all the provisions thereof the registered owner of this Bond, by its acceptance hereof, consents and agrees. Additional Bonds may be issued, and indebtedness may be incurred, on a parity with the Bonds of this authorized issue, but only subject to the conditions and limitations contained in the Indenture.
The Bonds and the Parity Debt (as defined in the Indenture) hereafter issued by the City are payable from, and are secured by a pledge of and lien on, the Water Net Revenues and all amounts held by the Trustee under the Indenture (except for amounts held in the Rebate Fund), subject only to the provisions of the Indenture permitting the application thereof for the pur poses and on the terms and conditions provided in the Indenture.
The Bonds are revenue obligations of the City and are payable as to both principal and interest, and any premium upon redemption thereof, exclusively from Water Net Revenues and certain other funds pledged under the Indenture. The Bonds are special, limited obligations of the City. The Bonds shall not be deemed to constitute a debt or liability of the City, the State of California or of any political subdivision thereof within the meaning of any constitutional or statutory provision, or a pledge of the faith and credit of the City, the State of California or of any ATTACHMENT 9
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political subdivision thereof, but shall be payable, except to the extent of certain amounts held under the Indenture pledged therefor, solely from Water Net Revenues. Neither the faith and credit nor the taxing power of the City, the State of California or of any political subdivision thereof is pledged to the payment of the principal of, premium, if any, or the interest on the Bonds. The issuance of the Bonds shall not directly or indirectly or contingently obligate the City, the State of California or any political subdivision thereof to levy or to pledge any form of taxation whatsoever therefor or to make any appropriation for their payment.
The Bonds are subject to redemption as provided in the Fourth Supplement and as otherwise provided in the Indenture.
This Bond is transferable or exchangeable for other Authorized Denominations by the registered owner hereof, in person or by its duly authorized attorney, at the Corporate Trust Office of the Trustee, 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 or exchange a new fully registered Bond or Bonds, of Authorized Denomination or Denominations, of the same series, tenor, maturity and interest rate for the same aggregate principal amount will be issued to the registered owner in exchange therefor.
The City, the Trustee and any paying agent may deem and treat the registered owner hereof as the absolute owner hereof for all purposes, and the City, the Trustee and any paying agent shall not be affected by any notice to the contrary.
The rights and obligations of the City and of the registered owners of the Bonds may be modified or amended at any time in the manner, to the extent, and upon the terms provided in the Indenture, which provide, in certain circumstances, for modifications and amendments without the consent of or notice to the registered owners of the Bonds.
It is hereby certified and recited that any and all acts, conditions and things required to exist, to happen and to be performed, precedent to and in the incurring of the indebtedness evidenced by this Bond, and in the issuing of this Bond, do exist, have happened and have been performed in due time, form and manner, as required by the Constitution and statutes of the State of California, and that this Bond, together with all other indebtedness of the City pertaining to the Water Net Revenues, is within every debt and other limit prescribed by the Constitution and the statutes of the State of California, and is not in excess of the amount of Bonds permitted to be issued under the Indenture or otherwise.
This Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon endorsed shall have been manually signed by the Trustee.
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.
ATTACHMENT 9
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IN WITNESS WHEREOF, THE CITY OF BURBANK, CALIFORNIA has caused this Bond to be executed in its name and on its behalf by the Financial Services Director of the City and countersigned by the City Clerk or Assistant City Clerk by their facsimile or manual signatures and the seal of the City to be reproduced hereon.
CITY OF BURBANK, CALIFORNIA
By:
Financial Services Director
(SEAL)
Attested:
By:
City Clerk
ATTACHMENT 9
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[FORM OF CERTIFICATE OF AUTHENTICATION
AND REGISTRATION]
This is one of the Bonds described in the within mentioned Indenture and registered on the date set forth below.
Dated: [____], 2024
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By:
Authorized Officer
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[FORM OF ASSIGNMENT]
For value received ______________________________ hereby sell, assign and transfer unto ______________________________ the within Bond and hereby irrevocably constitute and appoint ____________________ attorney, to transfer the same on the books of the City at the office of the Trustee, with full power of substitution in the premises.
NOTE: The signature to this Assignment
must correspond with the name on the face
of the within registered bond in every
particular, without alteration or enlargement
or any change whatsoever.
Dated:
Signature Guaranteed by:
NOTE: Signature must be guaranteed by an
eligible guarantor institution.
ATTACHMENT 9
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EXHIBIT B
FORM OF REQUISITION
$[____] Aggregate Principal Amount of
City of Burbank, California
Burbank Water and Power Water Revenue Refunding Bonds,
Series of 2024
U.S. Bank Trust Company, National Association
633 W. Fifth Street, 24th Floor
Los Angeles, California 90071
Attn:
Re: Fourth Supplemental Burbank Water and Power Water Revenue Bond Indenture, dated as of June 1, 2024, by and between the City of Burbank and U.S. Bank Trust Company, National Association, as trustee, relating to the City of Burbank, California Burbank Water and Power Water Revenue Refunding Bonds, Series of 2024
REQUISITION NO. __
SERIES 2024 COSTS OF ISSUANCE FUND
Please pay, from the Series 2024 Costs of Issuance Fund established under Section 15.11 of
the above-referenced Fourth Supplemental Indenture, the amounts set forth on Exhibit A for the purposes therein designated, each such payment to be made to the person or entity therein designated upon presentation of an invoice from such person or entity.
Each such payment is a proper charge against such Fund, and no payment for any such c
harge has previously been made.
Dated: __________
CITY OF BURBANK
By: ______________________________________
ATTACHMENT 9
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EXHIBIT A
To Series 2024 Costs of Issuance Fund
PAYEE PURPOSE AMOUNT[*]
____________________
[* Not to exceed amount.]
(SEE ATTACHED SUPPORTING DOCUMENTATION)
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