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Home My WebLink AboutG04 FirstAmend2016IndQuint & Thimmig LLP FIRST AMENDMENT TO INDENTURE OF TRUST Dated as of February 1, 2024 by and between the CITY OF TUSTIN and 12/21/23 01/03/24 01/10/24 01/22/24 THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee Amending that certain Indenture of Trust, dated as of September 1, 2016, by and between the City of Tustin and The Bank of New York Mellon Trust Company, N.A., as Trustee, relating to: $21,515,000 City of Tustin (Orange County, California) 2016 Water Revenue Refunding Bonds 20027.04 FIRST AMENDMENT TO INDENTURE OF TRUST This FIRST AMENDMENT TO INDENTURE OF TRUST (this "First Amendment"), dated as of February 1, 2024, is made between by and between the CITY OF TUSTIN, a municipal corporation and general law city organized and existing under the constitution and laws of the State of California (the "City"), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized and existing under the laws of the United States of America, with a corporate trust office in Los Angeles, California, as trustee (the "Trustee"), amending that certain Indenture of Trust, dated as of September 1, 2016, by and between the City and the Trustee (the "Original Indenture"). WHEREAS, the City and the Trustee have executed and delivered the Original Indenture under and pursuant to which the City issued its $21,515,000 City of Tustin (Orange County, California) 2016 Water Refunding Revenue Bonds (the "Bonds"); WHEREAS, the proceeds of the Bonds were used to finance the costs of the acquisition and construction of certain new additions, betterments, extensions and improvements to the municipal water system owned and operated by the City; WHEREAS, it has been determined that the Original Indenture is defective in that Section 5.02 of the Original Indenture does not adequately provide for the flow of Gross Revenues required for the payment of Subordinate Debt; and WHEREAS, Section 10.01(b) of the Original Indenture provides that the Original Indenture may be modified or amended from time -to -time and at any time by an indenture or indentures supplemental thereto, which the City and the Trustee may enter into without the consent of any Owners, to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained therein, or in any other respect whatsoever as the City may deem necessary or desirable, provided under any circumstances that such modifications or amendments shall not, in the reasonable determination of the City, materially adversely affect the interests of the Owners; NOW, THEREFORE, the parties hereto, for good and valuable consideration the receipt of which is acknowledged, and intending to be legally bound hereby, agree as follows: Section 1. Definitions. All defined terms used in this First Amendment and the Recitals hereto, unless defined elsewhere in this First Amendment, shall have the meanings given to those terms in the Original Indenture. Section 2. Amendment of Section 5.02 of the Original Indenture. Section 5.02 of the Original Indenture is hereby amended in full as follow: Section 5.02. Receipt, Deposit and Application of Gross Revenues and Net Revenues. (a) Application of Gross Revenues. All of the Gross Revenues shall be deposited by the City immediately upon receipt in the Water Fund. All Gross Revenues shall be held in trust by the City in the Water Fund and shall be applied, transferred, used and withdrawn only for the following purposes: 20027.04 (i) Maintenance and Operation Costs. The City shall first pay from the moneys in the Water Fund the budgeted Maintenance and Operation Costs as such Maintenance and Operation Costs become due and payable. (ii) Payment of Debt Service. On or before the 5th Business Day preceding each Interest Payment Date, (A) the City shall withdraw from the Water Fund and transfer to the Trustee, for deposit in the Bond Fund, an amount which, together with the balance then on deposit in the Bond Fund, the Interest Account, the Principal Account and the Sinking Account (other than amounts required for payment of principal of or interest on any Bonds which have matured but which have not been presented for payment), is equal to the aggregate amount of principal of and interest coming due and payable on the Bonds and (B) shall withdraw from the Water Fund and transfer amounts required for the payment of debt service on any Parity Obligations. The transfers required to pay debt service on the Bonds and any Parity Obligations shall be made without preference or priority and, in the event moneys in the Water Fund are not sufficient to pay the debt service requirement for the Bonds and any Parity Obligations, the City shall pay such amounts on a pro rata basis based on the debt service requirements for the Bonds and each outstanding Parity Obligations. (iii) Payment of Debt Service on Subordinate Debt. On or before the 5th Business Day preceding each interest payment date with respect to Subordinate Debt, the City shall withdraw from the Water Fund and transfer amounts required for the payment of debt service on such Subordinate Debt. (iv) Surplus. As long as all of the foregoing payments, allocations and transfers are made at the times and in the manner set forth above, any moneys remaining in the Water Fund may at any time be treated as surplus and applied for any lawful purpose. (b) Application of Moneys in the Bond Fund. On or before the Business Day preceding each Interest Payment Date, the Trustee shall transfer from the Bond Fund and deposit into the following respective accounts (each of which the Trustee shall establish and maintain within the Bond Fund), the following amounts, in the following order of priority, the requirements of each such account (including the making up of any deficiencies in any such account resulting from lack of Net Revenues sufficient to make any earlier required deposit) at the time of deposit to be satisfied before any transfer is made to any account subsequent in priority: First: to the Interest Account, the aggregate amount of interest becoming due and payable on the next succeeding Interest Payment Date on all Bonds then Outstanding; Second: to the Principal Account, the aggregate amount of principal becoming due and payable on the Outstanding Bonds on the next succeeding Interest Payment Date, if any; and Third: to the Sinking Account, the aggregate amount of sinking fund installment becoming due and payable on the Outstanding Bonds on the next succeeding Interest Payment Date, if any. -2- Section 3. Survival. Except as specifically provided in this First Amendment, all terms and conditions of the Original Indenture shall remain in full force and effect, unaltered and unamended hereby. Section 4. Counterparts. This First Amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. Section 5. Governing Law. This First Amendment shall be governed by and construed and interpreted in accordance with the Constitution and laws of the State of California without giving effect to conflict of laws principles thereof. Section 6. Headings. Headings of Sections in this First Amendment are for reference purposes only and shall not be deemed to have any substantive effect. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] -3- IN WITNESS WHEREOF, the CITY OF TUSTIN has caused this First Amendment to be signed in its name by the City Manager and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., in token of its acceptance of the trust created hereunder, has caused this Indenture to be signed in its corporate name by one of its authorized officers, all as of the day and year first above written. CITY OF TUSTIN t By 1A %-V City Manager THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee Authorized Officer [Signature page to First Amendment to Indenture of Trust, dated as of February 1, 2024, by and between the Tustin Public Financing Authority and The Bank of New York Mellon Trust Company, N.A., as Trustee, Amending that certain Indenture of Trust, dated as of September 1, 2016, by and between the City of Tustin and The Bank of New York Mellon Trust Company, N.A., as Trustee] -4- !• • 0 IN WITNESS WHEREOF, the CITY OF TUSTIN has caused this First Amendment to be signed in its naive by the City Manager and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., in token of its acceptance of the trust created hereunder, bas caused this Indenture to be signed iiz its corporate name by one of its authorized officers, all as of the day and near first above written. CITY OF TUSTIN W" MA a . T IG OF NEWORI TRUST COMPANY, N.A., as Trustee y *�L ""-A Au oxized Office 40 me 00 am aem� [Signature page to First Antendirtent to Indenture of Trust, dated as of February 1, 2024, by and between the Tustin Public Financing Authority and The Bank of New York Mellon Trust Company, N.A., as Trustee, Amending that certain Indenture of Trust, dated as of September 1, 2016, by and between the City of Tustin and The Bank of New York Mellon Trust Company, N.A., as Trustee]