HomeMy WebLinkAbout32-17 Economic Development Revenue Bonds (Studebaker Project) 0U TH&
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227 W.JEFFERSON BOULEVARD j� C�� PHONE:574/235-9371
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SOUTH BEND,IN 46601-1830
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CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR
COMMUNITY INVESTMENT
May 17, 2017
Filed in Clerk's Once
Mr. Tim Scott, President MAY 17 2017
South Bend Common Council
4th Floor County-City Building KAREEMAH FOWLER
South Bend, IN 46601 CITY CLERK,SOUTH BEND,IN
RE: Economic Development Revenue Bonds 2017 (Studebaker Project)
Dear President Scott:
Attached for the Common Council's consideration is an Ordinance that approves the issuance of
Economic Development Revenue Bonds (Bonds)to support facade improvements to the former
Studebaker Building 84.
As you may know, in October 2012 the Redevelopment Commission approved a Development
Agreement with Union Station Properties, LP, committing $3,500,000 in funding from the River
West Development Area for building stabilization and facade improvements to Building 84,the
remaining Studebaker campus manufacturing facility.
In 2016 the Renaissance District(District),which includes Building 84, was awarded a Regional
Cities grant of$3,500,000. The issuance of these Bonds will allow all funding sources to be
pooled together and enable the facade transformation of this six story, 100,000 square foot
building overlooking the City's downtown.
Thank you for your consideration. I, along with Shawn Peterson and Lisa Lee representing the
District, will attend the Community Investment Committee and Council meetings on June 12,
2017 to address any questions.
Sincerely,
4
es Mueller
Executive Director
Department of Community Investment
PLANNING NEIGHBORHOOD ENGAGEMENT BUSINESS DEVELOPMENT ADMINISTRATION&FINANCE ECONOMIC RESOURCES
TIM CORCORAN PAMELA C.MEYER ELIZABETH LEONARD INKS
ORDINANCE NO.
AN ORDINANCE OF THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA AUTHORIZING THE
CITY OF SOUTH BEND, INDIANA TO ISSUE ITS "TAXABLE
ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES
2017 (STUDEBAKER PROJECT)" AND APPROVING AND
AUTHORIZING OTHER ACTIONS IN RESPECT THERETO
STATEMENT OF PURPOSE AND INTENT
The South Bend Economic Development Commission ("Commission") conducted a
public hearing and adopted a resolution on or about June 5, 2017, which resolution has been
transmitted hereto, finding that the financing of certain economic development facilities of
RDistrict Two LLC ("Developer") complies with the purposes and provisions of IC 36-7-11.9
and -12 and that such financing will be of benefit to the health and welfare of the City of South
Bend, Indiana("City") and its citizens.
The Redevelopment Commission of the City has determined to pledge TIF Revenues (as
defined in the hereinafter defined Financing Agreement) to be used to pay principal on the Bonds
pursuant to the Financing Agreement. The City shall issue its Taxable Economic Development
Revenue Bonds, Series 2017 (Studebaker Project) ("Bonds") pursuant to this ordinance to
finance a portion of the costs of the reskinning and restoration of Building 84 of the Studebaker
Facilities (as hereinafter defined) ("Bond Project"), including all necessary appurtenances,
related improvements and equipment, in connection with the remediation and rehabilitation of
the former Studebaker manufacturing facilities ("Studebaker Facilities") and other related
improvements and expenses, if any.
The Commission has heretofore published notice of a public hearing to be held on the
proposed issuance of the Bonds and conducted such public hearing at a meeting of the
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Commission on June 5, 2017 ("Public Hearing"), and following such Public Hearing, the
Commission has approved and recommended the adoption of this form of ordinance by this
Common Council, has considered the issue of adverse competitive effect and has approved the
forms of and has transmitted for approval by the Common Council the Financing and Covenant
Agreement between the Developer and the City, dated as of June 1, 2017 ("Financing and
Covenant Agreement"); the Trust Indenture (including form of Bonds) between the Issuer and
the Trustee, dated as of June 1, 2017 ("Indenture"); and the Bond Purchase Agreement between
the Issuer and the purchaser of the Bonds (collectively with the Financing and Covenant
Agreement and the Indenture, "Financing Agreement").
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF
THE CITY OF SOUTH BEND, INDIANA AS FOLLOWS:
SECTION I. It is hereby found that: (i) the financing of the Bond Project referred to in
the Financing Agreement approved by the Commission and presented to this Common Council;
(ii) the issuance and sale of the City's Taxable Economic Development Revenue Bonds, Series
2017 (Studebaker Project) ("Bonds"); (iii) the payment of the principal on the Bonds from TIF
Revenues pledged by the South Bend Redevelopment Commission for such purpose in the
amount of $3,500,000 under the Financing Agreement which pledge constitutes
a non-
shareholder contribution to the Developer for federal tax purposes; and (iv) the securing of the
Bonds by granting a security interest in the Trust Estate (as defined in the Indenture) to the
Trustee under the Indenture; complies with the purposes and provisions of IC 36-7-11.9, -12, -14
and -25 (collectively, "Act"), and will be of benefit to the health and welfare of the City and its
citizens.
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SECTION 11. The economic development facilities will consist of the Bond Project as
permitted by the Act.
SECTION 111. At the Public Hearing, the Commission considered whether the Project
would have an adverse competitive effect on any similar facilities located in the City as required
by IC 36-7-12-21. The Commission also considered whether the Bond Project would be of
benefit to the public health and welfare of the City and found that financing the Bond Project
would be of benefit to the public health and welfare of the City and the Common Council hereby
confirms that finding.
SECTION IV. The substantially final forms of the Financing and Covenant Agreement,
the Indenture and the Bond Purchase Agreement approved by the Commission are hereby
approved as the Financing Agreement as referred to in the Act, and the Financing Agreement
shall be incorporated herein by reference and shall be inserted in the minutes of the Common
Council and kept on file by the Clerk. In accordance with the provisions of IC 36-1-5-4, two (2)
copies of the Financing Agreement are on file in the office of the Clerk for public inspection.
SECTION V. The City may issue its Bonds, maturing no later than three (3) years after
their date of issuance, in the aggregate principal amount not to exceed $3,500,000. The Bonds
may be issued in installments and bond proceeds drawn down as set forth in the Indenture. The
Bonds are to be issued for the purpose of procuring funds to pay the costs of the Bond Project, all
as more particularly set out in the Indenture and the Financing and Covenant Agreement,
incorporated herein by reference, which Bonds will be payable as to principal and premium, if
any, from TIF Revenues and as to interest, if any, by the Developer, pursuant to the Financing
Agreement or as otherwise provided in the Indenture. The Bonds shall be issued in fully
registered form in denominations of$100,000 and any integral multiples of$1,000 thereafter or
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as provided in the Indenture, payable either: (i) on the first day of each month; (ii) quarterly on
January 1, April 1, July 1 and October 1; (iii) semiannually on February 1 and August 1; or (iv)
at maturity, as determined by the Controller with the advice of the City's financial advisor. The
Bonds are subject to optional redemption, prior to maturity, in whole or in part, at the option of
the City, on any date, on seven (7) days' notice to the Trustee, at face value, with no premium.
The Bonds may be issued as term bonds subject to mandatory sinking fund redemption.
Payments on the Bonds are payable in lawful money of the United States of America by check
mailed or delivered to the registered owners or by wire transfer as provided in the Indenture.
The Bonds shall never constitute a general obligation of, an indebtedness of, or a charge against
the general credit of the City as described in the Indenture.
SECTION VI. The Mayor and the Controller are authorized and directed to sell the
Bonds to the purchaser thereof at a price not less than 100% of the par value thereof. The Bonds
shall bear interest at a rate of not to exceed 2% per annum payable either: (i) on the first day of
each month; (ii) quarterly on January 1, April 1, July 1 and October 1; (iii) semiannually on
February 1 or August 1; or (iv) at maturity, as determined by the Controller with the advice of
the City's financial advisor. The first interest payment date shall be set forth in the Indenture.
Interest on the Bonds shall be calculated on an average daily balance basis.
SECTION VII. The Mayor and the Controller are authorized and directed to execute,
attest, affix or imprint by any means the City seal to the documents constituting the Financing
Agreement approved herein on behalf of the City and any other document which may be
necessary or desirable to consummate the transaction, including the Bonds authorized herein.
The Mayor and the Controller are hereby expressly authorized to approve any modifications or
additions to the documents constituting the Financing Agreement which take place after the date
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of this ordinance with the review and advice of their counsel; it being the express understanding
of this Common Council that the terms of the Financing Agreement are in substantially final
form as of the date of this ordinance. The approval of said modifications or additions shall be
conclusively evidenced by the execution and attestation thereof and the affixing of the seal
thereto or the imprinting of the seal thereon; provided, however, that no such modification or
addition shall change the maximum issuance amount or maturity amount of, interest rate on or
term of the Bonds as approved by the Common Council by this ordinance without further
consideration by the Common Council. The signatures of the Mayor, the Controller and the
Clerk on the Bonds may be either manual or facsimile signatures. The Controller is authorized
to arrange for delivery of such Bonds to the trustee named in the Indenture. Payment for the
Bonds will be made to the trustee named in the Indenture, and after such payment the Bonds will
be delivered by the Trustee to the purchasers thereof. The Bonds shall be originally dated as of
the issue date.
SECTION VIII. The provisions of this ordinance and the Indenture securing the Bonds
shall constitute a contract binding between the City and the holders of the Bonds, and after the
issuance of the Bonds, this ordinance shall not be repealed or amended in any respect which
would adversely affect the rights of such holders so long as the Bonds or the interest thereon
remains unpaid.
SECTION IX. This ordinance shall be in full force and effect from and after its passage
and approval by the Mayor.
Member of the Common Council
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Attest:
Kareemah Fowler, Clerk
Presented by me, the undersigned Clerk of the City of South Bend, to the Mayor of the
City for his approval on the day of , 2017, at the hour of
m.
Kareemah Fowler, Clerk
Approved and signed by me on the day of 2017, at the
hour of .m.
Pete Buttigieg, Mayor of the City of South Bend,
Indiana
Filed in Clerk's Office
FMAY 1`7 2017 1
KAREEMAH FOWLER
CITY CLERK,SOUTH BEND,IN
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EXHIBIT A
South Bend Redevelopment Commission Resolution No. 3393
[See attached.]
ICE MILLER LLP
DRAFT FOR DISCUSSION
PURPOSES ONLY
May 3,2017
TRUST INDENTURE
BETWEEN
CITY OF SOUTH BEND, INDIANA
AND
1ST SOURCE BANK,
As Trustee
$3,500,000
CITY OF SOUTH BEND, INDIANA
TAXABLE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2017
(STUDEBAKER PROJECT)
Dated as of June 1, 2017
Filed in Clerk's Office
MAY 1 '7 2017
KAREEMAH FOWLER
CITY CLERK,SOUTH BEND,IN
I\11860514.2
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS...........................................................................................10
SectionI.I. Terms Defined ...........................................................................................10
Section 1.2. Rules of Interpretation...............................................................................12
ARTICLE11. THE BONDS.............................................................................................14
Section 2.1. Authorized Amount of Series 2017 Bonds................................................14
Section 2.2. Issuance of Series 2017 Bonds ..................................................................14
Section 2.3. Payment on Bonds.....................................................................................15
Section 2.4. Execution; Limited Obligation ..................................................................15
Section 2.5. Authentication............................................................................................16
Section 2.6. Form of Bonds...........................................................................................16
Section 2.7. Delivery of Series 2017 Bonds..................................................................16
Section 2.8. Issuance of Additional Bonds....................................................................16
Section 2.9. Mutilated, Lost, Stolen, or Destroyed Bonds.............................................17
Section 2.10. Registration and Exchange of Series 2017 Bonds; Persons Treated
asOwners...................................................................................................18
ARTICLE 11I. APPLICATION OF SERIES 2017 BOND PROCEEDS..........................19
Section 3.1. Deposit of Funds........................................................................................19
ARTICLE IV. REVENUE AND FUNDS.........................................................................20
Section 4.1. Source of Payment of Bonds......................................................................20
Section4.2. Bond Fund..................................................................................................20
Section 4.3. Construction Fund......................................................................................20
Section4.4. TIF Revenues.............................................................................................22
Section 4.5. Interest Payments.......................................................................................22
Section4.6. Trust Funds ................................................................................................23
Section4.7. Investment..................................................................................................23
ARTICLE V. REDEMPTION OF SERIES 2017 BONDS BEFORE MATURITY.......24
Section 5.1. Redemption Dates and Prices....................................................................24
Section 5.2. Notice of Redemption................................................................................24
Section 5.3. Cancellation...............................................................................................24
Section 5.4. Redemption Payments ...............................................................................25
Section 5.5. Partial Redemption of Bonds.....................................................................25
ARTICLE VI. GENERAL COVENANTS........................................................................26
Section 6.1. Payment of Principal..................................................................................26
Section 6.2. Performance of Covenants.........................................................................26
Section 6.3. Filing of Indenture, Financing Agreement and Security Instruments........27
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Section 6.4. Inspection of Books ...................................................................................27
Section 6.5. List of Bondholders....................................................................................27
Section 6.6. Rights Under Financing Agreement ..........................................................27
Section 6.7. Investment of Funds...................................................................................27
Section 6.8. Non-presentment of Bonds........................................................................27
Section 6.9. Direction of Bondholders...........................................................................28
ARTICLE VII. DEFAULTS AND REMEDIES ................................................................29
Section 7.1. Events of Default.......................................................................................29
Section7.2. Reserved.....................................................................................................29
Section 7.3. Remedies; Rights of Bondholders .............................................................29
Section 7.4. Right of Bondholders to Direct Proceedings.............................................30
Section 7.5. Application of Moneys ..............................................................................30
Section 7.6. Remedies Vested In Trustee......................................................................31
Section 7.7. Rights and Remedies of Bondholders........................................................31
Section 7.8. Termination of Proceedings.......................................................................32
Section 7.9. Waivers of Events of Default.....................................................................32
ARTICLE VIII. THE TRUSTEE AND PAYING AGENT.................................................33
Section 8.1. Acceptance of the Trusts............................................................................33
Section 8.2. Fees, Charges and Expenses of Trustee and Paying Agent.......................36
Section 8.3. Notice to Bondholders if Default Occurs...................................................36
Section 8.4. Intervention by Trustee..............................................................................36
Section 8.5. Successor Trustee.......................................................................................36
Section 8.6. Resignation by the Trustee.........................................................................36
Section 8.7. Removal of the Trustee..............................................................................37
Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary
Trustee........................................................................................................3 7
Section 8.9. Concerning Any Successor Trustees .........................................................37
Section 8.10. Trustee Protected in Relying Upon Resolutions, etc.................................37
Section 8.11. Appointment of Paying Agent and Registrar; Resignation or
Removal of Paying Agent..........................................................................37
ARTICLE IX. SUPPLEMENTAL INDENTURES ..........................................................39
Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders............39
Section 9.2. Supplemental Indentures Requiring Consent of Bondholders...................39
Section 9.3. Opinion of Counsel....................................................................................40
ARTICLE X. AMENDMENTS TO THE FINANCING AGREEMENT........................41
Section 10.1. Amendments, etc........................................................................................41
Section 10.2. Amendments, etc........................................................................................41
Section 10.3. Opinion of Counsel....................................................................................41
ARTICLE XI. MISCELLANEOUS..................................................................................42
Section 11.1. Satisfaction and Discharge.........................................................................42
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Section 11.2. Defeasance of Bonds..................................................................................42
Section 11.3. Cancellation of Series 2017 Bonds............................................................44
Section 11.4. Application of Trust Money.......................................................................44
Section 11.5. Consents, etc..............................................................................................44
Section 11.6. Limitation of Rights...................................................................................45
Section 11.7. Severability................................................................................................45
Section11.8. Notices .......................................................................................................45
Section 11.9. Counterparts...............................................................................................45
Section 11.10. Applicable Law..........................................................................................45
Section 11.11. Immunity of Officers and Directors...........................................................45
Section11.12. Holidays.....................................................................................................46
Section 11.13. Section 118 Nonshareholder Contribution.................................................46
Section 11.14. Section 118 Tax Accounting......................................................................46
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TRUST INDENTURE
THIS TRUST INDENTURE dated as of the first day of June, 2017, by and between the
CITY OF SOUTH BEND, INDIANA ("Issuer"), a municipality duly organized and existing
under the laws of the State of Indiana and 1st Source Bank, a [national] banking and financial
institution duly organized, existing and authorized to accept and execute trusts of the character
herein set out under the laws of the State of Indiana, with a corporate trust office in the City of
South Bend, Indiana, as Trustee ("Trustee");
WITNESSETH:
WHEREAS, Indiana Code, Title 36, Article 7, Chapters 11.9, -12, -14 and -25
(collectively, "Act"), authorize and empower the Issuer to issue revenue bonds and to lend the
proceeds therefrom for the purpose of financing economic development facilities and vests such
Issuer with powers that may be necessary to enable it to accomplish such purposes; and
WHEREAS, in accordance with the provisions of the Act, the Issuer has induced
RDistrict Two LLC, a limited liability company ('Developer"), to proceed with the reskinning
and restoration of Building 84 and other related improvements and expenses, if any, related
thereto of the hereinafter defined Studebaker Facilities ("Bond Project"), which is being
undertaken in connection with the remediation and rehabilitation of the former Studebaker
manufacturing facilities ("Studebaker Facilities"), in or physically connected to the hereinafter
defined Area, by offering to issue its Taxable Economic Development Revenue Bonds, Series
2017 (Studebaker Project) in the aggregate principal amount of $3,500,000 ("Series 2017
Bonds") pursuant to this Trust Indenture and the provisions of the Financing and Covenant
Agreement, dated as of June 1, 2017 ("Financing Agreement") for the purpose of paying costs of
the Bond Project; and
WHEREAS, the execution and delivery of this Indenture and the issuance of revenue
bonds under the Act as herein provided have been in all respects duly and validly authorized by
proceedings duly passed on and approved by the Issuer; and
WHEREAS, after giving notice in accordance with the Act and IC 5-3-1-4, the Issuer
held a public hearing, and upon finding that the Bond Project and the proposed financing thereof
will create additional employment opportunities in City of South Bend, Indiana; will benefit the
health, safety, morals, and general welfare of the citizens of the Issuer and the State of Indiana;
and will comply with the purposes and provisions of the Act, adopted an ordinance approving the
proposed financing; and
WHEREAS, the Act provides that such bonds may be secured by a trust indenture
between the Issuer and a corporate trustee; and
WHEREAS, the execution and delivery of this Trust Indenture ("Indenture"), and the
issuance of the Series 2017 Bonds hereunder have been in all respects duly and validly
authorized by an ordinance duly passed and approved by the Issuer; and
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WHEREAS, Indiana Code, Title 36, Article 7, Chapter 14 provides that a redevelopment
commission of a city may pledge certain incremental property taxes to pay, in whole or in part,
amounts due on the Series 2017 Bonds; and
WHEREAS, the Redevelopment Commission has by resolution irrevocably pledged TIF
Revenues (as hereinafter defined) to the Issuer, to the payment of principal on the Series 2017
Bonds; and
WHEREAS, the Issuer seeks to induce the Developer to complete the redevelopment and
renovation of the Bond Project as contemplated in the Plan by making the payment on the
principal on the Bonds from TIF Revenues pledged by the Redevelopment Commission for such
purpose in the aggregate amount of $3,500,000 which pledge is to be considered as a non-
shareholder contribution to the Developer under Internal Revenue Code ("Code") Section 118;
and
WHEREAS, pursuant to the Financing Agreement and this Indenture, principal on the
Series 2017 Bonds are payable solely and only out of: (i) TIF Revenues; and (ii) Bond proceeds
and proceeds of insurance; and
WHEREAS, the Series 2017 Bonds and the Trustee's certificate of authentication to be
endorsed thereon are all to be in substantially the following forms, and any Additional Bonds and
Trustee's certificate of authentication are also to be in substantially the following forms (except
as to redemption, sinking fund and other provisions peculiar to such Additional Bonds), with
necessary and appropriate variations, omissions and insertions as permitted or required by this
Indenture,to-wit:
(Form of Series 2017 Bond)
No. R-_
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF ST. JOSEPH
CITY OF SOUTH BEND, INDIANA
TAXABLE ECONOMIC DEVELOPMENT REVENUE BOND, SERIES 2017
(STUDEBAKER PROJECT)
INTEREST [MATURITY ORIGINAL AUTHENTICATION
RATE DATE] DATE DATE
REGISTERED OWNER: REGIONAL DEVELOPMENT AUTHORITY OF NORTHERN
INDIANA
PRINCIPAL AMOUNT: THREE MILLION FIVE HUNDRED THOUSAND DOLLARS
($3,500,000)
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The City of South Bend, Indiana ("Issuer"), a municipal corporation duly organized and
existing under the laws of the State of Indiana, for value received, hereby promises to pay in
lawful money of the United States of America to the Registered Owner listed above, but solely
from TIF Revenues (as defined in the hereinafter defined Indenture), pledged and assigned for
the payment hereof, up to the Principal Amount set forth above, or of so much of the Principal
Amount as shall have been advanced to the Developer (as defined below) and remains
outstanding, quarterly on January 1, April 1, July 1 and September 1 on the dates and in the
amounts as set forth on Exhibit A attached hereto, unless this Series 2017 Bond (as hereinafter
defined) shall have previously been called for redemption and payment of the redemption price
made or provided for herein. RDistrict Two LLC ("Developer") promises to pay interest on the
unpaid principal amount hereof at the interest rate per annum stated above from the interest
payment date to which interest has been paid next preceding the date of authentication of this
bond unless this bond is authenticated after the seventh day preceding an interest payment date
and on or before such interest payment date, in which case it shall bear interest from such interest
payment date, or unless this bond is authenticated on or before , 20_, in which
case it shall bear interest from the Original Date, until the principal advanced is paid in full,
which interest is payable quarterly on January 1, April 1, July 1 and September 1 of each year,
beginning on 1, 20_. Interest shall be calculated on an average daily balance basis.
The schedule of advances made is shown on Exhibit A.
Interest on this Series 2017 Bond is payable by check mailed one business day prior to
the interest payment date to the person in whose name this bond is registered on the seventh day
preceding such interest payment date. The principal of this Series 2017 Bonds is payable at the
corporate trust offices of 1st Source Bank, as Trustee, in the City of South Bend, Indiana, or at
the principal office of any successor trustee or paying agent. No presentation of this bond is
required for such payments made to the Registered Owner except that upon final payment, this
bond shall be returned to the Paying Agent for destruction. If the payment date occurs on a date
when financial institutions are not open for business, the wire transfer shall be made on the next
succeeding business day.
This Series 2017 Bond is the only one of an authorized issue of bonds of the Issuer
designated as the Taxable Economic Development Revenue Bonds, Series 2017 (Studebaker
Project) (hereinbefore and hereinafter the "Series 2017 Bonds") which are being issued under the
Indenture in the aggregate principal amount of$3,500,000. The Series 2017 Bonds are being
issued for the purpose of providing funds to finance a portion of the costs of the reskinning and
restoration of Building 84 and other related improvements and expenses, if any, of the
hereinafter defined Studebaker Facilities ("Bond Project"), in connection with the remediation
and rehabilitation of the former Studebaker manufacturing facilities ("Studebaker Facilities"), in
or physically connected to the River West Development Area.
The Series 2017 Bonds are issued under and entitled to the security of a Trust Indenture
dated as of June 1, 2017 ("Indenture") duly executed and delivered by the Issuer to 1 st Source
Bank, South Bend, Indiana, as Trustee (the term "Trustee" where used herein referring to the
Trustee or its successors), pursuant to which Indenture the TIF Revenues, and all rights of the
Issuer under the Indenture and the Financing and Covenant Agreement, dated as of June 1, 2017,
between the Developer and the Issuer ("Financing Agreement"), except certain rights to payment
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for expenses, indemnity rights and rights to perform certain discretionary acts as set forth in the
Financing Agreement, are pledged and assigned by the Issuer to the Trustee as security for the
Series 2017 Bonds. THE OWNER OF THIS BOND, BY ACCEPTANCE OF THIS SERIES
2017 BOND, HEREBY AGREES TO ALL OF THE TERMS AND PROVISIONS IN THE
INDENTURE AND THIS SERIES 2017 BOND AND ACKNOWLEDGES THAT:
1. It is a sophisticated investor and is familiar with securities such as the Bonds.
2. It is familiar with the Issuer; it has received such information concerning the
Issuer, the Series 2017 Bonds and the TIF Revenues as it deems to be necessary in connection
with investment in the Series 2017 Bonds. It has received, read and had an opportunity to
comment upon and has consented to the provisions of the Indenture, the Series 2017 Bonds and
the Financing Agreement. Prior to the purchase of the Series 2017 Bonds, it has been provided
with the opportunity to ask questions of and receive answers from the representatives of the
Issuer concerning the terms and conditions of the Series 2017 Bonds, the tax status of the Series
2017 Bonds, legal opinions and enforceability of remedies, the security therefor, and property tax
reform, and to obtain any additional information needed in order to verify the accuracy of the
information obtained to the extent that the Issuer possesses such information or can acquire it
without unreasonable effort or expense. We are not relying on Ice Miller LLP for information
concerning the financial status of the Issuer or the ability of the Issuer to honor its financial
obligations or other covenants under the Series 2017 Bonds, the Indenture or the Financing
Agreement.
3. It is acquiring the Series 2017 Bonds for its own account with no present intent to
resell; and will not sell, convey, pledge or otherwise transfer the Series 2017 Bonds without prior
compliance with applicable registration and disclosure requirements of state and federal
securities law.
4. It has investigated the security for the Series 2017 Bonds, including the
availability of TIF Revenues, to its satisfaction, and it understands that principal on the Series
2017 Bonds is payable solely from TIF Revenues. It further understands that the Issuer does not
have the power or the authority to levy a tax to pay the principal of or interest on the Series 2017
Bonds.
5. It understands that under current law the Issuer's collection of the TIF Revenues
may be limited by operation of IC 6-1.1-20.6, which provides taxpayers with a tax credit for all
property taxes attributable to difference classes of property in an amount that exceeds certain
percentages of the gross assessed value of that property. It understands that the Issuer may not
levy a property tax or borrow money to make up any shortfall due to the application of this tax
credit.
6. It recognizes that: (a) the opinions it has received express the professional
judgment of the attorneys participating in the transaction as to the legal issues addressed herein;
(b) by rendering such opinions, the attorneys do not become insurers or guarantors of (i) that
expression of professional judgment; (ii) the transaction opined upon; or (iii) the future
performance of parties to such transaction; and (c) the rendering of the opinions does not
guarantee the outcome of any legal dispute that may arise out of the transaction.
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7. It understands that the Issuer has no continuing disclosure obligation on the Series
2017 Bonds.
8. It understands that interest on the Series 2017 Bonds is taxable for federal income
tax purposes.
It is provided in the Indenture that the Issuer may hereafter issue Additional Bonds (as
defined in the Indenture) from time to time under certain terms and conditions contained therein.
(Such Additional Bonds and the Series 2017 Bonds are hereinafter collectively referred to as the
"Bonds.") Reference is made to the Indenture and to all indentures supplemental thereto and to
the Financing Agreement for a description of the nature and extent of the security, the rights,
duties and obligations of the Issuer and the Trustee, the rights of the holders of the Bonds, the
issuance of Additional Bonds and the terms on which the Bonds are or may be issued and
secured, and to all the provisions of which the holder hereof by the acceptance of this Series
2017 Bond assents.
The Series 2017 Bonds are issuable in registered form in the minimum denomination of
$100,000 and integral multiples of$1,000 thereafter. This Series 2017 Bond is transferable by
the registered holder hereof in person or by its attorney duly authorized in writing at the principal
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 Series 2017 Bond.
Upon such transfer a new registered Bond will be issued to the transferee in exchange therefor.
The Issuer, the Trustee and the Paying Agent may deem and treat the Registered Owner
hereof as the absolute owner hereof for the purpose of receiving payment of or on account of
principal hereof and premium, if any, and interest due hereon and for all other purposes and
neither the Issuer nor the Trustee nor the Paying Agent shall be affected by any notice to the
contrary.
If sufficient funds are on deposit in the Bond Fund pursuant to Section 5.1(a) of the
Indenture, the Series 2017 Bonds shall be subject to redemption prior to maturity at the option of
the Issuer on any date, upon seven (7) days' written notice, in whole or in part, in such order of
maturity as the Issuer shall direct and by lot within maturities on any date, from any moneys
made available for that purpose, at face value, with no premium, plus in each case accrued
interest to the date fixed for redemption.
If any of the Series 2017 Bonds are called for redemption as aforesaid, notice thereof
identifying the Series 2017 Bonds to be redeemed will be given by mailing a copy of the
redemption notice by first class mail not less than seven (7) days prior to the date fixed for
redemption to the Registered Owner of the Series 2017 Bonds to be redeemed at the address
shown on the registration books; provided, however, that failure to give such notice by mailing,
or any defect therein with respect to any registered Series 2017 Bond, shall not affect the validity
of any proceedings for the redemption of other Series 2017 Bonds.
All Series 2017 Bonds so called for redemption will cease to bear interest on the
specified redemption date, provided funds for their redemption are on deposit at the place of
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payment at that time, and shall no longer be protected by the Indenture and shall not be deemed
to be outstanding under the provisions of the Indenture.
This Series 2017 Bond is transferable by the Registered Owner hereof at the principal
corporate trust office of the Trustee upon surrender and cancellation of this Series 2017 Bond
and on presentation of a duly executed written instrument of transfer and thereupon a new Series
2017 Bond or Series 2017 Bonds of the same aggregate principal amount and maturity and in
authorized denominations will be issued to the transferee or transferees in exchange therefor,
subject to all of the terms herein.
The Series 2017 Bonds, and the interest payable thereon, do not and shall not represent or
constitute a debt of the Issuer within the meaning of the provisions of the constitution or statutes
of the State of Indiana or a pledge of the faith and credit of the Issuer. The Series 2017 Bonds,
as to both principal and interest, are not an obligation or liability of the State of Indiana, or of
any political subdivision or taxing authority thereof, but are a special limited obligation of the
Issuer and payable solely and only from the trust estate consisting of funds and accounts held
under the Indenture, TIF Revenues with respect to the payment of the principal thereof, pledged
and assigned for their payment in accordance with the Indenture ("Trust Estate"). Neither the
faith and credit nor the taxing power of the Issuer, the State of Indiana or any political
subdivision or taxing authority thereof is pledged to the payment of the principal of, or premium,
if any, on this Series 2017 Bond. The Series 2017 Bonds do not grant the owners or holders
thereof any right to have the Issuer, the State of Indiana or its General Assembly, or any political
subdivision or taxing authority of the State of Indiana, levy any taxes or appropriate any funds
for the payment of the principal of, or premium, if any, or the interest on this Series 2017 Bonds.
The Series 2017 Bonds do not grant the owners or holders thereof any right to have the Issuer,
the State of Indiana or its General Assembly, or any political subdivision or taxing authority of
the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of,
or premium, if any, or interest on the Series 2017 Bonds. No covenant or agreement contained in
the Series 2017 Bonds or the Indenture shall be deemed to be a covenant or agreement of the
Redevelopment Commission, the South Bend Economic Development Commission
("Commission"), the Issuer or of any member, director, officer, agent, attorney or employee of
the Redevelopment Commission, the Commission or the Issuer in his or her individual capacity,
and neither the Redevelopment Commission, the Commission, the Issuer nor any member,
director, officer, agent, attorney or employee of the Redevelopment Commission, the
Commission or the Issuer executing the Series 2017 Bonds shall be liable personally on the
Series 2017 Bonds or be subject to any personal liability or accountability by reason of the
issuance of the Series 2017 Bonds.
The holder of this Series 2017 Bond shall have no right to enforce the provisions of the
Indenture or to institute action to enforce the covenants therein, or to take any action with respect
to any event of default under the Indenture, or to institute, appear in or defend any suit or other
proceedings with respect thereto, except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the Indenture, the principal of all the
Bonds issued under the Indenture and then outstanding may become or may be declared due and
payable before the stated maturity thereof, together with interest accrued thereon. Modifications
or alterations of the Indenture, or of any supplements thereto, may be made to the extent and in
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the circumstances permitted by the Indenture. The Issuer's obligation to pay TIF Revenues shall
not be subject to acceleration.
It is hereby certified that all conditions, acts and things required to exist, happen and be
performed under the laws of the State of Indiana and under the Indenture precedent to and in the
issuance of this Series 2017 Bond, exist, have happened and have been performed, and that the
issuance, authentication and delivery of this Series 2017 Bond have been duly authorized by the
Issuer.
This Series 2017 Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of authentication
hereon shall have been duly executed by the Trustee.
IN WITNESS WHEREOF, the City of South Bend, Indiana, has caused this Series 2017
Bond to be executed in its name and on its behalf by the manual or facsimile signature of its
Mayor, countersigned by the Controller, and its corporate seal to be hereunto affixed manually or
by facsimile and attested to by the manual or facsimile signature of its Clerk all as of
, 2017.
CITY OF SOUTH BEND, INDIANA
Mayor
COUNTERSIGNED
Controller
Seal
Attest:
Clerk
RDISTRICT TWO, LLC an Indiana limited liability
company
Manager
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(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This Series 2017 Bond is the only one of the Series 2017 Bonds described in the within
mentioned Indenture.
1sT SOURCE BANK, Trustee
By:
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please Print or Typewrite Name and Address) the within
Series 2017 Bond and all rights, title and interest thereon, and hereby irrevocably constitutes and
appoints attorney to transfer the within Series 2017 Bond on
the books kept for registration thereof, with full power of substitution in the premises.
Dated:
SIGNATURE GUARANTEED:
NOTICE: Signature(s) must be guaranteed by NOTICE: The signature to this assignment
an eligible guarantor institution participating must correspond with the name of the
in a Securities Transfer Association registered owner as it appears upon the face
recognized signature guarantee program. of the within Series 2017 Bond in every
particular, without alteration or enlargement
or any change whatever.
The following abbreviations, when used in the inscription on the face of this certificate,
shall be construed as though they were written out in full according to applicable laws or
regulations:
UNIF TRAN MIN ACT-- Custodian
(Cust) (Minor)
under Uniform Transfers to Minors Act
(State)
TEN COM -- as tenants in common
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JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
[EXHIBIT A]
Schedule of Advances]
(End of Bond Form)
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to secure the
payment of the principal of and premium, if any, and interest on the Bonds to be issued under
this Indenture according to their tenor, purport and effect, and in order to secure the performance
and observance of all the covenants and conditions herein and in the Bonds contained, and in
order to declare the terms and conditions upon which the Bonds are issued, authenticated,
delivered, secured and accepted by all persons who shall from time to time be or become holders
thereof, and for and in consideration of the mutual covenants herein contained, of the acceptance
by the Trustee of the trust hereby created, and of the purchase and acceptance of the Bonds by
the holders or obligees thereof, the Issuer has executed and delivered this Indenture, and by these
presents does hereby convey, grant, assign, pledge and grant a security interest in, unto the
Trustee, its successor or successors and its or their assigns forever, with power of sale, all and
singular,the property hereinafter described("Trust Estate"):
GRANTING CLAUSE
All right, title and interest of the Issuer in and to the TIF Revenues with respect to the
payment of the principal on the Bonds (such pledge to be effective as set forth in IC 5-1-14-4 and
IC 36-7-14-39 without filing or recording of this Indenture or any other instrument), the
Financing Agreement (except the rights reserved to the Issuer) and all moneys and the Qualified
Investments held by the Trustee from time to time in the Funds and Accounts created hereunder;
TO HAVE AND TO HOLD the same unto the Trustee, and its successor or successors
and its or their assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth, to secure the
payment of the Bonds to be issued hereunder, and premium, if any, payable upon redemption or
prepayment thereof, and the interest payable thereon, and to secure also the observance and
performance of all the terms, provisions, covenants and conditions of this Indenture, and for the
benefit and security of all and singular the holders of all Bonds issued hereunder, and it is hereby
mutually covenanted and agreed that the terms and conditions upon which the Bonds are to be
issued, authenticated, delivered, secured and accepted by all persons who shall from time to time
be or become the holders thereof, and the trusts and conditions upon which the pledged moneys
and revenues are to be held and disbursed, are as follows:
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ARTICLE 1.
DEFINITIONS
Section 1.1. Terms Defined. In addition to the words and terms elsewhere defined in this
Indenture, the following words and terms as used in this Indenture shall have the following
meanings unless the context or use indicates another or different meaning or intent:
"Additional Bonds" shall have the meaning assigned in Section 2.8 of this Indenture.
"Allocation Area" means the River West Development Area Allocation Area No. 1.
"Area" means the River West Development Area.
"Authorized Representative" means, as to the Developer, any officer of the Developer or
any other person certified by an officer of the Developer to be such and as to the Issuer means
and as to the Bond Purchaser means
"Bond Project" means the reskinning and restoration of Building 84 and other related
improvements and expenses, if any, in connection with the remediation and rehabilitation of the
former Studebaker manufacturing facilities that are in or physically connected to the Area.
"Bond Purchaser" means Regional Development Authority of Northern Indiana.
"Bond Purchase Agreement" means the Bond Purchase Agreement, dated
, 2017,between the Issuer and the Bond Purchaser.
"Bonds" means any Bonds issued pursuant to this Indenture, including the Series 2017
Bonds.
"Business Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a day on
which commercial banks in New York, New York, or the city or cities in which the corporate
trust office of the Trustee or the Tender Agent are authorized or required by law to close or(iii)a
day on which the New York Stock Exchange or the federal reserve payment system is closed.
"Construction Fund" shall mean the Construction Fund established in Section 4.3 herein.
"Costs of Construction" means the categorical costs of providing for an "economic
development project" as defined and set forth in the Act:
(i) all costs and expenses which Issuer or Developer shall be required to pay,
under the terms of any contract or contracts (including the architectural and engineering,
development, and legal services with respect thereto), for materials, equipment and the
construction of the Bond Project; and
(ii) any sums required to reimburse Issuer or Developer for advances made by
either of them subsequent to the date of inducement by the Issuer for any of the above
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items or for any other costs incurred and for work done by either of them which are
properly chargeable to the Bond Project; and
"Developer" means RDistrict Two LLC, a limited liability company.
"Event of Default" means those events of default specified in and defined by Section 7.1
hereof.
"Fiscal Year" shall mean a period of twelve consecutive months constituting the fiscal
year of the Developer commencing on the first day of January of any year and ending on the last
day of December of such year, both inclusive, or such other period as hereafter may be
established from time to time for budgeting and accounting purposes by the Developer or by the
governing body of any successor entity to the Developer.
"Indenture" means this instrument as originally executed or as it may from time to time
be amended or supplemented pursuant to Article IX.
"Interest Payment Date" on the Bonds means each January 1, April 1, July 1 and
September 1, commencing 1, 20—.
"Issuer" means City of South Bend, Indiana, a municipality organized and validly
existing under the laws of the State of Indiana.
"Financing Agreement" means the Financing Agreement, dated as of June 1, 2017,
between the Developer and the Issuer and all amendments and supplements thereto.
"Opinion of Counsel" shall mean an opinion in writing signed b legal counsel who may
p
p g g Y g Y
e
be an employee of or counsel to the Developer and who shall b satisfactory to the Trustee in its
reasonable discretion.
"Outstanding" or "Bonds outstanding" means all Bonds which have been duly
authenticated, and delivered by the Trustee under this Indenture, except:
(a) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(b) Bonds for the redemption of which cash or investments (but only to the extent that
the full faith and credit of the United States of America are pledged to the timely payment
thereof) shall have been theretofore deposited with the Trustee (whether upon or prior to the
maturity or redemption date of any such Bonds); provided that if such Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given or arrangements
satisfactory to the Trustee shall have been made therefor, or waiver of such notice satisfactory in
form to the Trustee, shall have been filed with the Trustee; and
(c) Bonds in lieu of which others have been authenticated under Section 2.9.
"Paying Agent" means 1 st Source Bank and any successor paying agent or co-paying
agent.
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"Qualified Investments" shall have the meaning assigned in the Financing Agreement.
"Record Date" means the fifteenth day preceding any Interest Payment Date.
"Redevelopment Commission" means the South Bend Redevelopment Commission.
"Requisite Bondholders" means the holders of 66 2/3% in aggregate principal amount of
Bonds.
"Series 2017 Bonds" means City of South Bend, Indiana Taxable Economic
Development Revenue Bonds, Series 2017 (Studebaker Project) in the aggregate principal
amount of$3,500,000.
"Tax Increment" means all property taxes generated from the incremental assessed value
of real and depreciable personal property tax proceeds of designated taxpayers located in the
Allocation Area.
"TIF Pledge Resolution" means the resolution of the Redevelopment Commission
adopted on May 25, 2017,pledging TIF Revenues to the Issuer.
"TIF Revenues" means $3,500,000 of Tax Increment funds on hand generated in the
Allocation Area and currently held in the Allocation Fund (as described in the TIF Pledge
Resolution), which moneys are to be separated from all other moneys in said Fund as of the day
of closing and pledged to the Issuer for payment of the Bonds pursuant to the TIF Pledge
Resolution.
"Trust Estate" means the funds and accounts, TIF Revenues and other assets described in
the Granting Clause of this Indenture.
"Trustee" means 1st Source Bank, South Bend, Indiana the party of the second part
hereto, and any successor trustee or co-trustee.
"Trustee Fees" means the acceptance fee and annual fees of the Trustee.
Section 1.2. Rules of Interpretation. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) "This Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended pursuant to the applicable provisions hereof.
(b) All references in this instrument to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as
originally executed. The words "herein," "hereof' and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular and the singular as well as the plural.
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(d) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
(e) Any terms not defined herein but defined in the Financing Agreement shall have
the same meaning herein.
(f) The terms defined elsewhere in this Indenture shall have the meanings therein
prescribed for them.
(End of Article I)
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ARTICLE II.
THE BONDS
Section 2.1. Authorized Amount of Series 2017 Bonds. No Bonds may be issued under
the provisions of this Indenture except in accordance with this Article. The principal amount of
the Series 2017 Bonds (other than Bonds issued in substitution therefor pursuant to Section 2.9
hereof) that may be issued is hereby expressly limited to $3,500,000. Additional Bonds may be
issued as provided in Section 2.8 hereof.
Section 2.2. Issuance of Series 2017 Bonds. The Series 2017 Bonds shall be designated
"City of South Bend, Indiana Taxable Economic Development Revenue Bonds, Series 2017
(Studebaker Project)." The Series 2017 Bonds shall be originally issuable as fully registered
Series 2017 Bonds in minimum denominations of $100,000 and any $1,000 integral multiples
thereafter and shall be lettered and numbered R-1 and upward. Interest on the Series 2017 Bonds
shall be paid to the owners of such Series 2017 Bonds determined as of the close of business of
the Record Date next preceding each Interest Payment Date at the registered addresses of such
owners as they shall appear on the registration books of the Trustee notwithstanding the
cancellation of any such Series 2017 Bonds upon any exchange or transfer thereof subsequent to
the Record Date and prior to such Interest Payment Date, except that, if and to the extent that
there shall be a default in the payment of the interest due on such interest payment date, such
defaulted interest shall be paid to the owners in whose name any such Series 2017 Bonds (or any
Series 2017 Bond issued upon transfer or exchange thereof) are registered at the close of
business of the Record Date next preceding the date of payment of such defaulted interest.
Payment of interest to all Bondholders shall be by check drawn on the main office of the Paying
Agent and mailed to such Bondholder one business day prior to each Interest Payment Date. The
Series 2017 Bonds shall be dated as of the date of their delivery and shall accrue interest on each
advance from the date of that advance. Interest shall be computed on the basis of a 360 day year
consisting of twelve 30-day months. The interest on the Series 2017 Bonds shall be payable
quarterly on each January 1, April 1, July 1 and September 1, commencing on 1,
20
Proceeds of the Series 2017 Bonds shall be advanced from time to time as provided in
Section 4.3
The Series 2017 Bonds shall bear interest from the Interest Payment Date next preceding
the date of authentication thereof, unless such date of authentication shall be subsequent to a
Record Date in which case they shall bear interest from the Interest Payment Date with respect to
such Record Date, provided, however that if, as shown by the records of the Trustee, interest on
the Series 2017 Bonds shall be in default, Series 2017 Bonds issued in exchange for Series 2017
Bonds surrendered for transfer or exchange shall bear interest from the date to which interest has
been paid in full on the Series 2017 Bonds or, if no interest has been paid on the Series 2017
Bonds, from the date of issuance and delivery of the Series 2017 Bonds. The Series 2017 Bonds
authenticated on or prior to , 20_ shall bear interest from the date of delivery
of the Series 2017 Bonds.
The Series 2017 Bonds shall mature on July 1, 2018.
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Section 2.3. Payment on Bonds. The principal of and interest on the Bonds shall be
payable in any coin or currency of the United States of America which, at the respective dates of
payment thereof, is legal tender for the payment of public and private debts. The final payments
on the Series 2017 Bonds shall be payable at the corporate trust office of the Trustee, in South
Bend, Indiana. All other payments on the Series 2017 Bonds shall be made to the person
appearing on the Bond registration books of the Trustee as the registered owner of the Series
2017 Bonds by check mailed to the Registered Owner thereof as shown on the registration books
of the Trustee. Interest shall be calculated on the basis of a 360-day year consisting of twelve
30-day months.
Section 2.4. Execution; Limited Obligation. The Series 2017 Bonds shall be executed on
behalf of the Issuer with the manual or facsimile signature of its Mayor, countersigned by the
manual or facsimile signature of the Controller, and attested with the manual or the facsimile
signature of its Clerk and shall have impressed or printed thereon the corporate seal of the Issuer.
Such facsimiles shall have the same force and effect as if such officer had manually signed each
of the Series 2017 Bonds. If any officer whose signature or facsimile signature shall appear on
the Series 2017 Bonds shall cease to be such officer before the delivery of such Bonds, such
signature or such facsimile shall, nevertheless, be valid and sufficient for all purposes, the same
as if he had remained in office until delivery. The Series 2017 Bonds shall also be executed on
behalf of the Developer with the manual or facsimile signature of its manager.
The Series 2017 Bonds do not and shall not represent or constitute a debt of the Issuer,
the State of Indiana or any political subdivision or taxing authority thereof within the meaning of
the provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and
credit of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof.
The Series 2017 Bonds are not an obligation or liability of the State of Indiana, or of any
political subdivision or taxing authority thereof, but are a special limited obligation of the Issuer
and are payable solely and only from the trust estate consisting of funds and accounts held under
the Indenture and TIF Revenues with respect to the principal thereof pledged and assigned for
their payment in accordance with the Indenture ("Trust Estate"). Neither the faith and credit nor
the taxing power of the Issuer, the State of Indiana or any political subdivision or taxing
authority thereof is pledged to the payment of the principal of, or premium, if any, and interest
due on the Series 2017 Bond. The Series 2017 Bonds do not grant the owners or holders thereof
any right to have the Issuer, the State of Indiana or its General Assembly, or any political
subdivision or taxing authority of the State of Indiana, levy any taxes or appropriate any funds
for the payment of the principal of, or premium, if any, and interest due on the Series 2017
Bonds. No covenant or agreement contained in the Series 2017 Bonds or the Indenture shall be
deemed to be a covenant or agreement of the Redevelopment Commission, the South Bend
Economic Development Commission ("Commission"), the Issuer or of any member, director,
officer, agent, attorney or employee of the Redevelopment Commission, the Commission or the
Issuer in his or her individual capacity, and neither the Redevelopment Commission, the
Commission, the Issuer nor any member, director, officer, agent, attorney or employee of the
Redevelopment Commission, the Commission or the Issuer executing the Series 2017 Bonds
shall be liable personally on the Series 2017 Bonds or be subject to any personal liability or
accountability by reason of the issuance of the Series 2017 Bonds.
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Section 2.5. Authentication. No Series 2017 Bond shall be valid or obligatory for any
purpose or entitled to any security or benefit under this Indenture unless and until the certificate
of authentication on such Series 2017 Bond substantially in the form hereinabove set forth shall
have been duly executed by the Trustee, and such executed certificate of the Trustee upon any
such Bond shall be conclusive evidence that such Series 2017 Bond has been authenticated and
delivered under this Indenture. The Trustee's certificate of authentication on any Series 2017
Bond shall be deemed to have been executed by it if signed by an authorized officer of the
Trustee, but it shall not be necessary that the same officer sign the certificate of authentication on
all of the Series 2017 Bonds issued hereunder.
Section 2.6. Form of Bonds. The Bonds issued under this Indenture shall be
substantially in the form hereinabove set forth with such appropriate variations, omissions and
insertions as are permitted or required by this Indenture or deemed necessary by the Trustee.
Section 2.7. Delivery of Series 2017 Bonds. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver to the Trustee the Series 2017 Bonds in the
aggregate principal amount of $3,500,000. The Trustee shall authenticate such Bonds and
deliver them to the purchasers thereof upon receipt of-
(i) A copy, duly certified by the Clerk of the Issuer, of the ordinance adopted
and approved by the Issuer authorizing the execution and delivery of the
Financing Agreement and this Indenture and the issuance of the Series
2017 Bonds.
(ii) A copy, duly certified by the Secretary of the Redevelopment
Commission, of the resolution adopted and approved by the
Redevelopment Commission pledging the TIF Revenues to the payment of
the Series 2017 Bonds.
(iii) Executed counterparts of the Financing Agreement and Indenture.
(iv) A written request of the Issuer to the Trustee requesting the Trustee to
authenticate, or cause to be authenticated, and deliver the Series 2017
Bonds in the principal amount of$3,500,000,to the purchasers thereof.
(v) Such other documents as shall be required by the bond counsel.
The proceeds of the Series 2017 Bonds shall be paid over to the Trustee and deposited to
the credit of various Funds as hereinafter provided under Section 3.1 hereof.
Section 2.8. Issuance of Additional Bonds. One or more series of Bonds in addition to
the Series 2017 Bonds ("Additional Bonds"), may be authenticated and delivered from time to
time for one or more of the purposes of (i) refunding entirely one or more series of Bonds
outstanding hereunder, if such Bonds may otherwise be refunded, (ii) advance refunding entirely
one or more series of Bonds outstanding hereunder, regardless of whether such Bonds may
otherwise be refunded, if the same is then permitted by law by depositing with the Trustee, in
trust for the sole benefit of such series of Bonds, cash or investments (but only to the extent that
the full faith and credit of the United States of America are pledged to the timely payment
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1\11860514.2
thereof) in a principal amount which will, together with the income or increment to accrue
thereon, be sufficient to pay and redeem (when redeemable) and discharge such series of Bonds
at or before their respective maturity dates, and (iii) financing the cost or estimated cost of
completing the Bond Project or of acquiring and/or constructing additional improvements to the
Bond Project, and, in each case, obtaining additional funds to pay the costs to be incurred in
connection with the issuance of such Additional Bonds, to establish reserves with respect thereto
and to pay interest during the estimated construction period of completing the additional
improvements, if any.
Prior to the delivery by the Issuer of any such Additional Bonds there shall be filed with
the Trustee:
(i) A supplement to this Indenture executed by the Issuer and the Trustee
authorizing the issuance of such Additional Bonds, specifying the terms
thereof, and providing for the disposition of the proceeds of the sale
thereof.
(ii) The supplement or amendment to the Financing Agreement and the other
instruments, documents, certificates, and opinions referred to in Article IX
of this Indenture.
(iii) A copy, duly certified by the Clerk of the Issuer, of the Bond Ordinance
theretofore adopted and approved by the Issuer authorizing the execution
and delivery of such supplemental indenture and such supplement to the
Financing Agreement and the issuance of such Additional Bonds.
(iv) A written request of the Issuer to the Trustee to authenticate and deliver
such Additional Bonds.
(v) Additional Bonds payable from TIF Revenues, the requirements for such
additional obligations contained in the resolution or ordinance pledging
the TIF Revenues shall have been met.
Any Additional Bonds issued in accordance with the terms of this Section 2.8 shall be
secured by this Indenture, but such Additional Bonds may bear such date or dates, such interest
rate or rates, and with such maturities, redemption dates and premiums as may be agreed upon by
the Issuer, at the direction of the Developer, and the purchaser of such Additional Bonds.
Section 2.9. Mutilated Lost Stolen, or Destroyed Bonds. If any Series 2017 Bond is
mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee may authenticate a
new Series 2017 Bond of like date, maturity and denomination as that mutilated, lost, stolen or
destroyed; provided that, in the case of any mutilated Series 2017 Bond, such mutilated Series
2017 Bond shall first be surrendered to the Issuer, and in the case of any lost, stolen or destroyed
Series 2017 Bond, there shall be first furnished to the Trustee evidence of such loss, theft or
destruction satisfactory to the Trustee,together with indemnity satisfactory to it.
If any such Series 2017 Bond shall have matured, instead of issuing a duplicate Series
2017 Bond the Issuer may pay the same without surrender thereof; provided, however, that in the
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case of a lost, stolen or destroyed Series 2017 Bond, there shall be first furnished to the Trustee
evidence of such loss, theft or destruction satisfactory to the Trustee, together with indemnity
satisfactory to it. The Trustee may charge the holder or owner of such Series 2017 Bond with
their reasonable fees and expenses in this connection (including reasonable attorney's fees, costs
and expenses, if any). Any Series 2017 Bond issued pursuant to this Section 2.9 shall be deemed
part of the original series of Series 2017 Bonds in respect of which it was issued and an original
additional contractual obligation of the Issuer.
Section 2.10. Registration and Exchange of Series 2017 Bonds; Persons Treated as
Owners. The Issuer shall cause books for the registration and for the transfer of the Series 2017
Bonds as provided in this Indenture to be kept by the Trustee which is hereby constituted and
appointed the registrar of the Issuer. Upon surrender for transfer of any fully registered Series
2017 Bond at the principal office of the Trustee, duly endorsed by, or accompanied by a written
instrument or instruments of transfer in form satisfactory to the Trustee and duly executed by the
registered owner or his attorney duly authorized in writing, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or transferees a new fully
registered Series 2017 Bond or Series 2017 Bonds of the same series and the same maturity for a
like aggregate principal amount. The execution by the Issuer of any fully registered Series 2017
Bond without coupons of any denomination shall constitute full and due authorization of such
denomination, and the Trustee shall thereby be authorized to authenticate and deliver such
registered Series 2017 Bond. The Trustee shall not be required to transfer or exchange any fully
registered Series 2017 Bond during the period between the Record Date and any interest
payment date of such Series 2017 Bond, nor to transfer or exchange any Series 2017 Bond after
the mailing of notice calling such Bond for redemption has been made, nor during a period of
fifteen(15) days next preceding mailing of a notice of redemption of any Bonds.
As to any fully registered Series 2017 Bond, the person in whose name the same shall be
registered shall be deemed and regarded as the absolute owner thereof for all purposes, and
payment of principal or interest thereon, shall be made only to or upon the order of the registered
owner thereof or its legal representative, but such registration may be changed as hereinabove
provided. All such payments shall be valid and effectual to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid.
(End of Article II)
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ARTICLE III.
APPLICATION OF SERIES 2017 BOND PROCEEDS
Section 3.1. Deposit of Funds. The Issuer shall deposit with the Trustee in the
Construction Fund all proceeds from the sale of the Series 2017 Bonds on the date of each
advance. The initial deposit is $
(End of Article III)
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ARTICLE IV.
REVENUE AND FUNDS
Section 4.1. Source of Payment of Bonds. The Bonds herein authorized and all
payments to be made by the Issuer hereunder are not general obligations of the Issuer but are
limited obligations payable solely from the Trust Estate as authorized by the Act and as provided
herein. No covenant or agreement contained in the Bonds or this Indenture shall be deemed to
be a covenant or agreement of the Issuer or of any member, director, officer, agent, attorney or
employee of the Issuer in his or her individual capacity, and neither the Issuer nor any member,
director, officer, agent, attorney, or employee of the Issuer executing the Bonds shall be liable
personally on the Bonds or be subject to any personal liability or accountability by reason of the
issuance of the Bonds.
Section 4.2. Bond Fund. The Trustee shall establish and maintain, so long as any of the
Bonds are outstanding, a separate fund to be known as the "Bond Fund." Money in the Bond
Fund shall be applied as provided in this Section 4.2.
There shall be deposited in the Bond Fund, as and when received by the Trustee: (a) TIF
Revenues received as set forth in Section 4.4; (b) an amount equal to the interest due on the next
interest payment date pursuant to Section 4.5; (c) any amount remaining in the Construction
Fund to be transferred to the Bond Fund pursuant to the Indenture upon completion of the Bond
Project, if any; (d) all interest and other income derived from investments of Bond Fund moneys
as provided herein, if any; and (e) all other moneys received by the Trustee under and pursuant to
any of the provisions of the Financing Agreement which are required or which are accompanied
that such moneys are to be aid into the Bond Fund. The Issuer hereby
by written directions y p Y
covenants and agrees that so long as any of the Bonds issued hereunder are outstanding it will
deposit, or cause to be paid to Trustee for deposit in the Bond Fund for its account, sufficient TIF
Revenues promptly to meet and pay the principal due on the Bonds as the same becomes due and
payable. Nothing herein should be construed as requiring the Issuer to deposit or cause to be
paid to Trustee for deposit in the Bond Fund, funds from any source other than TIF Revenues.
The Controller of the Issuer shall account for separately and set aside, on the date of
closing of the Series 2017 Bonds, the TIF Revenues pledged and held in the Issuer's Allocation
Fund (as created by IC 36-7-14), and transfer the TIF Revenues to the Trustee for the payment of
the principal on the Bonds. The Trustee is hereby directed to deposit the TIF Revenues into the
Bond Fund in the manner prescribed in this Section 4.2 and in Section 4.4.
Moneys in the Bond Fund shall be used by the Trustee to pay principal on and interest of
the Bonds as they become due upon each principal and interest payment date, at maturity, upon
redemption or upon acceleration.
Section 4.3. Construction Fund. The Issuer shall establish with the Trustee a separate
fund to be known as the Construction Fund, to the credit of which the deposits are to be made as
required by Section 3.1 hereof.
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I\11860514.2
(a) On the issue date of the Bonds, the Issuer shall deposit $ in the
Construction Fund from the proceeds of the sale of the Bonds. The purchaser of the Series 2017
Bonds shall deposit subsequent advances with the Trustee from time to time as needed and the
advances shall be recorded on the Series 2017 Bonds and in the records of the Trustee.
(b) Moneys on deposit in the Construction Fund shall be paid out from time to time
by the Trustee to or upon the order of the Developer in order to pay, or as reimbursement to the
Developer for payment made, for the Costs of Construction, upon receipt by the Trustee of an
invoice showing the Costs of Construction and to whom payment is owed and a written request
signed by the Authorized Representative of the Developer, approved by the Authorized
Representatives of the Issuer and the Bond Purchaser:
(i) stating that the costs of an aggregate amount set forth in such written
request have been made or incurred and were necessary for the
construction of the Bond Project, and were made or incurred in accordance
with the construction contracts, plans and specifications, or purchase
contracts therefor then in effect;
(ii) stating that the amount paid or to be paid, as set forth in such written
request, is reasonable and represents a part of the amount payable for the
Costs of Construction of the Bond Project all in accordance with the cost
budget; and that such payment was not paid in advance of the time, if any,
fixed for payment and was made in accordance with the terms of any
contracts applicable thereto and in accordance with usual and customary
practice under existing conditions;
(iii) stating that no part of the such costs was included in any written request
previously filed with the Trustee under the provisions hereof;
(iv) stating that such costs are appropriate for the expenditure of proceeds of
the Bonds under the Act; and
(v) stating a recap of vendors and the amount paid and/or to be paid to each
and copies of invoices paid and/or to be paid with copies of checks.used
for any previously made payment and, if a vendor is an unincorporated
entity, the taxpayer identification number for such vendor.
For purposes of approval of a written request, the Trustee may rely on the signatures of the
Authorized Representatives of the Issuer and the Bond Purchaser.
(c) Completion Certificate. The Developer shall deliver to the Trustee and the Issuer
within fifteen (15) days after the construction of the Bond Project, a written completion
certificate:
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(i) stating that the Bond Project has been constructed and/or acquired,
delivered and installed on the Bond Project site and the date of completion;
(ii) stating that the Developer has made such investigation of such sources of
information as are deemed by the Developer to be necessary and is of the opinion that the
Bond Project has been fully paid for and that no claim or claims exist against the
Developer or the Issuer or against the properties of either out of which a lien based on
furnishing labor or material for the Bond Project exists or might ripen; provided,
however, there may be excepted from the foregoing statement any claim or claims out of
which a lien exists or might ripen in the event that the Developer or the Issuer intends to
contest such claim or claims, in which event such claim or claims shall be described;
provided, further, however, that it shall be stated that funds are on deposit in the
Construction Fund sufficient to make payment of the full amount which might in any
event be payable in order to satisfy such claim or claims.
If such certificate shall state that there is a claim or claims in controversy which create or
might ripen into a lien, there shall be filed with the Issuer and the Trustee a certificate of the
Developer or Issuer when and as such claim or claims shall have been fully paid.
(d) Disposition of Construction Fund Moneys After Completion. If, after payment by
the Trustee of all orders theretofore tendered to the Trustee under the provisions of subparagraph
(a) of this Section 4.3 and after receipt by the Trustee of the completion certificate mentioned in
subparagraph (c) of this Section 4.3, there shall remain any balance of moneys in the
Construction Fund, the Trustee shall transfer all moneys then in the corresponding account
(except moneys reserved to pay any disputed claims described in the completion certificate
required in Section 4.3(c) hereof) to the Bond Fund. The Trustee, as directed in writing by the
Developer, shall use any amount transferred to the Bond Fund from the 2017 Bonds, to redeem
the 2017 Bonds pursuant to Section 5.1(b)hereof at the earliest redemption date.
Section 4.4. TIF Revenues. (a) Seven (7) days prior to each January 1, April 1, July 1
and September 1, commencing 1, 20 , the Issuer shall deposit with the Trustee an
amount of TIF Revenues sufficient to pay, after taking into account amounts on deposit in the
Bond Fund, the principal due on the next quarterly payment date which principal amount due
shall equal, but not exceed, the total amount of construction advances made as of the seventh day
prior to each quarterly payment date. The Issuer hereby covenants and agrees that so long as any
of the Bonds issued hereunder are outstanding, it will transfer to the Trustee for deposit in the
Bond Fund, a sufficient amount of TIF Revenues promptly to meet and pay the principal of the
Bonds as the same becomes due and payable. Nothing herein should be construed as requiring
Issuer to deposit or cause to be paid to Trustee for deposit in the Bond Fund, funds from any
source other than the TIF Revenues.
Section 4.5. Interest Payments. Seven (7) days prior to each January 1, April 1, July 1
and September 1, the Trustee shall calculate the amount of interest due on the next quarterly
payment date and notify the Developer of the amount due immediately thereafter. Developer
shall pay the amount of the interest due to the Trustee one (1) Business Day prior to the quarterly
payment due date.
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Section 4.6. Trust Funds. All moneys and securities received by the Trustee under the
provisions of this Indenture, shall be trust funds under the terms hereof and shall not be subject
to lien or attachment of any creditor of the Issuer or of the Developer. Such moneys shall be
held in trust and applied in accordance with the provisions of this Indenture.
Section 4.7. Investment. Moneys on deposit in the Funds established in this Article IV
hereof shall be invested as provided in Section 6.7 hereof.
(End of Article IV)
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ARTICLE V.
REDEMPTION OF SERIES 2017 BONDS BEFORE MATURITY
Section 5.1. Redemption Dates and Prices. (a) Optional Redemption. The Series 2017
Bonds are subject to optional redemption by the Issuer at the direction of the Developer, prior to
maturity on any date, upon seven (7) days' notice, in whole or in part, in such order of maturity
as the Issuer shall direct in writing and by lot within maturities, at face value, without premium,
plus in each case accrued interest to the date fixed for redemption.
(b) Mandatory Redemption. If funds are on deposit in the Bond Fund in excess of
amounts necessary to pay principal due on the next succeeding payment date, the Issuer shall
direct the Trustee in writing to use such amounts on the earliest date possible following such
payment date to redeem Series 2017 Bonds, in whole or in part, at 100% of the principal amount
thereof without premium.
So long as the Series 2017 Bonds are held by the Bond Purchaser, the Series 2017 Bonds
do not need to be presented for payment upon mandatory sinking fund redemption.
Section 5.2. Notice of Redemption. In the case of redemption of Series 2017 Bonds
pursuant to Section 5.1 hereof, notice of the call for any such redemption identifying the Series
2017 Bonds, or portions of fully registered Series 2017 Bonds, to be redeemed shall be given by
mailing a copy of the redemption notice by first class mail not less than seven (7) days prior to
the date fixed for redemption to the registered Owner of each Series 2017 Bond to be redeemed
at the address shown on the registration books. Such notice of redemption shall specify the
CUSIP number, if applicable, and, in the event of a partial redemption the Series 2017 Bond
numbers and called amounts of each Series 2017 Bond, the redemption date, redemption price,
interest rate, maturity date and the name and address of the Trustee and the Paying Agent;
provided, however, that failure to give such notice by mailing, or any defect therein, with respect
to any such registered Series 2017 Bond shall not affect the validity of any proceedings for the
redemption of other Series 2017 Bonds.
On and after the redemption date specified in the aforesaid notice, such Series 2017
Bonds, or portions thereof, thus called shall not bear interest, shall no longer be protected by this
Indenture and shall not be deemed to be outstanding under the provisions of this Indenture, and
the holders thereof shall have the right only to receive the redemption price thereof,plus accrued
interest thereon to the date fixed for redemption.
Notice of any redemption hereunder required to be given to the Owners with respect to
Series 2017 Bonds held under a book entry system shall be given by the Trustee only to the
Depository, or its nominee, as the Holder of such Series 2017 Bonds.
Section 5.3. Cancellation. All Series 2017 Bonds which have been redeemed in whole
shall be canceled and cremated or otherwise destroyed by the Trustee and shall not be reissued
and a counterpart of the certificate of cremation or other destruction evidencing such cremation
or other destruction shall be furnished by the Trustee to the Issuer and the Developer.
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1111860514.2
Section 5.4. Redemption Payments. Prior to the date fixed for redemption in whole,
funds shall be deposited with Trustee to pay, and Trustee is hereby authorized and directed to
apply such funds to the payment of the Series 2017 Bonds or portions thereof called, together
with accrued interest thereon to the redemption date. Upon the giving of notice and the deposit
of funds for redemption, interest on the Series 2017 Bonds thus called shall no longer accrue
after the date fixed for redemption. No payment shall be made by the Paying Agent upon any
Series 2017 Bond until such Series 2017 Bond shall have been delivered for payment or
cancellation or the Trustee shall have received the items required by Section 2.9 hereof with
respect to any mutilated, lost, stolen or destroyed Series 2017 Bond.
Section 5.5. Partial Redemption of Bonds. If fewer than all of the Series 2017 Bonds at
the time outstanding are to be called for redemption, the maturities of Series 2017 Bonds or
portions thereof to be redeemed shall be selected by the Trustee at the written direction of the
Developer. If fewer than all of the Series 2017 Bonds within a maturity are to be redeemed, the
Trustee shall select by lot (meaning also random selection by computer) in such manner as the
Trustee, in its discretion, may determine, the Series 2017 Bonds or portions of Series 2017
Bonds within such maturity that shall be redeemed. The Trustee shall call for redemption in
accordance with the foregoing provisions as many Series 2017 Bonds or portions thereof as will,
as nearly as practicable, exhaust the moneys available therefor. Particular Series 2017 Bonds or
portions thereof shall be redeemed in part only in $1,000 denominations and any integral
multiples thereof.
If less than the entire principal amount of any registered Series 2017 Bond then
outstanding is called for redemption, then upon notice of redemption given as provided in
Section 5.2 hereof,the Owner of such registered Series 2017 Bond shall forthwith surrender such
Series 2017 Bond to the Paying Agent in exchange for (a) payment of the redemption price of,
and (b) a new Series 2017 Bond or Series 2017 Bonds of like series in an aggregate principal
amount equal to the unredeemed balance of the principal amount of such registered Series 2017
Bond,which shall be issued without charge therefor.
(End of Article V)
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ARTICLE VI.
GENERAL COVENANTS
Section 6.1. Payment of Principal. The Issuer covenants that it will promptly pay the
principal of every Bond issued under this Indenture at the place, on the dates and in the manner
provided herein and in the Bonds according to the true intent and meaning thereof. The principal
on the Bonds is payable solely and only from the TIF Revenues which payments are hereby
specifically pledged and assigned to the payment thereof in the manner and to the extent herein
specified, and nothing in the Bonds or in this Indenture should be considered as pledging any
other funds or assets of the Issuer. The Issuer bears no responsibility with respect to the payment
of the interest on the Bonds which shall be paid solely by the Developer as set forth in Section
4.5 hereof. The Bonds do not and shall not represent or constitute a debt of the Issuer within the
meaning of the provisions of the constitution or statutes of the State of Indiana or a pledge of the
faith and credit of the Issuer. The Bonds are not an obligation or liability of the State of Indiana,
or of any political subdivision or taxing authority thereof, but are a special limited obligation of
the Issuer and are payable solely and only from TIF Revenues. Neither the faith and credit nor
the taxing power of the Issuer, the State of Indiana or any political subdivision or taxing
authority thereof is pledged to the payment of the principal of, or premium, if any, and interest
on the Bonds. The Bonds do not grant the owners or holders thereof any right to have the Issuer,
the State of Indiana or its General Assembly, or any political subdivision or taxing authority of
the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of,
or premium, if any, and interest on the Bonds. The Issuer has no taxing power with respect to
the Bonds. No covenant or agreement contained in the Bonds or this Indenture shall be deemed
to be a covenant or agreement of the Redevelopment Commission,the Commission,the Issuer or
of any member, director, officer, agent, attorney or employee of the Redevelopment
Commission, the Commission or the Issuer in his or her individual capacity, and neither the
Redevelopment Commission, the Commission, the Issuer nor any member, director, officer,
agent, attorney or employee of the Redevelopment Commission, the Commission or the Issuer
executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability
or accountability by reason of the issuance of the Bonds.
Section 6.2. Performance of Covenants. The Issuer covenants that it will faithfully
perform at all times any and all covenants, undertakings, stipulations and provisions contained in
this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all
proceedings of its members pertaining thereto. The Issuer represents that it is duly authorized
under the constitution and laws of the State of Indiana to issue the Bonds authorized hereby and
to execute this Indenture, and to pledge the TIF Revenues in the manner and to the extent herein
set forth; that all action on its part for the issuance of the Bonds and the execution and delivery
of this Indenture has been duly and effectively taken, and that the Bonds in the hands of the
holders and owners thereof are and will be valid and enforceable obligations of the Issuer
according to the import thereof, subject to bankruptcy, insolvency, reorganization, moratorium
and other similar laws, judicial decisions and principles of equity relating to or affecting
creditors' rights generally and subject to the valid exercise of the constitutional powers of the
Issuer,the State of Indiana and the United States of America.
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Section 6.3. Filing of Indenture Financing Agreement and Security Instruments. The
Issuer, upon the written direction and at the sole expense of the Developer, shall cause this
Indenture, the Financing Agreement and all supplements thereto as well as such other security
instruments, financing statements and all supplements thereto and other instruments as may be
required from time to time to be filed in such manner and in such places as may be required by
law in order to fully preserve and protect the lien hereof and the security of the holders and
owners of the Bonds and the rights of the Trustee hereunder. This Section 6.3 shall impose no
duty to record or file the instruments noted above where filing or recordation is not required by
law in order to perfect a security interest. Continuation of financing statements may be filed
without consent of the debtor parties thereto.
Section 6.4. Inspection of Books. The Issuer covenants and agrees that all books and
documents in its possession relating to the Bond Project and the revenues derived from the Bond
Project shall at all times be open to inspection by such accountants or other agents as the Trustee
may from time to time designate.
Section 6.5. List of Bondholders. The Trustee will keep on file at the principal office of
the Trustee a list of names and addresses of the holders of all Bonds. At reasonable times and
under reasonable regulations established by the Trustee, said list may be inspected and copied by
the Developer or by holders and/or owners (or a designated representative thereof) of 25% or
more in principal amount of Bonds then outstanding, such ownership and the authority of any
such designated representative to be evidenced to the satisfaction of the Trustee.
Section 6.6. Rights Under Financing Agreement. The Issuer agrees that the Trustee in its
name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the
Developer under and pursuant to the Financing Agreement for and on behalf of the Bondholders,
whether or not the Issuer is in default hereunder.
Section 6.7. Investment of Funds. Moneys in the Funds established hereunder may be
invested at the written direction of the Issuer in Qualified Investments to the extent and in the
manner provided for in Section 3.8 of the Financing Agreement. The Trustee shall not be liable
or responsible for any loss resulting from any such investment. The interest accruing thereon
and any profit realized from such investments shall be credited, and any loss resulting from such
investments shall be charged to the fund in which the money was deposited.
Section 6.8. Non-presentment of Bonds. If any Bond shall not be presented for payment
when the principal thereof becomes due, either at maturity, or at the date fixed for redemption
thereof, or otherwise, if funds sufficient to pay any such Bond shall have been made available to
Paying Agent for the benefit of the holder or holders thereof, all liability of Issuer to the holder
thereof for the payment of such Bond shall forthwith cease, determine and be completely
discharged, and thereupon it shall be the duty of Paying Agent to hold such funds for five (5)
years without liability for interest thereon, for the benefit of the holder of such Bond, who shall
thereafter be restricted exclusively to such funds, for any claim of whatever nature on his part
under this Indenture or on, or with respect to, such Bond.
Any moneys so deposited with and held by the Paying Agent not so applied to the
payment of Bonds within five (5) years after the date on which the same shall become due shall
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1\1 1860514.2
be repaid by Paying Agent to the Developer and thereafter Bondholders shall be entitled to look
only to the Developer for payment, and then only to the extent of the amount so repaid, and the
Developer shall not be regarded as a trustee of such money.
Section 6.9. Direction of Bondholders. Whenever any action, direction or consent is
required of the Trustee, the Trustee shall consult with the holders of the Bonds and shall take
such action, give such direction or give such consent as shall be directed in writing by the
Requisite Bondholders.
(End of Article VI)
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ARTICLE VII.
DEFAULTS AND REMEDIES
Section 7.1. Events of Default. Each of the following events is hereby declared an
"event of default," that is to say, if:
(a) payment of any amount payable on the Bonds shall not be made when the same is
due and payable; or
(b) any event of default as defined in Section 5.1 of the Financing Agreement shall
occur and be continuing; or
(c) the Issuer shall default in the due and punctual performance of any other of the
covenants, conditions, agreements and provisions contained in the Bonds or in this Indenture or
any agreement supplemental hereof on the part of the Issuer to be performed, and such default
shall continue for thirty (30) days after written notice specifying such default and requiring the
same to be remedied shall have been given to the Issuer and the Developer by the Trustee.
(d) the Issuer shall fail to apply pledged TIF Revenues as required by Article IV of
this Indenture.
Section 7.2. Reserved.
Section 7.3. Remedies; Rights of Bondholders. (a) If an event of default occurs, the
Trustee may pursue any available remedy by suit at law or in equity to enforce the payment of
the principal of, and premium, if any, and interest on the Bonds then outstanding, to enforce any
obligations of the Issuer hereunder and of the Developer under the Financing Agreement.
(b) Upon the occurrence of an event of default, and if directed in writing so to do by
the Requisite Bondholders and indemnified as provided in Section 8.1 hereof, the Trustee shall
be obliged to exercise such one or more of the rights and powers conferred by this Article as the
Trustee,being advised by counsel, shall deem most expedient in the interests of the Bondholders.
(c) No remedy by the terms of this Indenture conferred upon or reserved to the
Trustee (or to the Bondholders) is intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in addition to any other remedy given to the
Trustee or to the Bondholders hereunder or now or hereafter existing at law or in equity or by
statute.
(d) No delay or omission to exercise any right or power accruing upon any event of
default shall impair any such right or power or shall be construed to be a waiver of any event of
default or acquiescence therein, and every such right and power may be exercised from time to
time as may be deemed expedient.
(e) No waiver of any event of default hereunder, whether by the Trustee or by the
Bondholders, shall extend to or shall affect any subsequent event of default or shall impair any
rights or remedies consequent thereon.
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I\11860514.2
Section 7.4. Right of Bondholders to Direct Proceedings. Anything in this Indenture to
the contrary notwithstanding, the holders of all Bonds then outstanding shall have the right, at
any time, by an instrument or instruments in writing executed and delivered to the Trustee, to
direct the time, the method and place of conducting all proceedings to be taken in connection
with the enforcement of the terms and conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder; provided, that such direction shall not be otherwise
than in accordance with the provisions of law and of this Indenture, and provided that the Trustee
is obligated to pursue its remedies under the provisions of Section 7.3 hereof before any other
remedies are sought.
Section 7.5. Application of Moneys. All moneys received by the Trustee pursuant to any
right given or action taken under the provisions of this Article shall, after payment of the cost
and expenses of the proceedings resulting in the collection of such moneys and of the fee of and
the expenses, liabilities and advances incurred or made by the Trustee or the Issuer including
reasonable attorney's fees, costs and expenses, if any, be deposited in the Bond Fund and all
moneys in the Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds shall have become or shall have been
declared due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled thereto of all installments of interest
then due on the Bonds, in the order of the maturity of the installments of such interest,
and if the amount available shall not be sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts due on such installment, to the
persons entitled thereto, without any discriminations or privilege; and
Second: To the payment to the persons entitled thereto of the unpaid principal of
and premium, if any, of the Bonds which shall have become due (other than Bonds called
for redemption for the payment of which moneys are held pursuant to the provisions of
this Indenture), in the order of their due dates, with interest on such Bonds from the
respective dates upon which they become due, and if the amount available shall not be
sufficient to pay in full Bonds due on any particular date,together with such interest,then
to the payment ratably, according to the amount of principal due on such date, to the
persons entitled thereto without any discrimination or privilege.
Third: To the payment of the balance, if any,to the Developer or its successors or
assigns, upon the written request of the Developer, except for any remaining TIF
Revenues which shall be paid to the Issuer, or to whomsoever may be lawfully entitled to
receive the same upon its written request, or as any court of competent jurisdiction may
direct.
(b) If the principal of all the Bonds shall have become due or shall have been
declared due and payable, all such moneys shall be applied to the payment of the principal then
due and unpaid upon the Bonds, to the persons entitled thereto without any discrimination or
privilege.
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1\11860514.2
(c) If the principal of all the Bonds shall have been declared due and payable, and if
such declaration shall thereafter have been rescinded and annulled under the provisions of this
Article then, subject to the provisions of subsection (b) of this Section in the event that the
principal of all the Bonds shall later become due or be declared due and payable, the moneys
shall be applied in accordance with the provisions of subsection(a) of this Section.
Whenever moneys are to be applied pursuant to the provisions of this Section, such
moneys shall be applied at such times, and from time to time, as the Trustee shall determine,
having due regard to the amount of such moneys available for application and the likelihood of
additional moneys becoming available for such application in the future. Whenever the Trustee
shall apply such funds, it shall fix the date (which shall be an interest payment date unless it shall
deem another date more suitable) upon which such application is to be made. The Trustee shall
give such notice as it may deem appropriate of the deposit with it of any such moneys and of the
fixing of any such date and shall not be required to make payment to the holder of any Bond
until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation
if fully paid.
Section 7.6. Remedies Vested In Trustee. All rights of action (including the right to file
proof of claims) under this Indenture or under any of the Bonds may be enforced by the Trustee
without the possession of any of the Bonds or the production thereof in any trial or other
proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any
holders of the Bonds, and any recovery of judgment shall, subject to the provisions of
Section 7.5 hereof, be for the equal benefit of the holders of the outstanding Bonds. When the
Trustee incurs costs or expenses (including reasonable attorney's fees, costs or expenses) or
renders services after the occurrence of an Event of Default, such costs and expenses and the
compensation for such services are intended to constitute expenses of administration under any
federal or state bankruptcy, insolvency, arrangement, moratorium, reorganization or other debtor
relief law.
Section 7.7. Rights and Remedies of Bondholders. No holder of any Bond shall have
any right to institute any suit, action or proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust thereof or for the appointment of a receiver or any
other remedy hereunder, unless a default has occurred of which the Trustee has been notified as
provided in subsection (g) of Section 8.1, or of which by said subsection it is deemed to have
notice, nor unless also such default shall have become an event of default and the holders of all
Bonds then outstanding shall have made written request to the Trustee and shall have offered
reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, nor unless also they have offered to the
Trustee indemnity as provided in Section 8.1 hereof,nor unless the Trustee shall thereafter fail or
refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding
in its, his, or their own name or names. Such notification, request and offer of indemnity are
hereby declared in every case at the option of the Trustee to be conditions precedent to the
execution of the powers and trusts of this Indenture, and to any action or cause of action for the
enforcement of this Indenture, or for the appointment of a receiver or for any other remedy
hereunder; it being understood and intended that no one or more holders of the Bonds shall have
any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by
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its, his or their action or to enforce any right hereunder except in the manner herein provided,
and that all proceedings at law or in equity shall be instituted, had and maintained in the manner
herein provided and for the equal benefit of the holders of all Bonds then outstanding. Nothing
in this Indenture contained shall, however, affect or impair the right of any Bondholder to
enforce the covenants of the Issuer to pay the principal of and interest on each of the Bonds
issued hereunder to the respective holders thereof at the time, place, from the source and in the
manner in said Bonds expressed.
Section 7.8. Termination of Proceedings. In case the Trustee shall have proceeded to
enforce any right under this Indenture by the appointment of a receiver, or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Issuer, the Developer and the Trustee shall
be restored to their former positions and rights hereunder, respectively, with respect to the Trust
Estate, and all rights, remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.
Section 7.9. Waivers of Events of Default. The Trustee may in its discretion waive any
event of default hereunder and its consequences and rescind any declaration of maturity of
principal of the Bonds, and shall do so upon the written request of the holders of (1) all the
Bonds then outstanding in respect of which default in the payment of principal and/or premium,
if any, and interest or (2) all Bonds then outstanding in the case of any other default; provided,
however, that there shall not be waived any event of default in the payment of the principal of
any outstanding Bonds at the date of maturity specified therein, and all expenses of the Trustee
in connection with such default shall have been paid or provided for, and in case of any such
waiver or rescission, or in case any proceeding taken by the Trustee on account of any such
default shall have been discontinued or abandoned or determined adversely, then and in every
such case the Issuer, the Trustee and the Bondholders shall be restored to their former positions
and rights hereunder, respectively, but no such waiver or rescission shall extend to any
subsequent or other default, or impair any right consequent thereon.
(End of Article VII)
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ARTICLE VIII.
THE TRUSTEE AND PAYING AGENT
Section 8.1. Acceptance of the Trusts. The Trustee, prior to the occurrence of an event
of default and after the curing of all events of default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations should be read into this Indenture against the Trustee.
The Trustee agrees to perform such trusts only upon and subject to the following
expressed terms and conditions:
(a) The Trustee may execute any of the trusts or powers hereof and perform any of its
duties by or if appointed through attorneys, agents, receivers or employees but shall not be
answerable for the conduct of the same in accordance with the standard specified above, and
shall be entitled to advice of counsel concerning all matters of trusts hereof and the duties
hereunder, and may in all cases pay such reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in connection with the trusts hereof.
The Trustee may act upon the opinion or advice of any attorney (who may be the attorney or
attorneys for the Issuer or the Developer). The Trustee shall not be responsible for any loss or
damage resulting from any action or non-action in good faith in reliance upon such opinion or
advice.
(b) The Trustee shall not be responsible for any recital herein, or in the Bonds (except
in respect to the certificate of the Trustee endorsed on the Bonds), or for insuring the property
herein conveyed or collecting any insurance moneys, or for the validity of the execution by the
Issuer of this Indenture or of any supplements thereto or instruments of further assurance, or for
the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby,
or for the value or title of the property herein conveyed or otherwise as to the maintenance of the
security hereof; and the Trustee shall not be bound to ascertain or inquire as to the performance
or observance of any covenants, conditions or agreements on the part of the Issuer or on the part
of the Developer under the Financing Agreement; but the Trustee may require of the Issuer or the
Developer full information and advice as to the performance of the covenants, conditions and
agreements aforesaid as to the condition of the property herein conveyed. The Trustee shall have
no obligation to perform any of the duties of the Issuer under the Financing Agreement, and the
Trustee shall not be responsible or liable for any loss suffered in connection with any investment
of funds made by it in accordance with the provisions of this Indenture.
(c) The Trustee shall not be accountable for the use of any Bonds authenticated by it
or the Paying Agent or delivered hereunder. The Trustee may become the owner of Bonds
secured hereby with the same rights which it would have if not Trustee.
(d) The Trustee may conclusively rely upon, shall be fully protected in acting upon
any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or
document believed to be genuine and correct and to have been signed or sent by the proper
person or persons. Any action taken by the Trustee pursuant to this Indenture upon the request
or authority or consent of any person who at the time of making such request or giving such
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authority or consent is the owner of any Bond, shall be conclusive and binding upon all future
owners of the same Bond and upon Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, the Trustee shall be entitled to conclusively rely upon a
certificate signed on behalf of the Issuer or the Developer by its duly authorized officers as
sufficient evidence of the facts therein contained and prior to the occurrence of a default of
which the Trustee has been notified as provided in subsection (g) of this Section, or of which
said subsection it is deemed to have notice, shall also be at liberty to accept a similar certificate
to the effect that any particular dealing, transaction or action is necessary or expedient, but may
at its discretion secure such further evidence deemed necessary or advisable, but shall in no case
be bound to secure the same. The Trustee may accept a certificate of the Issuer or the Developer
under its seal to the effect that an ordinance or resolution in the form therein set forth has been
adopted by the Issuer or the Developer as conclusive evidence that such ordinance or resolution
has been duly adopted, and is in full force and effect.
(f) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other than its gross
negligence or willful misconduct; provided, however, that the provisions of this subsection shall
not affect the duties of the Trustee hereunder, including the provisions of Article VII hereof.
(g) The Trustee shall not be required to take notice or be deemed to have notice of
any event of default hereunder (other than payment of the principal on the Bonds) unless the
Trustee shall be specifically notified in writing of such default by the Issuer or by the holders of
at least twenty-five percent (25%) in aggregate principal amount of all Bonds then outstanding
and all notices or other instruments required by this Indenture to be delivered to the Trustee
must, in order to be effective, be delivered at the principal corporate trust office of the Trustee,
and in the absence of such notice so delivered, the Trustee may conclusively assume there is no
default except as aforesaid.
(h) The Trustee shall not be personally liable for any debts contracted or for damages
to persons or to personal property injured or damaged, or for salaries or nonfulfillment of
contracts during any period in which it may be in possession of or managing the Trust Estate.
(i) At any and all reasonable times and upon reasonable prior written notice, the
Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right fully to inspect the Trust Estate, and to take such memoranda
from and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond or surety in respect of the
execution of the said trusts and powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall
have the right, but shall not be required, to demand, in respect of the authentication of any
Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within
the purview of this Indenture, any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in addition to that by the terms hereof
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Section 8.7. Removal of the Trustee. The Trustee may be removed at any time by an
instrument or concurrent instruments in writing delivered to the Trustee and to the Issuer and
signed by all the Bondholders.
Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary Trustee.
In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall
be taken under control of any public officer or officers, or of a receiver appointed by a court, a
successor may be appointed by the owners of a majority in aggregate principal amount of Bonds
then outstanding, by an instrument or concurrent instruments in writing signed by such owners,
or by their attorneys-in-fact, duly authorized; provided, nevertheless, that in case of such
vacancy, the Issuer, by an instrument executed by one of its duly authorized officers, may
appoint a temporary Trustee to fill such vacancy until a successor Trustee shall be appointed by
the Bondholders in the manner above provided; and any such temporary Trustee so appointed by
the Issuer shall immediately and without further act be superseded by the Trustee so appointed
by such Bondholders. Every such Trustee appointed pursuant to the provisions of this Section
shall be a trust company or bank, having a reported capital and surplus of not less than One
Hundred Million Dollars ($100,000,000) if there be such an institution willing, qualified and able
to accept the trust upon reasonable or customary terms.
Section 8.9. Concerning AU Successor Trustees. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer and the
Developer an instrument in writing accepting such appointment hereunder, and thereupon such
successor, without any further act, deed or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Issuer, or of its successor, execute
and deliver an instrument transferring to such successor Trustee all the estates, properties, rights,
powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all
securities and moneys held by it as Trustee hereunder to its successor. Should any instrument in
writing from the Issuer be required by any successor Trustee for more fully and certainly vesting
in such successor the estate, rights, powers and duties hereby vested or intended to be vested in
the predecessor any and all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. The resignation of any Trustee and the instrument or
instruments removing any Trustee and appointing a successor hereunder, together with all other
instruments provided for in this Article shall be filed by the successor Trustee in each office, if
any, where the Indenture shall have been filed.
Section 8.10. Trustee Protected in Relying Upon Resolutions, etc. Subject to the
conditions contained herein, the resolutions, ordinances, opinions, certificates and other
instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence
of the facts and conclusions stated therein and shall be full warrant, protection and authority to
the Trustee for the release of property and the withdrawal of cash hereunder.
Section 8.11. Appointment of Pang Agent and Registrar; Resignation or Removal of
Paying Agent. 1 st Source Bank is hereby appointed "Paying Agent" under this Indenture. Any
Paying Agent may at any time resign and be discharged of the duties and obligations created by
this instrument and any supplemental indenture by giving at least 30 days' written notice to the
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Issuer, the Developer and the Trustee. Any Paying Agent may be removed at any time by an
instrument, filed with such Paying Agent and the Trustee and signed by the Issuer and the
Developer. Any successor Paying Agent shall be appointed by the Issuer at the direction of the
Developer and shall be a bank or trust company duly organized under the laws of any state of the
United States or a national banking association, in each case having a capital stock and surplus
aggregating at least $100,000,000, willing and able to accept the office on reasonable and
customary terms and authorized by law to perform all the duties imposed upon it by this
Indenture.
In the event of the resignation or removal of any Paying Agent, such Paying Agent shall
pay over, assign and deliver any moneys or securities held by it as Paying Agent to its
successors, or if there is no successor, to the Trustee.
(End of Article VIII)
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ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders. The
Issuer and the Trustee may without the consent of, or notice to, any of the Bondholders, enter
into an indenture or indentures supplemental to this Indenture, as shall not be inconsistent with
the terms and provisions hereof, for any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of the Bondholders any
additional rights, remedies, powers or authority that may lawfully be granted to or conferred
upon the Bondholders or the Trustee or any of them;
(c) To subject to this Indenture additional security, revenues,properties or collateral;
(d) To make any other change in this Indenture which, in the judgment of the Trustee,
which may be based on advice of Counsel, is not to the material prejudice of the Trustee, the
Developer,the Issuer or the holders of the Bonds;
(e) To modify, amend or supplement the Indenture in such manner as required to
permit the qualification thereof under the Trust Indenture Act of 1939, as amended, or any
similar Federal statute hereafter in effect, and, if they so determine, to add to the Indenture such
other terms, conditions and provisions as may be required by said Trust Indenture Act of 1939,
as amended, or similar federal statute; or
(f) To issue Additional Bonds in accordance with the provisions of Section 2.8
hereof.
Section 9.2. Supplemental Indentures Requiring Consent of Bondholders. Exclusive of
supplemental indentures covered by Section 9.1 hereof, and subject to the terms and provisions
contained in this Section, and not otherwise, the Requisite Bondholders shall have the right, from
time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to
and approve the execution by the Issuer and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by the Issuer for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental indenture; provided however, that
nothing in this section contained shall permit or be construed as permitting (except as otherwise
permitted in this Indenture) (a) an extension of the stated maturity or reduction in the principal
amount of, or reduction in the rate or extension of the time of paying of interest on, or reduction
of any premium payable on the redemption of, any Bonds, without the consent of the holder of
such Bond, or (b) a reduction in the amount or extension of the time of any payment required by
any sinking fund applicable to any Bonds without the consent of the holders of all the Bonds
which would be affected by the action to be taken, or (c) the creation of any lien prior to or on a
parity with the lien of this Indenture without the consent of the holders of all the Bonds at the
time outstanding, or (d) a reduction in the aforesaid aggregate principal amount of Bonds the
holders of which are required to consent to any such supplemental indenture, without the consent
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of the holders of all the Bonds at the time outstanding which would be affected by the action to
be taken, or (e) a modification of the rights, duties or immunities of the Trustee, without the
written consent of the Trustee, or(f) a privilege or priority of any Bond over any other Bonds, or
(g) the deprivation of the Owners of any Series 2017 Bonds then Outstanding of the lien thereby
created.
Anything herein to the contrary notwithstanding, a supplemental indenture under this
Article which affects any rights of the Developer shall not become effective unless and until the
Developer shall have consented in writing to the execution and delivery of such supplemental
indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery
of any such supplemental indenture together with a copy of the proposed supplemental indenture
to be mailed by certified or registered mail to the Developer at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental indenture.
Section 9.3. Opinion of Counsel. Prior to executing any amendment or supplement to
this Indenture, the Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment or supplement is authorized or permitted pursuant to
the terms of this Indenture.
(End of Article IX)
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ARTICLE X.
AMENDMENTS TO THE FINANCING AGREEMENT
Section 10.1. Amendments, etc., to Financing Agreement Not Requiring Consent of
Bondholders. The Issuer and the Trustee with the consent of the Developer shall, without the
consent of or notice to the Bondholders, consent to any amendment, change or modification of
the Financing Agreement as may be required (i) by the provisions of the Financing Agreement
and this Indenture, or (ii) for the purpose of curing any ambiguity or formal defect or omission,
or (iii) in connection with any other change therein which, in the judgment of the Trustee, which
may be based on advice of Counsel, is not to the prejudice of the Trustee, the Issuer or the
Bondholders.
Section 10.2. Amendments, etc., to Financing Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications as provided in Section 10.1
hereof, neither the Issuer nor the Trustee shall consent to any other amendment, change or
modification of the Financing Agreement without the written approval or consent of the
Requisite Bondholders given and procured as in Section 9.2 provided.
Section 10.3. Opinion of Counsel. Prior to consenting to any amendment, change or
modification to the Financing Agreement, the Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel to the effect that such amendment, change or
modification is authorized or permitted pursuant to the terms of this Indenture.
(End of Article X)
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ARTICLE XI.
MISCELLANEOUS
Section 11.1. Satisfaction and Discharge. All rights and obligations of the Issuer and the
Developer under the Financing Agreement and this Indenture shall terminate, and such
instruments shall cease to be of further effect, and the Trustee shall execute and deliver all
appropriate instruments evidencing and acknowledging the satisfaction of this Indenture, and
shall assign and deliver to the Developer any moneys and investments in all Funds established
hereunder (except moneys or investments held by the Trustee for the payment of principal of and
interest on the Bonds and except for any TIF Revenues which shall be delivered to the Issuer)
when
(a) all fees and expenses of the Trustee and the Paying Agent shall have been paid
including reasonable attorney's fees, costs and expenses, if any;
(b) the Issuer and the Developer shall have performed all of their covenants and
promises in the Financing Agreement and in this Indenture; and
(c) all Bonds theretofore authenticated and delivered (i) have become due and
payable, or (ii) are to be retired or called for redemption under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee at the expense of the Developer, or
(iii) have been delivered to the Trustee canceled or for cancellation; and, in the case of(i) and (ii)
above, there shall have been deposited with the Trustee either cash in an amount which shall be
sufficient, or investments (but only to the extent that the full faith and credit of the United States
of America are pledged to the timely payment thereof) the principal of which when due will
provide moneys which, together with the moneys, if any, deposited with the Trustee, shall be
sufficient, to pay when due the principal due and to become due on the Bonds and interest due
and prior to the redemption date or maturity date thereof, as the case may be;
Provided, however, none of the Bonds may be advance refunded if such advance
refunding is not permitted by the laws of Indiana.
Section 11.2. Defeasance of Bonds. Any Bond shall be deemed to be paid and no longer
Outstanding within the meaning of this Article and for all purposes of this Indenture when (a)
payment of the principal of and interest on such Bond either (i) shall have been made or caused
to be made in accordance with the terms thereof, or (ii) shall have been provided for by
irrevocably depositing with the Trustee in trust and irrevocably set aside exclusively for such
payment, (1) moneys sufficient to make such payment or (2) direct obligations of or obligations
the principal of and interest on which are unconditionally guaranteed by the United States of
America("Governmental Obligations") maturing as to principal and interest in such amounts and
at such times as will insure the availability of sufficient moneys to make such payment, together
with either (A) a verification report of an independent certified public accountant to the effect
that such securities and/or cash,together with earnings thereon, will be sufficient to pay principal
(and applicable premium, if any) and interest on the Bonds to redemption or maturity or (B) an
opinion of Counsel satisfactory to the Trustee to the effect that all conditions precedent to the
defeasance of the Bonds have been complied with; provided however, that no such verification
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report or opinion shall be necessary in the event of a gross defeasance (where the cash deposited
alone is sufficient to pay the debt service on the Bonds) or a current refunding (where the Bonds
are to be redeemed within ninety (90) days of the funding of the escrow) and (b) all necessary
and proper fees, compensation, indemnities and expenses of the Trustee and the Issuer pertaining
to the Bonds with respect to which such deposit is made shall have been paid or the payment
thereof provided for including reasonable attorney's fees, costs and expenses, if any. At such
time as a Bond shall be deemed to be paid hereunder, as aforesaid, such Bond shall no longer be
secured by or entitled to the benefits of this Indenture, except for the purposes of any such
payment from such moneys or Governmental Obligations.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the immediately
preceding paragraph shall be deemed payment of such Bonds as aforesaid until (a) proper notice
of redemption of such Bonds shall have been previously given in accordance with Section 5.2 of
this Indenture, or if the Bonds are not by their terms subject to redemption within the next
succeeding sixty (60) days, until the Developer shall have given the Trustee in form satisfactory
to the Trustee irrevocable instructions to notify, as soon as practicable, the Bondholders, that the
deposit required by the preceding paragraph has been made with the Trustee and that the Bonds
are deemed to have been paid in accordance with this Section 11.2 and stating the maturity or
redemption date upon which moneys are to be available for the payment of the principal of and
the applicable redemption premium, if any, and interest on the Bonds; or(b)the maturity of such
Bonds.
All moneys so deposited with the Trustee as provided in this Section 11.2 may also be
invested and reinvested, at the written direction of the Developer, in Governmental Obligations,
maturing in the amounts and at the times as hereinbefore set forth, and all income from all
Governmental Obligations in the hands of the Trustee pursuant to this Section 11.2 which is not
required for the payment of principal of the Bonds and interest and premium, if any,thereon with
respect to which such moneys shall have been so deposited shall be deposited in the Bond Fund
as and when realized and collected for use and application as are other moneys deposited in the
Bond Fund.
Notwithstanding any provision of any other Article of this Indenture which may be
contrary to the provisions of this Section 11.2, all moneys or Governmental Obligations set aside
and held in trust pursuant to the provisions of this Section 11.2 for the payment of Bonds
(including premium thereon, if any) shall be applied to and used solely for the payment of the
particular Bonds (including the premium thereon, if any) with respect to which such moneys or
Governmental Obligations have been so set aside in trust.
Anything in Article 9 hereof to the contrary notwithstanding, if moneys or Governmental
obligations have been deposited or set aside with the Trustee pursuant to this Section 11.2 for the
payment of Bonds and such Bonds shall not have in fact been actually paid in full, no
amendment to the provisions of this Section 11.2 shall be made without the consent of the Owner
of each Bond affected thereby.
The right to register the transfer of or to exchange Bonds shall survive the discharge of
this Indenture.
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Section 11.3. Cancellation of Series 2017 Bonds. If the Bondholders of any Series 2017
Bonds presents that Bond to the Trustee with an instrument satisfactory to the Trustee waiving
all claims for payment of that Bond, the Trustee shall cancel that Series 2017 Bond and the
Bondholder shall have no further claim against the Trust Estate, the Issuer or the Developer with
respect to that Series 2017 Bond.
Section 11.4. Application of Trust Money. All money or investments deposited with or
held by the Trustee pursuant to Section 11.1 shall be held in trust for the holders of the Bonds,
and applied by it, in accordance with the provisions of the Bonds and this Indenture, to the
payment, either directly or through the Paying Agent, to the persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money or obligations need not be segregated from other funds except
to the extent required by law.
Section 11.5. Consents, etc., of Bondholders. Any consent, request, direction, approval,
objection or other instrument required by this Indenture to be executed by the Bondholders may
be in any number of concurrent writings of similar tenor and may be executed by such
Bondholders in person or by agent appointed in writing. Provided, however, that wherever this
Indenture or the Financing Agreement requires that any such consent or other action be taken by
the holders of a specified percentage, fraction or majority of the Bonds outstanding, any such
Bonds held by or for the account of the following persons shall not be deemed to be outstanding
hereunder for the purpose of determining whether such requirement has been met: the Issuer,
any of its members. For all other purposes, Bonds held by or for the account of such person shall
be deemed to be outstanding hereunder. Proof of the execution of any such consent, request,
direction, approval, objection or other instrument or of the writing appointing any such agent and
of the ownership of Bonds, if made in the following manner, shall be sufficient for any of the
purposes of this Indenture, and shall be conclusive in favor of the Trustee with regard to any
action taken under such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such writing may be
proved by the certificate of any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing such writing acknowledged
before him the execution thereof, or by affidavit of any witness to such execution.
(b) The fact of the holding by any person of Bonds transferable by delivery and the
amounts and numbers of such Bonds, and the date of the holding of the same, may be proved by
a certificate executed by any trust company, bank or bankers, wherever situated, stating that at
the date thereof the party named therein did exhibit to an officer of such trust company or bank
or to such banker, as the property of such party, the Bonds therein mentioned if such certificate
shall be deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require
evidence that such Bonds have been deposited with a bank, bankers or trust company, before
taking any action based on such ownership. In lieu of the foregoing, the Trustee may accept
other proofs of the foregoing as it shall deem appropriate.
For all purposes of this Indenture and of the proceedings for the enforcement hereof, such
person shall be deemed to continue to be the holder of such Bond until the Trustee shall have
received notice in writing to the contrary.
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Section 11.6. Limitation of Rights. With the exception of rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Indenture, or the Bonds
is intended or shall be construed to give to any person other than the parties hereto, and the
Developer, and the holders of the Bonds, any legal or equitable right, remedy or claim under or
in respect to this Indenture or any covenants, conditions and provisions herein contained, this
Indenture and all of the covenants, conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and the Developer and the holders of
the Bonds as herein provided.
Section 11.7. Severability. If any provision of this Indenture shall be held or deemed to
be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any
other provision or provisions hereof or any constitution or statute or rule of public policy, or for
any other reason, such circumstances shall not have the effect of rendering the provision in
question inoperative or unenforceable in any other case or circumstance, or of rendering any
other provision or provisions herein contained invalid, inoperative, or unenforceable to any
extent whatever.
The invalidity of any one or more phrases, sentences, clauses or Sections in this Indenture
contained, shall not affect the remaining portions of this Indenture, or any part thereof.
Section 11.8. Notices. All notices, demands, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when mailed by registered or
certified mail, postage prepaid, with proper address as indicated below. The Issuer, the
Developer, and the Trustee may, by written notice given by each to the others, designate any
address or addresses to which notices, demands, certificates or other communications to them
shall be sent when required as contemplated by this Indenture. Until otherwise provided by the
respective parties, all notices, demands, certificates and communications to each of them shall be
addressed as provided in Section 9.4 of the Financing Agreement.
Section 11.9. Counterparts. This Indenture may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 11.10. Applicable Law. This Indenture shall be governed exclusively by the
applicable laws of the State of Indiana without regard to conflict of law principles.
Section 11.11. Immunity of Officers and Directors. No recourse shall be had for the
payment of the principal of or premium on any of the Bonds or for any claim based thereon or
upon any obligation, covenant or agreement in this Indenture contained against any past, present
or future members, officer, directors, agents, attorneys or employees of the Issuer, or any
incorporator, member, officer, director, agents, attorneys, employees or trustee of any successor
corporation, as such, either directly or through the Issuer or any successor corporation, under any
rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty
or otherwise, and all such liability of any such incorporator, members, officers, directors, agents,
attorneys, employees or trustees as such is hereby expressly waived and released as a condition
of and consideration for the execution of this Indenture and issuance of such Bonds.
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Section 11.12. Holiday If any date for the payment of principal or interest on the
Bonds is not a Business Day then such payment shall be due on the first Business Day thereafter.
Section 11.13. Section 118 Nonshareholder Contribution. The Developer shall treat and
report the TIF Revenues paid by the Issuer in the aggregate amount of $3,500,000 as a non-
shareholder contribution from the Issuer to the Developer under Code Section 118
("Nonshareholder Contribution").
Section 11.14. Section 118 Tax Accounting. The Developer shall cause the tax balance
sheet of the Developer to reflect a reduction in basis attributed to the exclusion of the
Nonshareholder Contribution from taxable income under Code Section 118 as required under
Code Section 362. In no event shall the Developer take any depreciation deductions attributable
to the Nonshareholder Contribution at any time.
(End of Article XI)
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IN WITNESS WHEREOF, City of South Bend, Indiana, has caused these presents to be
signed in its name and behalf by its Mayor, and its corporate seal to be hereunto affixed and
attested by its Controller, and to evidence its acceptance of the trusts hereby created, 1st Source
Bank, in South Bend, Indiana has caused these presents to be signed in its name and behalf by,
its official seal to be hereunto affixed, and the same to be attested by, its duly authorized officers,
all as of the day and year first above written.
CITY OF SOUTH BEND, INDIANA
Mayor
Attest:
Controller
SEAL
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I\11860514.2
11T SOURCE BANK, as Trustee
By
(Written Signature)
(Printed Signature)
Attest:
(Written Signature)
(Printed Signature)
SEAL
This instrument prepared by Lisa A. Lee, Ice Miller LLP, One American Square, Suite 2900,
Indianapolis,Indiana 46282
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I\11860514.2
ICE MILLER LLP
DRAFT FOR DISCUSSION
PURPOSES ONLY
May 3,2017
FINANCING AND COVENANT AGREEMENT
BETWEEN
RDISTRICT TWO LLC
AND
CITY OF SOUTH BEND, INDIANA
Dated as of June 1, 2017
The rights of the Issuer hereunder have been assigned to I st Source Bank, South Bend,
Indiana, as Trustee under a Trust Indenture dated as of the date hereof from the Issuer.
I\11853148.2
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND EXHIBITS.....................................................................3
Section 1.1. Terms Defined..................................................................................................3
Section 1.2. Rules of Interpretation......................................................................................6
Section1.3. Exhibits.............................................................................................................6
ARTICLE 1I. REPRESENTATIONS .....................................................................................7
Section 2.1. Representations by Issuer.................................................................................7
Section 2.2. Representations by Developer..........................................................................7
Section 2.3. Financing of Series 2017 Bond Proceeds by Issuer..........................................8
ARTICLE III. PARTICULAR COVENANTS OF THE DEVELOPER.................................9
Section 3.1. Consent to Assignments to Trustee..................................................................9
Section 3.2. General Covenants............................................................................................9
Section 3.3. Continuing Existence and Qualification;Assignment, Sale or Other
Dispositionof Facilities....................................................................................9
Section 3.4. Developer Duties Under Indenture.................................................................10
Section 3.5. Assignment, Sale or Other Disposition of Project..........................................10
Section 3.6. Trustee's Right to Perform Developer's Covenants; Advances......................10
Section3.7. Indemnity........................................................................................................10
Section 3.8. Funding of Indenture Funds; Investments......................................................10
Section 3.9. Completion of Project.....................................................................................11
Section 3.10. Sale, Substitution, or Lease of the Project......................................................1 l
Section 3.11. Section 118 Nonshareholder Contribution.....................................................11
Section 3.12. Section 118 Tax Accounting ..........................................................................12
ARTICLE IV. APPLICATION OF SERIES 2017 BOND PROCEEDS...............................13
Section 4.1. Use of 2017 Bond Proceeds by Issuer............................................................13
Section 4.2. Use of TIF Revenues......................................................................................13
Section 4.3. Estoppel Certificate ........................................................................................13
ARTICLE V. EVENTS OF DEFAULT................................................................................14
Section 5.1. Events of Default............................................................................................14
Section 5.2. Remedies Cumulative.....................................................................................15
Section 5.3. Delay or Omission Not a Waiver....................................................................15
Section5.4. Reserved .........................................................................................................15
Section 5.5. Remedies Subject to Provisions of Law.........................................................15
Section 5.6. Waiver of Events of Default...........................................................................15
ARTICLEVI. IMMUNITY ...................................................................................................16
Section6.1. Immunity.........................................................................................................16
ARTICLE VII. SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING
AGREEMENT................................................................................................17
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Section 7.1. Supplements and Amendments to this Financing Agreement........................17
ARTICLE VIII. DEFEASANCE ..............................................................................................18
Section 8.1. Defeasance......................................................................................................18
ARTICLE IX. MISCELLANEOUS PROVISIONS ..............................................................19
Section 9.1. Financing Agreement for Benefit of Parties Hereto.......................................19
Section 9.2. Severability.....................................................................................................19
Section 9.3. Limitation on Interest .....................................................................................19
Section 9.4. Addresses for Notice and Demands................................................................19
Section 9.5. Successors and Assigns ..................................................................................20
Section 9.6. Counterparts..........................
Section 9.7. Governing Law...............................................................................................20
1\1 1853148.2
FINANCING AND COVENANT AGREEMENT
This is a FINANCING AND COVENANT AGREEMENT dated as of June 1, 2017
("Financing Agreement") between RDISTRICT TWO LLC, a limited liability company
organized, existing and authorized to do business under the laws of the State of Indiana
("Developer"), and the CITY OF SOUTH BEND, INDIANA ("Issuer"), a municipal corporation
duly organized and validly existing under the laws of the State of Indiana.
PRELIMINARY STATEMENT
Indiana Code, Title 36, Article 7, Chapters 11.9, -12, -14 and -25 (collectively, "Act") has
been enacted by the General Assembly of Indiana.
The Act provides that an Issuer may, pursuant to the Act, issue revenue bonds for the
purpose of financing costs of economic development facilities, for diversification of economic
development and promotion of job opportunities in or near the Issuer and vests the Issuer with
powers that may be necessary to enable it to accomplish such purposes.
WHEREAS, the South Bend ("City") Redevelopment Commission ("Redevelopment
Commission") adopted a declaratory resolution on February 23, 1990 establishing the Airport
Economic Development Area and the Airport Economic Development Area Allocation Area No.
1 ("1990 Declaratory Resolution"), which was effective as of that date and was confirmed by a
confirmatory resolution adopted on June 27, 1990 ("1990 Confirmatory Resolution").
WHEREAS, the Redevelopment Commission adopted a declaratory resolution on
April 16, 1993 establishing the Sample-Ewing Development Area and the Sample-Ewing
Allocation Area (South Bend Allocation Area No. 8) ("1993 Declaratory Resolution"), which
was effective as of that date and was confirmed by a confirmatory resolution adopted on May 21,
1993 ("1993 Confirmatory Resolution").
WHEREAS, the 1990 Declaratory Resolution, the 1990 Confirmatory Resolution, the
1993 Declaratory Resolution and the 1993 Confirmatory Resolution are hereinafter collectively
referred to as the "Original Declaratory Resolution".
WHEREAS, the Redevelopment Commission on June 19, 2007, adopted an amending
declaratory resolution, as further amended on August 28, 2014 (collectively, as amended,
"Amending Declaratory Resolution"), as confirmed by an amending confirmatory resolution
adopted on July 20, 2007, as further amended on November 10, 2014 (collectively, "Amending
Confirmatory Resolution"), consolidating, expanding and renaming the consolidated and
expanded area the River West Development Area ("Area"), as an economic development area
under IC 36-7-14 and IC 36-7-25.
WHEREAS, the Original Declaratory Resolution, the Amending Declaratory Resolution
and the Amending Confirmatory Resolution are hereinafter collectively referred to as the "Area
Resolution".
WHEREAS, the Area Resolution approved the economic development plan, as amended
("Plan") for the Area which Plan contained specific recommendations for economic development
in the Area, and the Area Resolution consolidated, expanded and renamed the consolidated and
I\11853148.2
expanded allocation area the River West Development Area Allocation Area No. 1 in accordance
with IC 36-7-14-39 ("Allocation Area") for the purpose of capturing property taxes generated
from the incremental assessed value of real and depreciable personal property located in the
Allocation Area("Tax Increment").
WHEREAS, the Issuer seeks to induce the Developer to complete the redevelopment and
renovation of the Project (as hereinafter defined) as contemplated in the Plan by making the
payment of the principal on the Bonds from TIF Revenues in the aggregate amount of
$3,500,000 which have been pledged by the Redevelopment Commission for such purpose and
such pledge is to be considered as a non-shareholder contribution to the Developer under Internal
Revenue Code ("Code") Section 118.
Upon finding that the Project and the proposed financing of the construction of a portion
thereof will create additional employment opportunities in the City of South Bend, Indiana
("City"); will benefit the health, safety, morals and general welfare of the citizens of the City and
the State of Indiana; and will comply with the purposes and provisions of the Act, the Issuer
adopted an ordinance approving the proposed financing.
The Issuer intends to issue its Taxable Economic Development Revenue Bonds, Series
2017 (Studebaker Project) ("Series 2017 Bonds") in the aggregate principal amount of
$3,500,000 pursuant to the Trust Indenture dated as of June 1, 2017 ("Indenture") from the Issuer
to 1st Source Bank, South Bend, Indiana, as Trustee ("Trustee") and intends to provide the
proceeds of the Series 2017 Bonds pursuant to the provisions of this Financing Agreement to the
Developer to finance a portion of the construction of the Project, in or physically connected to
the Area.
This Financing Agreement provides for the payment by the Redevelopment Commission
of the principal on the Series 2017 Bonds from TIF Revenues (as hereinafter defined).
Subject to the further provisions of this Financing Agreement, the principal on the Series
2017 Bonds will be payable solely out of TIF Revenues.
In consideration of the premises, the use of the proceeds of the Series 2017 Bonds and of
other good and valuable consideration, the receipt whereof is hereby acknowledged, the
Developer has executed and delivered this Financing Agreement.
This Financing Agreement is executed upon the express condition that if the Developer
shall keep, perform and observe all and singular the covenants and promises expressed in this
Financing Agreement to be kept, performed and observed by the Developer, then this Financing
Agreement and the rights hereby granted shall cease, determine and be void; otherwise to remain
in full force and effect.
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ARTICLE I.
DEFINITIONS AND EXHIBITS
Section 1.1. Terms Defined. As used in this Financing Agreement,the following terms
shall have the following meanings unless the context clearly otherwise requires:
"Act" means, collectively, Indiana Code 36-7-11.9, -12, -14 and -25 and any successor
provisions of the Indiana Code or successor codes.
"Allocation Area" means the River West Development Area Allocation Area No. 1.
"Area" means the River West Development Area.
"Authorized Representative" means, as to the Developer, any officer of the Developer or
any other person certified by an officer of the Developer to be such and means any person so
designated by resolution of the Common Council as to the Issuer.
"Bond Counsel" means a nationally recognized firm of municipal bond attorneys
acceptable to the Trustee.
"Bond Fund" means the Bond Fund established by Section 4.2 of the Indenture.
"Bond Year" means each twelve month period ending on any bond payment date.
"Bondholder" or any similar term means the registered owner of a Bond.
"Bonds" means the Series 2017 Bonds and any other bonds issued under the Indenture.
"Business Day" means any day other than a Saturday, Sunday or holiday on which
commercial banks in the city in which the principal office of the Trustee is located are open for
conducting substantially all of its banking activities.
"Commission" means the South Bend Economic Development Commission.
"Completion Date" means the date of delivery by the Developer to the Trustee of the
certificate required by Section 4.3(c)of the Indenture, evidencing the completion of the Project.
"Construction Fund" means the Construction Fund established in Section 4.3 of the
Indenture.
"Costs of Construction" means the categorical costs of providing for an "economic
development project" as defined and set forth in the Act as follows:
(i) all costs and expenses which Issuer or Developer shall be required to pay,
under the terms of any contract or contracts (including the architectural and engineering,
development, and legal services with respect thereto), for materials, equipment and the
construction of the Project; and
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(ii) any sums required to reimburse Issuer or Developer for advances made by
either of them subsequent to the date of inducement by the Issuer for any of the above
items or for any other costs incurred and for work done by either of them which are
properly chargeable to the Project.
"Developer" means RDistrict Two LLC, a limited liability company duly organized,
existing and authorized to do business under the laws of the State of Indiana, or any successors
thereto permitted under Section 3.3 hereof.
"Government Obligations" means direct obligations of, or obligations the timely payment
of the principal of and the interest on which are fully and unconditionally guaranteed by, the
United States of America.
"Indenture" means the Trust Indenture dated as of June 1, 2017, between the Issuer and
the Trustee and all amendments and supplements thereto.
"Issuer" means the City of South Bend, Indiana, a municipality duly organized and
validly existing under the laws of the State.
"Net Proceeds," when used with respect to any insurance or condemnation award, means
the gross proceeds from the insurance or condemnation award remaining after payment of all
expenses (including attorneys' fees and expenses and any expenses of the Trustee or the Issuer)
incurred in the collection of such gross proceeds.
"Outstanding" or "Bonds Outstanding" means Bonds which have been duly authenticated
and delivered by the Trustee under the Indenture, except:
(i) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(ii) Bonds for the redemption of which cash or investments (but only to the extent that
the full faith and credit of the United States of America are pledged to the timely payment
thereof) shall have been theretofore deposited with the Trustee (whether upon or prior to the
maturity or redemption date of any such Bonds); provided that if such Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given or arrangements
satisfactory to the Trustee shall have been made therefor, or waiver of such notice satisfactory in
form to the Trustee, shall have been filed with the Trustee; and
(iii) Bonds in lieu of which others have been authenticated under Section 2.9 of the
Indenture.
"Project" means the reskinning and restoration of Building 84 and all related
improvements and expenses related thereto (if any) which is being undertaken in connection with
the remediation and rehabilitation of the former Studebaker manufacturing facilities.
"Purchaser" means Regional Development Authority of Northern Indiana.
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1\11853148.2
"Qualified Investments" means any of the following classes of securities, to the extent to
which investment in such securities is permitted under State law: (i) direct obligations of, or
obligations the payment of the principal of and interest on which when due are unconditionally
guaranteed by, the United States of America; (ii) bonds, debentures, participation certificates, or
notes of any of the following agencies of the United States government: Federal Farm Credit
Banks, the Federal National Mortgage Association, the Government National Mortgage
Association, the Student Financing Marketing Corporation, the Federal Land Bank, the World
Bank, the Resolution Trust Corporation, the Federal Home Financing Mortgage Corporation, and
the Federal Home Financing Bank; (iii) investments which evidence direct ownership of future
interest and principal payments of obligations described in (i) or (ii) above; (iv) mutual funds or
money market funds (including an affiliate of the Trustee) which only invest in obligations
described in (i), (ii), or (vii) herein and which are rated in the highest category by a national
rating agency; (v) unsecured interest-bearing obligations of any commercial bank (including the
Trustee), trust company, bank holding company, insurance company, or any other entity with
long-term debt obligations which have been assigned to a rating category no less than the second
highest category assigned by Standard & Poor's Ratings Group and Moody's Investors Service;
(vi) deposits in interest-bearing time deposits or savings accounts in banks (including the
Trustee) organized under the laws of any state of the United States or under the laws of the
United States or in savings and Financing associations organized under the laws of any state of
the United States or under the laws of the United States, provided that any such deposits are (x)
insured by the Federal Deposit Insurance Corporation or (y) fully secured by obligations of the
type specified in (i), (ii), (iii), or (v) above; and (vii) fully collateralized direct repurchase
agreements or guaranteed investment contracts having a defined termination date, secured by
obligations of the United States of America or its agencies and instrumentalities in market value
of not less than the principal amount of the funds disbursed, pledged with a third party selected
or approved by the Developer, and placed through a primary government securities dealer, as
defined by the Board of Governors of the Federal Reserve System, or a nationally or state
chartered bank (which may include the Trustee).
"Redevelopment Commission" means the South Bend Redevelopment Commission.
"Series 2017 Bonds" or "Bonds" means the Taxable Economic Development Revenue
Bonds, Series 2017 (Studebaker Project) to be issued by the Issuer under the Indenture in the
aggregate principal amount of$3,500,000.
"State" means the State of Indiana.
"Tax Increment" means all real property tax proceeds and depreciable personal property
tax proceeds of designated taxpayers from assessed valuation of property in the Allocation Area
in excess of the assessed valuation described in IC 36-7-14-39(b)(1), as such statutory provision
exists on the date of issuance of the Series 2017 Bonds.
"TIF Pledge Resolution" means the resolution of the Redevelopment Commission
adopted on May 25, 2017,pledging TIF Revenues to the Issuer.
"TIF Revenues" means $3,500,000 of the Tax Increment funds on hand generated in the
Allocation Area and held in the Allocation Fund (as described in the TIF Pledge Resolution),
which moneys are to be separated from all other moneys in said Fund as of the day of closing
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and pledged to the Issuer for payment of the principal on the Bonds pursuant to the TIF Pledge
Resolution, for so long as the Bonds remain outstanding.
"Trustee" means the trustee and/or co-trustee at the time serving as such under the
Indenture, and shall initially mean 1 st Source Bank, South Bend, Indiana.
"Written Request" means a request in writing from an authorized representative of the
party making the request.
Section 1.2. Rules of Interpretation. For all purposes of this Financing Agreement,
except as otherwise expressly provided, or unless the context otherwise requires:
(a) "This Financing Agreement" means this instrument as originally executed and as
it may from time to time be supplemented or amended pursuant to the applicable provisions
hereof.
(b) All references in this instrument to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as
originally executed. The words "herein," "hereof' and "hereunder" and other words of similar
import refer to this Financing Agreement as a whole and not to any particular Article, Section or
other subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular and the singular as well as the plural.
(d) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
(e) Any terms not defined herein but defined in the Indenture shall have the same
meaning herein.
(f) The terms defined elsewhere in this Financing Agreement shall have the
meanings therein prescribed for them.
Section 1.3. Exhibits. There are no exhibits attached to and by reference made a part
of this Financing Agreement.
(End of Article 1)
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ARTICLE II.
REPRESENTATIONS
Section 2.1. Representations by Issuer. Issuer represents and warrants that:
(a) The Issuer is a municipal corporation duly organized and validly existing under
the laws of the State. Under the provisions of the Act, the Issuer is authorized to enter into the
transactions contemplated by this Financing Agreement and to carry out its obligations hereunder.
The Issuer has been duly authorized to execute and deliver this Financing Agreement.
(b) The Issuer agrees to provide funds from the issuance of the Series 2017 Bonds for
financing a portion of the cost of the construction of the Project, to the end that industry and the
economy may be diversified,job opportunities promoted and redevelopment accomplished.
(c) The Issuer covenants that it will timely pay the TIF Revenues to the Trustee as
provided in the Indenture. The Issuer represents and warrants that the TIF Pledge Resolution of
the Redevelopment Commission was validly adopted and constitutes a valid and binding
obligation of the Issuer, enforceable against the Issuer in accordance with its terms.
Section 2.2. Representations by Developer. Developer represents and warrants that:
(a) Developer is a limited liability company duly organized, existing and authorized
to do business under the laws of the State of Indiana, is not in violation of any provision of its
Articles of Organization or Operating Agreement, has not received notice and has no reasonable
grounds to believe that it is in violation of any laws in any manner material to its ability to
perform its obligations under this Financing Agreement, has power to enter into and to perform its
obligations under this Financing Agreement and has duly authorized the execution and delivery of
this Financing Agreement by appropriate corporate action.
(b) All of the proceeds from the Series 2017 Bonds (including any income earned on
the investment of such proceeds) will be used solely for Costs of Construction.
(c) The Developer intends to operate or cause the Project to be operated as an
economic development facility under the Act until the expiration or earlier termination of this
Financing Agreement as provided herein, unless the Developer has sold or otherwise transferred
the Project to a Surviving Corporation (as hereinafter defined) in accordance with Section 3.3 of
this Financing Agreement.
(d) Neither the execution and delivery of this Financing Agreement, the
consummation of the transactions contemplated hereby nor the fulfillment of or compliance with
the terms and conditions of this Financing Agreement, will contravene the Developer's Articles of
Organization or Operating Agreement or any law or any governmental rule, regulation or order
presently binding on the Developer or conflicts with or results in a breach of the terms, conditions
or provisions of any agreement or instrument to which Developer is now a parry or by which it is
bound, or constitutes a default under any of the foregoing, or results in the creation or imposition
of any liens, charges, or encumbrances whatsoever upon any of the property or assets of
Developer under the terms of any instrument or agreement.
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(e) The execution, delivery and performance by the Developer of this Financing
Agreement do not require the consent or approval of, the giving of notice to, the registration with,
or the taking of any other action in respect of, any federal, state or other governmental authority or
agency, not previously obtained or performed.
(f) Assuming the due authorization, execution and delivery thereof by the other
parties thereto, this Financing Agreement has been duly executed and delivered by the Developer
and constitutes the legal, valid and binding agreement of the Developer, enforceable against the
Developer in accordance with its terms, except as may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights in general.
(g) There are no actions, suits or proceedings pending, or, to the knowledge of the
Developer, threatened, before any court, administrative agency or arbitrator which, individually or
in the aggregate, might result in any material adverse change in the financial condition of the
Developer or might impair the ability of the Developer to perform its obligations under this
Financing Agreement.
(h) No event has occurred and is continuing which with the lapse of time or the
giving of notice would constitute an event of default under this Financing Agreement.
(i) The Developer expects to complete construction of the Project by December 31,
2018.
0) The Developer agrees that it will act in good faith in making bidding
opportunities available to employ qualified, price-competitive, City of South Bend contractors
with respect to the construction in the Area.
(k) The Developer agrees that it will act in good faith in making bidding
opportunities available to purchase equipment and supplies from qualified, price competitive,
suppliers and to hire qualified City of South Bend residents as employees of the Project.
Section 2.3. Financing of Series 2017 Bond Proceeds by Issuer. Concurrently with the
execution and delivery hereof, the Issuer is issuing the Series 2017 Bonds and is lending the
proceeds from the sale thereof to the Developer by making the deposits and payments specified
in Section 3.1 and 4.4 of the Indenture.
(End of Article II)
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ARTICLE I11.
PARTICULAR COVENANTS OF THE DEVELOPER
Section 3.1. Consent to Assignments to Trustee. The Developer acknowledges and
consents to the assignment of the Issuer's rights hereunder to the Trustee pursuant to the
Indenture and agrees that the Trustee may enforce the rights, remedies and privileges granted to
the Issuer hereunder other than the rights of the Issuer to receive payments under Sections 3.9
and 3.11 hereof and agrees to execute and deliver supplements and amendments to this
Financing Agreement pursuant to Section 8.1 hereof.
Section 3.2. General Covenants. (a) The Developer covenants and agrees with and for
the express benefit of the Issuer, the Trustee and the owners of the Bonds that the Developer
shall perform all of its other obligations, covenants and agreements hereunder, without notice or
demand.
(b) Until such time as the 2017 Bonds shall have been fully paid, or provision for the
payment thereof shall have been made in accordance with the Indenture, the Developer: (i) will
perform and observe all of its agreements contained in this Financing Agreement; and (ii) will not
terminate this Financing Agreement for any cause, including, without limiting the generality of
the foregoing, failure of the Developer to complete the Project, the occurrence of any acts or
circumstances that may constitute failure of consideration, eviction or constructive eviction,
destruction of or damage to the Project, commercial frustration of purpose, any change in the tax
laws of the United States of America or of the State or any political subdivision of either thereof,
or any failure of the Issuer or the Trustee to perform and observe any agreement, whether express
or implied, or any duty, liability or obligation arising out of or connected with this Financing
Agreement or the Indenture.
Section 3.3. Continuing Existence and Qualification; Assignment, Sale or Other
Disposition of Facilities. The Developer covenants that so long as any Bonds are outstanding, it
will maintain in good standing its corporate existence and qualification to do business in the
State, will not dissolve or otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other entities to consolidate
with or merge into it; provided that the Developer may, without violating its agreement
contained in this Section, consolidate with or merge into another corporation or other entity, or
permit one or more other corporations or other entities to consolidate with or merge into it, or
sell or otherwise transfer to another corporation or entity all or substantially all of its assets as an
entirety and thereafter dissolve, provided the surviving, resulting or transferee entity (such
corporation being hereinafter called the "Surviving Corporation") (if other than the Developer)
expressly accepts, agrees and assumes in writing to pay and perform all of the obligations of the
Developer herein and be bound by all of the agreements of the Developer contained in this
Financing Agreement to the same extent as if the Surviving Corporation had originally executed
this Financing Agreement, and the Surviving Corporation is an Indiana corporation or is a
foreign corporation or partnership, trust or other person or entity organized under the laws of one
of the states of the United States and is qualified to do business in the State of Indiana as a
foreign corporation or partnership,trust or other person or entity.
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Section 3.4. Developer Duties Under Indenture. The Developer agrees to perform all
matters provided by the Indenture to be performed by the Developer and to comply with all
provisions of the Indenture to be complied with by the Developer.
Section 3.5. Assignment, Sale or Other Disposition of Project. Any sale, lease or other
disposition of the Project or any portion thereof is subject to the conditions of Section 3.10
hereof.
Section 3.6. Trustee's Right to Perform Developer's Covenants; Advances. If the
Developer shall fail to (i) complete or cause the completion of the construction of the Project, or
(ii) fail to make any payment or perform any other act required to be performed hereunder, then
and in each such case the Trustee, upon not less than 5 days' prior written notice to the
Developer, may (but shall not be obligated to) remedy such default for the account of the
Developer and make advances for that purpose. No such performance or advance shall operate
to release the Developer from any such default, and any sums so advanced by the Trustee shall
be repayable by the Developer on demand and shall bear interest at the Trustee bank's prime rate
plus two percent(2%) from the date of the advance until repaid.
Section 3.7. Indemnity. The Developer will pay, protect, defend, indemnify and save
the Issuer, the Commission, the Redevelopment Commission and the Trustee harmless from and
against, all liabilities, losses, damages, costs, expenses (including attorneys' fees and expenses of
the Issuer and the Trustee), causes of actions, suits, claims, demands and judgments of any
nature arising from or relating to the Project, or this Financing Agreement (except with respect to
any breach of any of Issuer's or Trustee's covenants, agreements, representations or warranties
included in this Financing Agreement and except for damage resulting from willful or negligent
actions by the Trustee or the Issuer). If any proceeding is instituted for which indemnity may be
sought under this Section 3.7, the party that may seek such indemnity shall notify the Developer
and the Issuer in writing in a timely manner to allow the Developer to defend any action or claim
in such proceeding.
The indemnifications set forth herein shall survive the termination of this Financing
Agreement and the resignation or removal of the Trustee.
Section 3.8. Funding of Indenture Funds; Investments. The Issuer shall deposit with
the Trustee proceeds from the sale of the Series 2017 Bonds in the manner specified in Article 3
of the Indenture, and the Trustee shall deposit such proceeds in the manner specified in such
Article.
The Developer and the Issuer agree that all moneys in any Fund established by the
Indenture shall, at the written direction of the Developer,be invested in Qualified Investments.
The Trustee is hereby authorized to trade with itself in the purchase and sale of securities
for such investments, and may charge its ordinary and customary fees for such trades, including
cash sweep account fees. The Trustee shall not be liable or responsible for any loss resulting
from any such investment properly obtained in accordance with the Developer's direction. All
such investments shall be held by or under the control of the Trustee and any income resulting
therefrom shall be applied in the manner specified in the Indenture. Although the Issuer and the
Developer each recognizes that it may obtain a broker confirmation or written statement
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containing comparable information at no additional cost, the Issuer and the Developer hereby
agree that confirmations of permitted investments are not required to be issued by the Trustee for
each month in which a monthly statement is rendered. No statement need be rendered for any
fund or account if no activity occurred in such fund or account during such month.
Section 3.9. Completion of Project. (a) The Developer agrees that it will use
reasonable efforts to cause to be made, executed, acknowledged and delivered any contracts,
orders, receipts, writings and instructions with any other persons, firms, corporations or
partnerships and in general do all things which may be requisite or proper, all for constructing,
equipping and completing the Project by December 31, 2018.
The Developer agrees, for the benefit of the Issuer and the Bondholders and in order to
fulfill the purposes of the Act, to complete the construction and assembly of the Project and to
pay from other funds of the Developer that portion of the costs as may be in excess of the
moneys available therefor in the Construction Fund. The Issuer does not make any warranty,
either express or implied, that the moneys, which will be paid into the Construction Fund and
which under the provisions of this Financing Agreement will be available for payment of the
costs of the construction and assembly of the Project, will be sufficient to pay all the costs which
will be incurred in that connection. The Developer shall not be entitled to any reimbursement
therefor from the Issuer,the Trustee, or the holders of any of the Bonds.
(b) The Issuer has, in Section 4.3 of the Indenture, authorized and directed Trustee to
make payments from the Construction Fund to pay the Costs of Construction, or to reimburse
Developer or the Issuer for any Costs of Construction paid by it in the manner and subject to the
provision of Section 4.3 thereof.
(c) The Completion Date shall be evidenced to Trustee and the Developer by a
certificate signed by an Authorized Representative of the Issuer in compliance with the provision
of Section 4.3(b) of the Indenture and any excess proceeds in the Construction Fund at such time
shall be deposited in the Bond Fund and used to prepay the 2017 Bonds as provided in Section
4.2(a)hereof.
Section 3.10. Sale, Substitution, or Lease of the Project. The Developer, subject to the
written consent of the Issuer(which consent shall not be unreasonably withheld), may sell, lease
or transfer or otherwise dispose of the Project or any portion thereof only if the sale, lease or
transfer or other disposition shall not relieve the Developer from liability from the performance
of all of the obligations of this Financing Agreement, except as permitted by Section 3.3 hereof,
unless the transferee accepts, agrees and assumes in writing to pay and perform all of the
obligations of the Developer herein and be bound by all of the agreements of the Developer
contained in this Financing Agreement to the same extent as if the transferee had originally
executed this Financing Agreement.
Section 3.11. Section 118 Nonshareholder Contribution. The Developer shall treat and
report the TIF Revenues paid by the Redevelopment Commission to the Trustee in the aggregate
amount of$3,500,000 as a non-shareholder contribution from the Issuer to the Developer under
Code Section 118 ("Nonshareholder Contribution").
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Section 3.12. Section 118 Tax Accounting. The Developer shall cause the tax balance
sheet of the Developer to reflect a reduction in basis attributed to the exclusion of the
Nonshareholder Contribution from taxable income under Code Section 118 as required under
Code Section 362. In no event shall the Developer take any depreciation deductions attributable
to the Nonshareholder Contribution at any time.
(End of Article III)
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ARTICLE IV.
APPLICATION OF SERIES 2017 BOND PROCEEDS
Section 4.1. Use of 2017 Bond Proceeds by Issuer. Concurrently with the execution
and delivery hereof, the Issuer is issuing the Series 2017 Bonds and is depositing the proceeds
from the sale thereof with the Trustee for the use of the Developer by making the deposits and
payments specified in Section 3.1 and 4.3 of the Indenture; provided such proceeds shall be used
solely in connection with the development of the Project and advanced and used solely in
accordance with the terms of this Financing Agreement and the Indenture.
Section 4.2. Use of TIF Revenues. Issuer covenants as follows:
(a) Upon receipt of Written Request of the Developer pursuant to Section 4.3(b) of
the Indenture, the Trustee shall distribute sums for Costs of Construction of the Project as those
costs are incurred until the Trustee has distributed in the aggregate total amount of Three Million
Five Hundred Thousand Dollars ($3,500,000). All of the foregoing is for the benefit of the
holders of the Series 2017 Bonds, to the end that industry and the economy may be diversified and
job opportunities promoted and retained, and to secure the Series 2017 Bonds by pledging the TIF
Revenues to the Trustee.
(b) The Issuer covenants that, to the extent collected, it will timely pay the TIF
Revenues to the Trustee as provided in Section 4.4 of the Indenture, provided that the Issuer shall
have no other obligation with respect to the Series 2017 Bonds.
Section 4.3. Estoppel Certificate. The Issuer shall, upon reasonable request of the
Developer, provide the Developer (or such person as the Developer requests) with a certificate
stating that an Event of Default by Developer has not occurred hereunder as of the date of such
certificate,provided that such state of facts are true.
(End of Article IV)
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ARTICLE V.
EVENTS OF DEFAULT
Section 5.1. Events of Default. (a) The occurrence and continuance of any of the
following events shall constitute an "event of default" hereunder:
(i) failure of the Developer to observe and perform any covenant, condition
or provision hereof, including all warrants and representations, and to remedy such
default within 30 days after notice thereof from the Trustee to the Borrower, unless the
Issuer shall have consented thereto in writing; or
(ii) the entry of a decree or order for relief by a court having jurisdiction in the
premises in respect of the Developer in an involuntary case under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the
Developer or for any substantial part of its property, or ordering the windup or liquidation
of its affairs; or the filing and pendency for ninety days without dismissal of a petition
initiating an involuntary case under any other bankruptcy, insolvency or similar law; or
(iii) the commencement by the Developer of any voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, whether
consent by it to an entry to an order for relief in an involuntary case and under any such
law or to the appointment of or the taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the Developer or of any
substantial part of its property, or the making by the Developer of any general assignment
for the benefit of creditors, or the failure of the Developer generally to pay its debts as
such debts become due, or the taking of corporate action by the Developer in furtherance
of any of the foregoing.
(b) Subject to the further provisions of this Article V, during the occurrence and
continuance of any Event of Default hereunder, Issuer shall have the rights and remedies
hereinafter set forth in addition to any other remedies herein or provided at law or in equity
(provided that the Issuer shall have the right to assign and delegate all such remedies to the
Trustee, who may exercise any or all such remedies):
(i) Advances to Cure. In addition to the provisions of Section 3.5, the Issuer
may, but shall have no obligation to, cure such Event of Default or make advances to do
so and shall be entitled to recover such sums from the Construction Fund or other 2017
Bond proceeds or from the Developer.
(ii) No Further Proceeds. The Issuer shall, upon an Event of Default, be
entitled to direct the Trustee to cease honoring draw requests from the Construction Fund
or from other proceeds of the 2017 Bonds and the Developer shall not be entitled to
further draws from the Construction Fund or be entitled to other proceeds from the 2017
Bonds.
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(iii) Right to Bring Suit, Etc. The Issuer, with or without entry, personally or
by attorney, may in its discretion, proceed to protect and enforce its rights by a suit or
suits in equity or at law, whether for recovery of amounts due, for damages or for the
specific performance of any covenant or agreement contained in this Financing
Agreement or in aid of the execution of any power herein granted, or for the enforcement
of any other appropriate legal or equitable remedy, as the Issuer shall deem most
effectual to protect and enforce any of its rights or duties hereunder against Developer;
provided, however that all costs incurred by the Issuer under this Article V including its
attorneys' fees and costs of collection, shall be paid on demand to the Issuer by the
Developer. The Developer acknowledges and agrees that the breach of some of their
obligations cannot be cured by the payment of money and that equitable relief is an
appropriate remedy.
Section 5.2. Remedies Cumulative. No remedy herein conferred upon or reserved to
the Trustee is intended to be exclusive of any other remedy or remedies, and each and every such
remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute.
Section 5.3. Delay or Omission Not a Waiver. No delay or omission of the Trustee to
exercise any right or power accruing upon any event of default shall impair any such right or
power, or shall be construed to be a waiver of any such event of default or an acquiescence
therein; and every power and remedy given by this Financing Agreement to the Trustee may be
exercised from time to time and as often as may be deemed expedient by the Trustee.
Section 5.4. Reserved.
Section 5.5. Remedies Subject to Provisions of Law. All rights, remedies and powers
provided by this Article may be exercised only to the extent that the exercise thereof does not
violate any applicable provision of law in the premises, and all the provisions of this Article are
intended to be subject to all applicable mandatory provisions of law which may be controlling in
the premises and to be limited to the extent necessary so that they will not render this Loan
Agreement invalid or unenforceable under the provisions of any applicable law.
Section 5.6. Waiver of Events of Default. If after any event of default shall have
occurred under this Financing Agreement and prior to the Trustee exercising any of the remedies
provided in this Article, the Developer shall have completely cured such default, such default
may be waived at the discretion of the Issuer and, if so waived, shall be rescinded and annulled
by the Trustee by written notice given to the Developer.
(End of Article V)
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1\1 1853148.2
ARTICLE VI.
IMMUNITY
Section 6.1. Immunity. No covenant or agreement contained in the Bonds, this
Financing Agreement or the Indenture shall be deemed to be a covenant or agreement of any
member of the Issuer or the Commission or of any officer or employee of the Issuer, the
Commission or their legislative and fiscal bodies in his or her individual capacity, and neither the
members of the Issuer, the Commission, nor any officer or employee of the Issuer executing the
Bonds shall be liable personally on the Bonds or be subject to any personal liability or
accountability by reason of the issuance of the Bonds.
(End of Article VI)
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ARTICLE VII.
SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING AGREEMENT
Section 7.1. Supplements and Amendments to this Financing Agreement. Subject to
the provisions of Article 10 of the Indenture, the Developer and the Issuer may, with the consent
of the Trustee, from time to time enter into such supplements and amendments to this Financing
Agreement as to them may seem necessary or desirable to effectuate the purposes or intent
hereof.
(End of Article VII)
I
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ARTICLE VIII.
DEFEASANCE
Section 8.1. Defeasance. If provision shall have been made for the satisfaction and
discharge of the Indenture as provided therein, then and in that case this Financing Agreement
shall thereupon cease, terminate and become void; and this Financing Agreement, and the
covenants of the Developer contained herein, shall be discharged and the Issuer and the Trustee
in such case on demand of the Developer and at its cost and expense, shall execute and deliver to
the Developer a proper instrument or proper instruments acknowledging the satisfaction and
termination of this Financing Agreement.
(End of Article VIII)
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1\11853148.2
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.1. Financing Agreement for Benefit of Parties Hereto. Nothing in this
Financing Agreement, express or implied, is intended or shall be construed to confer upon, or to
give to, any person other than the parties hereto, their successors and assigns the Trustee, any
right, remedy or claim under or by reason of this Financing Agreement or any covenant,
condition or stipulation hereof, and the covenants, stipulations and agreements in this Financing
Agreement contained are and shall be for the sole and exclusive benefit of the parties hereto,
their successors and assigns, the Trustee and the holder of the Series 2017 Bonds.
Section 9.2. Severability. If any one or more of the provisions contained in this
Financing Agreement or in the Series 2017 Bonds shall be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining provisions contained herein
and therein, shall not in any way be affected or impaired thereby.
Section 9.3. Limitation on Interest. No provisions of this Financing Agreement shall
require the payment or permit the collection of interest in excess of the maximum permitted by
law. If any excess of interest in such respect is herein provided for, or shall be adjudicated to be
so provided for herein, neither the Developer nor its successors or assigns shall be obligated to
pay such interest in excess of the amount permitted by law, and the right to demand the payment
of any such excess shall be and hereby is waived, and this provision shall control any provisions
of this Financing Agreement inconsistent with this provision.
Section 9.4. Addresses for Notice and Demands. All notices, demands, certificates or
other communications hereunder shall be sufficiently given and shall be deemed given when
mailed by registered or certified mail, postage prepaid, with proper address as indicated below.
The Issuer, the Developer and the Trustee may, by written notice given by each to the others,
designate any address or addresses to which notices, demands, certificates or other
communications to them shall be sent when required as contemplated by this Financing
Agreement. Until otherwise provided by the respective parties, all notices, demands certificates
and communications to each of them shall be addressed as follows:
To the Issuer: City of South Bend, Indiana
227 West Jefferon Blvd., Suite 1400N
South Bend, IN 46601
Attention: Controller
To the Developer: RDistrict Two LLC
6561 Lonewolf Drive, Suite 100
South Bend, IN 46601
Attention: Manager
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To the Trustee: Pt Source Bank
South Bend, IN 46601
Attention: Corporate Trust Department
Section 9.5. Successors and Assigns. Whenever in this Financing Agreement any of
the parties hereto is named or referred to, the successors and assigns of such party shall be
deemed to be included and all the covenants, promises and agreements in this Financing
Agreement contained by or on behalf of the Developer, or by or on behalf of the Issuer, shall
bind and inure to the benefit of the respective successors and assigns, whether so expressed or
not.
Section 9.6. Counterparts. This Financing Agreement is being executed in any number
of counterparts, each of which is an original and all of which are identical. Each counterpart of
this Financing Agreement is to be deemed an original hereof and all counterparts collectively are
to be deemed but one instrument.
Section 9.7. Governing Law. It is the intention of the parties hereto that this Financing
Agreement and the rights and obligations of the parties hereunder and the rights and obligations
of the parties thereunder, shall be governed by and construed and enforced in accordance with,
the laws of the State.
(End of Article IX)
i
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1\11853148.2
IN WITNESS WHEREOF, the Issuer has caused this Financing Agreement to be
executed in its name by its authorized officers and has caused its corporate seal to be hereunto
affixed, and the Developer has caused this Financing Agreement to be executed in their names,
all as of the date first above written.
RDISTRICT TWO LLC
By:
Printed:
Title:
1\11853148.2
CITY OF SOUTH BEND, INDIANA
Mayor
(SEAL)
Attest:
Controller
This instrument prepared by Lisa A. Lee, Ice Miller LLP, One American Square, Suite 2900,
Indianapolis, Indiana 46282-0200.
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1\11853148.2
ICE MILLER LLP
DRAFT FOR DISCUSSION
PURPOSES ONLY
May 3,2017
BOND PURCHASE AGREEMENT
BOND PURCHASE AGREEMENT, dated as of the day of ,
2017, by and among the CITY OF SOUTH BEND, INDIANA("City"), a municipality organized
and existing under the laws of the State of Indiana, RDistrict Two LLC, an Indiana limited
liability company ("Company") and Regional Development Authority of Northern Indiana
("Purchaser").
WITNESSETH:
WHEREAS, the City has duly authorized the issuance of its bonds designated "Taxable
Economic Development Revenue Bonds, Series 2017 (Studebaker Project)" ('Bonds") in the
aggregate principal amount of $3,500,000 by the adoption of its Bond Ordinance on June 12,
2017, a true and correct copy of which is incorporated herein by reference ("Bond Ordinance")
and as described in the Trust Indenture, dated as of June 1, 2017 ("Indenture") between the City
and 1 st Source Bank, as trustee ("Trustee"); and
WHEREAS,the Purchaser has authorized the purchase of the Bonds;
NOW, THEREFORE, THE CITY, THE COMPANY AND THE PURCHASER AGREE:
Section 1. Purchase and Sale of the Bonds. (a) The Purchaser hereby agrees to
purchase the Bonds and the City hereby agrees to use its best efforts to issue the Bonds and to
sell the Bonds to the Purchaser in the face amount of$3,500,000. The Bonds shall be dated their
date of issuance and shall be paid for in installments and the first installment shall be for
$ to be deposited with Trustee pursuant to the Indenture, and shall be
subject to optional redemption prior to their stated maturity as set forth in Exhibit A attached
hereto and made a part hereof. The Bonds shall bear interest at the rate of 1% per annum and
shall accrue interest on the outstanding balance of the Bond from the date of issuance of the
Bonds based upon the average daily balance of the Bonds. The other terms of the Bonds are set
forth in the Bonds and the Indenture. The Bonds shall constitute a contract between the City and
the Purchaser, as the owner of the Bonds.
(b) The Bonds shall be issued in minimum denominations of$100,000 and integral
multiples of$1,000 thereafter and shall be numbered from R-1 upward if more than one Bond
shall be delivered.
(c) The City has taken or will take prior to closing all actions required by law to
enable it to issue its Bonds.
(d) Prior to delivery of the Bonds by the City, the Purchaser will provide an
investment letter to the effect that by acceptance of the Bonds the Purchaser will be deemed to
have consented to all of the terms and provisions of the Bond Ordinance, the Indenture and the
Financing Agreement (both as defined in the Indenture) and will represent that:
(i) It is a sophisticated investor and is familiar with securities such as the Bonds.
1\11862988.2
(ii) It is familiar with the City; it has received such information concerning the City,
the Bonds and the TIF Revenues (as defined in the Indenture) as it deems to be
necessary in connection with investment in the Bonds. It has received, read and
had an opportunity to comment upon and has consented to the provisions of the
Indenture, the Bonds and the Financing Agreement. Prior to the purchase of the
Bonds, it has been provided with the opportunity to ask questions of and receive
answers from the representatives of the Issuer concerning the terms and
conditions of the Bonds, the tax status of the Bonds, legal opinions and
enforceability of remedies, the security therefor, and property tax reform, and to
obtain any additional information needed in order to verify the accuracy of the
information obtained to the extent that the Issuer possesses such information or
can acquire it without unreasonable effort or expense. We are not relying on Ice
Miller LLP for information concerning the financial status of the Issuer or the
ability of the Issuer to honor its financial obligations or other covenants under the
Bonds,the Indenture or the Financing Agreement.
(iii) It is acquiring the Bonds for its own account with no present intent to resell; and
will not sell, convey, pledge or otherwise transfer the Bonds without prior
compliance with applicable registration and disclosure requirements of state and
federal securities law.
(iv) It has investigated the security for the Bonds, including the availability of TIF
Revenues, to its satisfaction, and it understands that the principal on the Bonds is
payable solely from TIF Revenues. It further understands that the Issuer does not
have the power or the authority to levy a tax to pay the principal of or interest on
the Bonds.
(v) It understands that under current law the City's collection of the TIF Revenues
may be limited by operation of IC 6-1.1-20.6, which provides taxpayers with a tax
credit for all property taxes attributable to difference classes of property in an
amount that exceeds certain percentages of the gross assessed value of that
property. It understands that the Issuer may not levy a property tax or borrow
money to make up any shortfall due to the application of this tax credit.
(vi) It recognizes that: (a) the opinions it has received express the professional
judgment of the attorneys participating in the transaction as to the legal issues
addressed herein; (b) by rendering such opinions, the attorneys do not become
insurers or guarantors of (i) that expression of professional judgment; (ii) the
transaction opined upon; or (iii) the future performance of parties to such
transaction; and (c) the rendering of the opinions does not guarantee the outcome
of any legal dispute that may arise out of the transaction.
(vii) It understands that the City has no continuing disclosure obligation on the Bonds.
(viii) It understands that interest on the Bonds is taxable for federal income tax
purposes.
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I\11862988.2
(e) Simultaneously with the delivery to, or at the direction of, the Purchaser of the
Bonds, which Bonds shall be substantially in the form set forth in the Indenture, the City shall
furnish to the Purchaser a transcript of proceedings and the opinion of Ice Miller LLP, bond
counsel, addressed to the Trustee as to, among other things,the validity of the Bonds.
Section 2. If any provision of this Purchase Agreement shall for any reason be held
to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not
affect any of the remaining provisions of this Purchase Agreement and this Purchase Agreement
shall be construed and be in force as if such invalid or unenforceable provision had not been
contained herein.
Section 3. This Purchase Agreement may be executed in one or more counterparts,
any of which shall be regarded for all purposes as an original and all of which constitute but one
and the same instrument. The Purchaser, the Company and the City each agree that they will
execute any and all documents or other instruments and take such other actions as may be
necessary to give effect to the terms of this Purchase Agreement.
Section 4. No waiver by either the Purchaser, the Company or the City of any term or
condition of this Purchase Agreement shall be deemed or construed as a waiver of any other
terms or conditions, nor shall a waiver of any breach be deemed to constitute a waiver of any
subsequent breach, whether of the same or of a different section, subsection, paragraph, clause,
phrase or other provision of this Purchase Agreement.
Section 5. This Purchase Agreement merges and supersedes all prior negotiations,
representations, and agreements among the Purchaser, the Company and the City relating to the
subject matter hereof and constitutes the entire agreement among the Purchaser, the Company
and the City in respect hereof.
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1\11862988.2
IN WITNESS WHEREOF, we have hereunto set our hands as of the day first above
written.
CITY OF SOUTH BEND, INDIANA
Mayor
COUNTERSIGNED:
Controller
Attest:
Clerk
I\11862988.2
IN WITNESS WHEREOF, I have hereunto set my hand as of the day first above written.
REGIONAL DEVELOPMENT AUTHORITY OF
NORTHERN INDIANA, as purchaser
By:
Printed:
I!
I\11862988.2
IN WITNESS WHEREOF, I have hereunto set my hand as of the day first above written.
RDISTRICT TWO LLC, an Indiana limited liability
company
By:
Printed:
1\11862988.2
EXHIBIT A
Maturity Schedule
Date Amount Rate
201 $3,500,000 1%
Optional Redemption
The Bonds are subject to optional redemption by the Issuer on any date, upon seven (7)
days' notice, in whole or in part, in such order of maturity as the Issuer shall direct in writing and
by lot within maturities, at face value, without premium, plus in each case accrued interest to the
date of redemption.
1\11862988.2