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HomeMy WebLinkAboutNo. 2956 a supplemental bond resolution supplementing/amending Resolution No. 1965, adopted March 21, 2003RESOLUTION NO. 2956 A SUPPLEMENTAL BOND RESOLUTION OF THE CITY OF SOUTH BEND REDEVELOPMENT COMMISSION, SUPPLEMENTING AND AMENDING RESOLUTION NO. 1965, ADOPTED ON MARCH 21, 2003, AS PREVIOUSLY SUPPLEMENTED AND AMENDED BY RESOLUTION NO. 2004, ADOPTED ON SEPTEMBER 5, 2003, AND BY RESOLUTION NO. 2017, ADOPTED ON NOVEMBER 7, 2003, ALL FOR THE PURPOSE OF AUTHORIZING THE MODIFICATION OF CERTAIN CONTRACTUAL RIGHTS, THE EXECUTION AND DELIVERY OF ITS CITY OF SOUTH BEND, INDIANA, REDEVELOPMENT DISTRICT AMENDED TAX INCREMENT REVENUE BONDS, SERIES 2003 (AIRPORT ECONOMIC DEVELOPMENT AREA), AND REGARDING CERTAIN RELATED MATTERS WHEREAS, the City of South Bend Redevelopment Commission (the "Commission "), governing body of the City of South Bend, Indiana, Redevelopment District (the "District "), exists and operates under the provisions of Indiana Code 36 -7 -14, as amended, and Indiana Code 36 -7 -25, as amended (collectively, the "Act "); and WHEREAS, on December 30, 2003, the Commission, acting in the name of the City of South Bend, Indiana (the "City "), issued its bonds designated as the "City of South Bend, Indiana, Redevelopment District Tax Increment Revenue Bonds, Series 2003 (Airport Economic Development Area)" in the original aggregate principal amount of $14,420,000 (the "Original 2003 AEDA Bonds "), which are payable from property taxes generated in the Airport Economic Development Area previously established by the Commission and allocated in accordance with Indiana Code 36- 7- 14 -39, as amended, in order to provide funds to pay for the costs of certain public road infrastructure improvements, all pursuant to Resolution No. 1965, adopted by the Commission on March 21, 2003, as supplemented and amended by Resolution No. 2004, adopted by the Commission on September 5, 2003, as further supplemented and amended by Resolution No. 2017, adopted by the Commission on November 7, 2003 (collectively, the "Original Resolution "); and WHEREAS, as of the date hereof, the Original 2003 AEDA Bonds are outstanding in the aggregate principal amount of $10,435,000; and WHEREAS, pursuant to the terms of the Original 2003 AEDA Bonds and the Qualified Entity Purchase Agreement, dated December 17, 2003 (the "Original Purchase Agreement "), by and among the Commission, the City and the Indiana Bond Bank (the "Bond Bank "), the Original 2003 AEDA Bonds maturing on or after February 1, 2013, are subject to redemption prior to maturity, at the option of the Commission, in whole or in part, on any date on or after August 1, 2012 (as may be determined by the Commission), at a redemption price equal to the principal amount of the Original 2003 AEDA Bonds to be redeemed, plus accrued interest to the redemption date, and without any redemption premium (the "Call Rights "); and WHEREAS, the Bond Bank previously issued its Indiana Bond Bank Special Program Bonds, Series 2003 E (South Bend TIF Districts), dated December 30, 2003, in the aggregate principal amount of $36,530,000 (the "Prior Bond Bank Bonds "), for the purpose of providing INDS01 B1B 13017850 funds to purchase the Original 2003 AEDA Bonds from the Qualified Entity, together with other L� obligations of the Qualified Entity; and 14 WHEREAS, the Bond Bank has authorized and intends to issue its Indiana Bond Bank Special Program Refunding Bonds, Series 2011 A (South Bend TIF Districts) (the "Refunding Bond Bank Bonds "), for the purpose of refunding all or a portion of the Prior Bond Bank Bonds (the "Refunding Program "); and WHEREAS, as a condition to sharing a portion of the economic benefits associated with the Refunding Program with the Commission, the Bond Bank has requested that the Commission modify the Call Rights and evidence the modification of such Call Rights (in exchange for receiving a portion of the economic benefits associated with the Refunding Program) by executing and delivering its Amended 2003 AEDA Bonds (as hereinafter defined) and, following the undertaking of the Refunding Program and satisfaction of the other terms and conditions set forth herein, exchanging the Amended 2003 AEDA Bonds for the outstanding Original 2003 AEDA Bonds; and WHEREAS, pursuant to the terms of the Original Resolution, the Commission may grant or confer upon the owners of the Original 2003 AEDA Bonds any additional benefits, rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the owners of the Original 2003 AEDA Bonds, or to make any change which, in the judgment of the Commission, is not to the prejudice of the owners of the Original 2003 AEDA Bonds; and WHEREAS, pursuant to the terms of the Original Resolution, the Commission may, from time to time and at any time, without consent of, or notice to, any of the owners of the Original 2003 AEDA Bonds, amend the Original Resolution for any purpose if in the judgment of the Commission such amendment does not adversely affect the interests of the owners of the outstanding Original 2003 AEDA Bonds; and WHEREAS, on the date hereof, the Bond Bank is the owner of all of the outstanding Original 2003 AEDA Bonds; and WHEREAS, the Commission desires to adopt this resolution (the "Supplemental Resolution ") to further supplement and amend the Original Resolution (the Original Resolution and the Supplemental Resolution, collectively, the "Resolution ") for the purpose of authorizing the modification of the Call Rights (as described in Section 3 herein) and the execution and delivery of the Amended 2003 AEDA Bonds (in order to evidence the modification of such Call Rights), all in consideration for the Bond Bank (a) paying to the Commission a portion of the economic benefits associated with the Refunding Program in an amount estimated to be, based upon current market conditions, at least equal to $294,000 (the "Call Rights Modification Fee "), and (b) returning all of the outstanding Original 2003 AEDA Bonds to the Commission; and WHEREAS, the Commission has determined that a significant benefit to the District in the amount of the Call Rights Modification Fee will be effected by the undertaking of the Refunding Program; and INDS01 BJB 13017850 2 WHEREAS, the Commission now finds that all conditions precedent to the adoption of this Supplemental Resolution have been complied with in accordance with the provisions of Indiana Code 5 -1 -5 and the Act, to the extent each is applicable hereto; NOW THEREFORE, BE IT RESOLVED BY THE CITY OF SOUTH BEND REDEVELOPMENT COMMISSION, GOVERNING BODY OF THE CITY OF SOUTH BEND, INDIANA, REDEVELOPMENT DISTRICT, AS FOLLOWS: Section 1. Authorization of 2011 Transaction; Modification of Call Rights. The Commission hereby determines that (a) the receipt of the Call Rights Modification Fee in exchange for the modification of the Call Rights by the Commission, and (b) the execution and delivery by the Commission of the Amended 2003 AEDA Bonds to the Bond Bank in exchange for the outstanding Original 2003 AEDA Bonds now held by the Bond Bank in order to evidence the modification of such Call Rights (clauses (a) and (b), collectively, the "2011 Transaction "), is in the best interests of the District and is consistent with and in furtherance of the purposes for which the District was created and exists. The Commission hereby further determines that the modification of the Call Rights and the execution and delivery of the Amended 2003 AEDA Bonds will not adversely affect the owners of the Original 2003 AEDA Bonds upon the execution and delivery of the Amended 2003 AEDA Bonds. The Commission is hereby authorized to modify the Call Rights and to execute and deliver the Amended 2003 AEDA Bonds, all in accordance with the terms and conditions of this Supplemental Resolution. Section 2. The Amended 2003 AEDA Bonds. In accordance with the Act and for the purpose of the 2011 Transaction, the Commission, acting in the name of the City, shall execute and deliver its amended bonds designated as the "City of South Bend, Indiana, Redevelopment District Amended Tax Increment Revenue Bonds, Series 2003 (Airport Economic Development Area)," in an original aggregate principal amount not to exceed the aggregate principal amount of the Original 2003 AEDA Bonds which are currently outstanding (the "Amended 2003 AEDA Bonds "), and exchange the Amended 2003 AEDA Bonds for all of the outstanding Original 2003 AEDA Bonds. Except where inconsistent with the provisions of this Supplemental Resolution, the terms and conditions of the Amended 2003 AEDA Bonds shall be the same as those of the outstanding Original 2003 AEDA Bonds as provided in the Original Resolution. The form of the Amended 2003 AEDA Bonds shall be substantially in the form set forth in the Original Resolution, with such conforming changes as shall be necessary to reflect the terms and conditions set forth in this Supplemental Resolution and the Amended Purchase Agreement (as defined herein), including the modified redemption rights, and shall be executed and delivered in the same manner and in accordance with the terms and conditions of the Original Resolution and the Act. Notwithstanding anything in the Original Resolution, the Original Purchase Agreement or the Original 2003 AEDA Bonds to the contrary, the principal of and interest on the Amended 2003 AEDA Bonds shall be payable semi - annually on each February 1 and August 1 (or on the first business day thereafter if such date occurs on a Saturday, Sunday or legal holiday), commencing on February 1, 2012. Section 3. Optional Redemption Rights. Notwithstanding anything in the Original Resolution, the Original Purchase Agreement or the Original 2003 AEDA Bonds to the contrary, the Amended 2003 AEDA Bonds maturing on or before February 1, 2022 shall not be subject to optional redemption prior to maturity. The Amended 2003 AEDA Bonds maturing on or after INDS01 B1B 13017850 3 August 1, 2022, shall be subject to redemption prior to maturity, at the option of the Commission, in whole or in part, on any date on or after February 1, 2022 (as may be determined by the Commission), upon at least thirty (30) but not more than sixty (60) days' notice to the Bond Bank, at a redemption price equal to the principal amount of the Amended 2003 AEDA Bonds to be redeemed, plus accrued interest to the redemption date, and without any redemption premium. Section 4. Use of Call Rights Modification Fee. (a) The Controller of the City, as the fiscal officer of the Commission, shall deposit the Call Rights Modification Fee into one or more accounts within the Capital Fund or the Allocation Fund, each as defined and established by the Original Resolution. Such funds deposited therein shall be used by the Commission for the purposes of (i) paying the costs and expenses of one or more capital projects located in, or physically connected to, the Area (as defined in the Original Resolution), all in accordance with the requirements of Indiana law; or (ii) paying interest on the Amended 2003 AEDA Bonds during the three (3) year period commencing on the date of delivery of the Amended 2003 AEDA Bonds. (b) Notwithstanding the foregoing, the Commission may use the Call Rights Modification Fee for such other purposes as may be otherwise permitted by law so long as: (i) the Commission provides an opinion by a nationally recognized firm experienced in matters relating to the tax exemption for interest payable on obligations of states and their instrumentalities and political subdivisions under federal law, which is acceptable to registered owner of the Amended 2003 AEDA Bonds, to the effect that such other purposes will not adversely affect the excludability of interest on the Amended 2003 AEDA Bonds or the Refunding Bond Bank Bonds from gross income for federal tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended; and (ii) the Commission receives the prior written consent from the registered owner of the Amended 2003 AEDA Bonds. Section 5. The Amended Purchase Agreement. The Qualified Entity Purchase Agreement, in substantially the form attached as Exhibit A hereto and made a part hereof (the "Amended Purchase Agreement "), is hereby approved. The President and Secretary of the Commission, together with the Mayor, the Controller or the Clerk of the City or their authorized designees, are each hereby authorized and directed to execute the Amended Purchase Agreement with any and all such changes and revisions as they deem necessary, desirable or appropriate to carry out the intent of this Resolution and the purpose of the 2011 Transaction, and to deliver the Amended Purchase Agreement to the Bond Bank. Section 6. Bond Bank Offering Document / Continuing Disclosure Agreement. Use of information concerning the Commission or the City in any offering materials, including a preliminary official statement or a private placement memorandum (collectively, the "Bond Bank Offering Document ") and distributed in connection with the undertaking of the Refunding Program is hereby authorized, ratified and approved. The President and Secretary of the Commission, together with the Mayor, the Controller or the Clerk of the City or their authorized designees, are each hereby authorized and directed to have prepared and delivered to the Bond Bank any information required for such use and further to deem and determine, if necessary, those portions of the Bond Bank Offering Document, if any, relating to the Commission or the City as near final for purposes of Rule 15c2 -12 of the United States Securities and Exchange 1NDS01 BJB 13017850 4 ILCommission, as amended (the "SEC Rule "). Further, if necessary, the President and Secretary of the Commission, together with the Mayor, the Controller or the Clerk of the City or their authorized designees, are each hereby authorized and directed to execute a continuing disclosure agreement in a form sufficient to allow the underwriters of the Refunding Bond Bank Bonds to comply with the SEC Rule upon being notified by the Bond Bank that the District or the City is an "obligated person" (as defined in the SEC Rule) with respect to the Refunding Bond Bank Bonds. C Section 7. Further Actions. The President of the Commission, the Secretary of the Commission, any other officer of the Commission, together with the Mayor, the Controller or the Clerk of the City, are each hereby authorized and directed, for and on behalf of the District, to execute, attest and seal all such documents, instruments, certificates, closing papers and other papers and do all such acts and things as may be necessary, desirable or appropriate to effect the 2011 Transaction and to carry out the purposes of this Supplemental Resolution and the execution and delivery of the Amended 2003 AEDA Bonds in accordance with the Resolution, including, but not limited to, the execution of any certificates, purchase agreements or other documents necessary to effect the 2011 Transaction, and any and all actions, documents, agreements and certificates heretofore taken or executed in connection with the 2011 Transaction or this Supplemental Resolution, be, and hereby are, ratified and approved. Section 8. Construction with Other Resolutions. This Supplemental Resolution is hereby intended to amend and supplement the Original Resolution, and to the extent of any inconsistencies or conflicts, if any, between any provision or provisions of this Supplemental Resolution and the Original Resolution, the provisions of this Supplemental Resolution shall be controlling and binding. All resolutions or parts of resolutions, except the Original Resolution as supplemented and amended by this Supplemental Resolution, in conflict with the Resolution are hereby repealed. Unless the context otherwise requires and except as supplemented herein, any references in the Original Resolution to the Original 2003 AEDA Bonds shall mean the Amended 2003 AEDA Bonds and any accounts created and maintained by the Commission or the City for the benefit of holders of the Original 2003 AEDA Bonds shall now be maintained, and the funds therein shall now be held, for the benefit of the holders of the Amended 2003 AEDA Bonds. Section 9. Effective Date. This Supplemental Resolution shall be in full force and effect from and after its having been passed by the Commission and signed by the presiding officer. iNDS01 B1B 13017850 5 C9 ADOPTED AND APPROVED at a meeting of the City of South Bend Redevelopment Commission held on the 81h day of November, 2011, in Room 1308 of the County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. ATTEST: By: klia _x, �7 Nancy King, 4retary INDS01 13113 13017850 6 CITY OF SOUTH BEND REDEVELOPMENT COMMISSION By. David A. Varner, Vice President EXHIBIT A r✓ FORM OF AMENDED PURCHASE AGREEMENT A 14 (To be attached hereto) INDSOI BJB 13017850 A -1 L, QUALIFIED ENTITY PURCHASE AGREEMENT Exhibit A This QUALIFIED ENTITY PURCHASE AGREEMENT (the "Purchase Agreement "), dated the day of , 2011, is being entered into by and among the INDIANA BOND BANK, a body corporate and politic (the "Bond Bank "), created pursuant to the provisions of Indiana Code 5 -1.5, as amended (the "Act "), having its principal place of business in the City of Indianapolis, Indiana, the CITY OF SOUTH BEND, a municipality existing under the laws of the State of Indiana (the "City "), and the CITY OF SOUTH BEND REDEVELOPMENT COMMISSION, acting in the name of the City (the "Qualified Entity "). WITNESSETH: WHEREAS, on December 30, 2003, the Qualified Entity, acting in the name of the City, issued two series of its bonds designated as (i) the "City of South Bend, Indiana, Redevelopment District Tax Increment Revenue Bonds, Series 2003 (Airport Economic Development Area)" in the original aggregate principal amount of $14,420,000 (the "Original AEDA Qualified Obligations "), which are payable from the property taxes generated in the Qualified Entity's Airport Economic Development Area and allocated in accordance with Indiana Code 36 -7 -14- 39, as amended, and (ii) the "City of South Bend, Indiana, Redevelopment District Tax Increment Revenue Bonds, Series 2003 (South Bend Central Development Area)" in the original aggregate principal amount of $19,795,000 (the "Original SBCDA Qualified Obligations "), which are payable from the property taxes generated in the Qualified Entity's South Bend Central Allocation Area (South Bend Allocation Area No. 1 A) and allocated in accordance with Indiana Code 36- 7- 14 -39, as amended; to provide funds to refund certain prior obligations of the Qualified Entity and to pay for, certain economic development or redevelopment projects in the respective areas, all pursuant to separate resolutions previously adopted by the Qualified Entity (collectively, the "Original Resolutions "); and WHEREAS, as of the date hereof, the Original AEDA Qualified Obligations are outstanding in the aggregate principal amount of $10,435,000, and the Original SBCDA Qualified Obligations are outstanding in the aggregate principal amount of $18,030,000 (the Original AEDA Qualified Obligations and the Original SBCDA Qualified Obligations, collectively, the "Original Qualified Obligations "); and WHEREAS, pursuant to the terms of each series of the Original Qualified Obligations and the Qualified Entity Purchase Agreement, dated as of December 17, 2003 (the "2003 Purchase Agreement "), by and among the Bond Bank, the City and the Qualified Entity, the Original Qualified Obligations maturing on or after February 1, 2013, are subject to redemption prior to maturity, at the option of the Qualified Entity, in whole or in part, on any date on or after August 1, 2012 (as may be determined by the Qualified Entity), at a redemption price equal to the principal amount of the Original Qualified Obligations to be redeemed, plus accrued interest to the redemption date, and without any redemption premium (collectively, the "Call Rights "); and INDS01 BJB 1301170v2 WHEREAS, the Bond Bank previously issued its Indiana Bond Bank Special Program Bonds, Series 2003 E (South Bend TIF Districts), dated December 30, 2003, in the aggregate principal amount of $36,530;000 (the "Pnor Bond Bank Bonds "), for the purpose of providing funds to purchase the Original Qualified Obligations from the Qualified Entity; and WHEREAS, the Bond Bank has authorized and intends to issue its Indiana Bond Bank Special Program Refunding Bonds, Series 2011 A (South Bend TIF Districts) (the "Refunding Bonds "), pursuant to the Trust Indenture, dated as of 1, 2011 (the "Bond Bank Indenture "), between the Bond Bank and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee "), for the purpose of refunding all or a portion of the Prior Bond Bank Bonds (the "Refunding Program "); and WHEREAS, as a condition to sharing a portion of the economic benefits associated with the Refunding Program with the Qualified Entity, the Bond Bank has requested that the Qualified Entity modify. its Call Rights and evidence the modification of the Call Rights (in exchange for receiving a portion of the economic benefits associated with the Refunding Program) by executing and delivering its Amended Qualified Obligations (as hereinafter defined) and, following the undertaking of the Refunding Program and satisfaction of the other terms and conditions set forth herein, exchanging the Amended Qualified Obligations for the outstanding Original Qualified Obligations; and WHEREAS, the Qualified Entity has duly authorized, pursuant to the Original Resolutions, as supplemented and amended by separate resolutions adopted by the Qualified Entity on November 8, 2011 (the "Supplemental Resolutions ")(the Original Resolutions and the Supplemental Resolutions, collectively, the "Resolutions "), the modification of the Call Rights and, in order to evidence the modification of the Call Rights, the execution and delivery of. (i) its amended bonds designated as the "City of South Bend, Indiana, Redevelopment District Amended Tax Increment Revenue Bonds, Series 2003 (Airport Economic Development Area)," in the original aggregate principal amount not to exceed the aggregate outstanding principal amount of the Original AEDA Qualified Obligations (as so amended, the "Amended AEDA Qualified Obligations "); and (ii) its- amended bonds designated as the "City of South Bend, Indiana, Redevelopment District Amended Tax Increment Revenue Bonds, Series 2003 (South Bend Central Development Area), " in the original aggregate principal amount not to exceed the aggregate outstanding principal amount of the Original SBCDA Qualified Obligations (as so amended, the "Amended SBCDA Qualified Obligations ") (the Amended AEDA Qualified Obligations and the Amended SBCDA Qualified Obligations, collectively, the "Amended Qualified Obligations "'). NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the Bond Bank, the City and the Qualified Entity agree as follows: Section 1. (a) In exchange for modifying the Call Rights with respect to the Original AEDA Qualified Obligations, the Bond Bank hereby agrees to pay the Qualified Entity an aggregate amount equal to $ (the "AEDA Call Rights Modification Fee "). The Bond Bank shall pay, or provide written directions to the Trustee to pay on behalf of the (00� Bond Bank, such amount to the Qualified Entity by wire transfer on the date of issuance of the 2 INDS01 BJB 1301170v2 Bond Bank's Refunding Bonds, upon the written directions provided by the Qualified Entity to the Bond Bank or the Trustee, or by such other method as is acceptable to the Qualified Entity. (b) In exchange for modifying the Call Rights with respect to the Original SBCDA Qualified Obligations, the Bond Bank hereby agrees to pay the Qualified Entity an aggregate amount equal to $ . (the " SBCDA Call Rights Modification Fee "). The Bond Bank shall pay,, or provide written directions to the Trustee to pay on behalf of the Bond Bank, such amount to the Qualified Entity by wire transfer on the date of issuance of the Bond Bank's .Refunding Bonds, upon the written directions, provided by the Qualified Entity to the Bond Bank ,or the Trustee, or by such other method as is acceptable to the Qualified Entity. (c) In order to evidence such modification of the Call Rights, the Qualified Entity hereby agrees to execute and deliver the. Amended Qualified Obligations and to exchange the Amended Qualified Obligations for all of the Original Qualified Obligations, respectively, which are outstanding on the date hereof. Upon the execution and delivery of the Amended Qualified Obligations, the Bond Bank hereby agrees that it shall cancel and return all of the Original . Qualified Obligations to the Qualified Entity which are outstanding on the date hereof. (d) The parties hereby expressly agree and acknowledge that the execution and delivery of the Amended Qualified Obligations in exchange for the return of all of the Original Qualified Obligations outstanding on the date hereof shall not constitute, nor shall this Purchase Agreement or the transaction hereby contemplated ever be construed to constitute, a re- issuance of the Original Qualified Obligations, in whole or in part, for purposes of the laws of the State. (e) Notwithstanding anything in the Original Resolutions, the 2003 Purchase Agreement or the Original Qualified Obligations to the contrary, the Amended Qualified Obligations maturing on or before February 1, 2022, shall not be subject to optional redemption prior to maturity. The Amended Qualified Obligations maturing on or after August, 1, 2022, shall be subject to redemption prior to maturity, at the option of the Qualified Entity, in whole or in part on any date, on any date on or after February 1, 2022 (as may be determined by the Qualified Entity), upon at least thirty (30) but not more than sixty (60) days' notice to the Bond Bank, at a redemption price equal to the principal amount of the Amended Qualified Obligations to be redeemed, plus accrued interest to the redemption date, and without any redemption premium; provided, however, the City and the Qualified Entity agree that the Amended Qualified Obligations may not be redeemed prior to maturity thereof unless and until the conditions set forth .in Section 16 of this Purchase Agreement are satisfied. (f) Except as otherwise provided in this Purchase Agreement and the Supplemental Resolutions, the terms, conditions and characteristics of the Amended Qualified Obligations shall be the same as those of the Original Qualified Obligations. Section 2. If the Qualified Entity fails to pay the principal of and interest on the Amended Qualified Obligations when due, the Qualified Entity agrees to reimburse the Bond Bank for the costs of collecting the payments on such Amended Qualified Obligations. Section 3. The Qualified Entity has taken, or will take, all proceedings required by law to enable it to modify the Call Rights and execute and deliver the Amended Qualified 3 INDS01 BJB 1301170v2 IL Obligations to the Bond Bank pursuant to the tenns hereof The City has taken, or will take, all proceedings required by law to enable it to execute and deliver the Amended Qualified Obligations and all other documents which are necessary for the Bond Bank to undertake its Refunding Program. The parties to this Agreement acknowledge that the Qualified Entity's obligation to modify the Call Rights and to execute and deliver the Amended Qualified Obligations and the Bond Bank's obligation to pay the AEDA Call Rights Modification Fee and the SBCDA Call Rights Modification Fee (collectively, the "Call Rights Modification Fee ") and return the Prior Qualified Obligations, all as described herein, are expressly contingent upon the Qualified Entity taking all steps and receiving all approvals required by laws of the State, if any, to modify the Call Rights, to execute and deliver the Amended Qualified Obligations and to execute all other documents which are necessary for the Bond Bank to undertake its Refunding Program. Section 4. Subject to Section 8, the Qualified Entity agrees to pay the Bond Bank, on each interest payment date for the Amended Qualified Obligations, reasonable fees and charges attributable to the administration of the Amended Qualified Obligations acquired by the Bond Bank. To the extent the Amended Qualified Obligations are subject to rebate, the Qualified Entity agrees to pay the Bond Bank for prompt payment to, or to evidence to the Bond Bank the payment to, the United States of the rebate determined by the Qualified Entity to result from the investment of moneys held by the Qualified Entity that constitute gross proceeds of the Original Qualified Obligations or the Amended Qualified Obligations. The Qualified Entity agrees to provide documentation to the Bond Bank relative to the computation of the rebate and payment of such rebate when required. Section 5. Simultaneously with the delivery to the Bond Bank of the Amended Qualified Obligations, which shall be substantially in the forms set forth in -the respective Supplemental Resolutions., and each registered in the name of the Bond Bank; the Qualified Entity shall furnish to the Bond Bank: (a) transcripts of the proceedings related to the respective Amended, Qualified Obligations; (b) the unqualified approving opinion of Baker & Daniels LLP, bond counsel to the Qualified Entity, in form satisfactory to the Bond Bank, which shall set forth, among other things, that (1) the Qualified. Entity is duly organized and validly existing under the laws of the State with the right and power to execute and deliver and to perform its obligations under the Purchase Agreement and its Amended SBCDA Qualified Obligations; (ii) the Purchase Agreement and the Amended SBCDA Qualified Obligations, together with the performance by the Qualified Entity of its respective obligations thereunder, have been duly authorized, executed and delivered by the Qualified Entity and, assuming the due authorization, execution and delivery thereof by the other parties thereto, each constitutes the legal, valid and binding agreement of the Qualified Entity, enforceable in accordance with its respective terms; and (iii) the interest on the Amended SBCDA Qualified Obligations is excludable from gross income for federal income tax purposes under Section 103 of the Code (under existing law); subject to such enforcement limitations customarily contained in such opinions; (c) the unqualified approving opinion of Baker & Daniels LLP, bond counsel toJhe Qualified Entity, in form satisfactory to the Bond Bank, which shall set forth, among other things, that (i) the Qualified Entity is duly organized and validly existing under the laws of the State with the right and power to execute and deliver and to perform its obligations under the Purchase Agreement and its Amended AEDA Qualified Obligations; (ii) the Purchase Agreement and the Amended AEDA Qualified Obligations, together with the performance by the Qualified Entity of its 4 INDS01 BJB 1301170x2 IL respective obligations thereunder, have been duly authorized, executed and delivered by the Qualified Entity and, assuming the due authorization, execution and delivery thereof by the other parties. thereto, each constitutes the legal, valid and binding agreement of the Qualified Entity, enforceable in accordance with its respective terns; and (iii) the interest on the Amended AEDA Qualified Obligations. is excludable from gross income for federal income tax purposes under Section 103 of the Code (under existing law); subject to such enforcement limitations customarily contained in such opinions. The Qualified Entity shall arrange for and bear the cost of such opinions from the Qualified Entity's bond counsel. Section 6.. The Qualified Entity, the City and the Bond Bank agree that the Amended Qualified Obligations and the payments to be made thereon may be pledged or assigned by the Bond Bank to the Trustee under and pursuant to the Bond Bank Indenture. Section 7. Each of the Qualified Entity and the City agrees to furnish to the Bond Bank, as long as any of the Amended Qualified Obligations remain outstanding, annual financial reports, audit reports and such other financial information as is reasonably requested by the Bond Bank, including information which evidences their compliance with certain covenants which they have made regarding vari ous actions and conditions necessary to preserve the tax- exempt status of interest paid on the Amended Qualified Obligations. Section 8. If the Bond Bank determines to sell all or part of the Amended Qualified Obligations, it agrees to pay or reimburse the Qualified Entity and the City for all costs associated therewith including the printing of bonds, obtaining ratings therefor and providing ILservices of a registrar and paying agent therefor. Section 9. 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 10. The parties to this Agreement acknowledge that the Qualified Entity's obligation to modify the Call Rights and execute and deliver the Amended Qualified Obligations, and the Bond Bank's obligation to pay the Call Rights Modification Fee and to cancel and return all of the Original Qualified Obligations outstanding as of the date hereof, is expressly contingent upon the authorization and undertaking of the Refunding Program. In the event the Bond Bank determines not to authorize or undertake its Refunding Program. , the provisions of . this Agreement shall terminate upon notice by the Bond Bank to the Qualified Entity and the City of such determination. . Section 11. In the event the Qualified Entity fails to modify the Call, Rights and to execute and deliver all of the Amended Qualified Obligations to the Bond Bank in accordance with Section '1 hereof for any reason within the control of the Qualified Entity or the City, the Qualified Entity or the City shall, on demand, pay to the Bond Bank an amount equal to all costs, expenses (including attorney's fees) and consequential damages occasioned by the failure of the Qualified Entity to modify the Call Rights and to execute and deliver the Amended Qualified Obligations, all in accordance with Section 1 hereof. 5 INDS01 BJB 1301170v2 Section 12. The Qualified Entity hereby acknowledges that it has been provided a IL copy of the official statement of the Bond Bank related to the Refunding Program, including the appendices thereto (the "Official Statement "). On or prior to the delivery date of the Amended Qualified Obligations pursuant to the Refunding Program,. an authorized officer of the Qualified Entity will deliver a certificate, dated as of the delivery date of the Refunding Bonds pursuant to the Refunding Program (the "Closing Date "), to the effect that (a) any'statements pertaining to the Qualified Entity, the Original Qualified Obligations (if any) or the Amended Qualified Obligations made in the Official Statement (i) as of the date of the Official Statement, did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and (ii) as of the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading, and (b) that there has been no material adverse change in the financial condition and affairs of the Qualified Entity during the period from the date of the Official Statement to the Closing Date, which was not disclosed in or contemplated by the Official Statement. The portions, if any, of the preliminary Official Statement summarizing the Qualified Entity the City, the Original Qualified Obligations or the Amended Qualified Obligations are deemed final by the Qualified Entity and the City for purposes of Rule 15c2 -12 of the Securities and Exchange Commission (the "SEC Rule "), as of this date. Section 13. The Qualified Entity hereby agrees, for so long as any of the Amended Qualified Obligations are outstanding, to execute a continuing disclosure agreement in a form sufficient to allow the underwriter of the Refunding Bonds to comply with the SEC Rule upon notice from the Bond Bank that the Qualified Entity constitutes an "obligated person," as defined in the SEC Rule. Section 14. 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 Bond Bank, the City and the Qualified Entity 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 15. No waiver by the Bond Bank, the City or the Qualified Entity 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 16. In the event the Qualified Entity or the City, or any entity acting on behalf of the Qualified Entity or the City; adopts an ordinance or resolution or otherwise makes a determination to refund or redeem all or any portion of the Amended Qualified Obligations prior to the maturity thereof, either the Qualified Entity or the City shall, within five (5) days of the adoption of the ordinance or resolution or making such determination, provide notice to the Bond Bank of its election to refund or redeem the Amended Qualified Obligations; provided, however, LI each of the Qualified Entity and the City agrees not use any available funds or to issue any obligations, or allow any obligations to be issued for or on behalf of the Qualified Entity or the 6 INDS01 BJB 1301170v2 L� City, the proceeds of which will be used in whole or in part to refund or redeem all or any portion of the Amended Qualified Obligations, unless the following conditions shall have been satisfied: (i) the Qualified Entity or the City provides the Bond Bank with the information necessary for the Bond Bank to prepare a Cash Flow Certificate (as defined in the Bond Bank Indenture); and (ii) that Cash Flow Certificate shows that such refunding or redemption will not have an adverse effect on the Bond Bank's ability to pay debt service on the Refunding Bonds of the Bond Bank. Section 17. This Purchase Agreement merges and supersedes all prior negotiations, representations and agreements between the Bond Bank and the Qualified Entity relating to the subject matter hereof and, together with the Resolution and the Amended Qualified Obligations, constitutes the. entire agreement between the Bond Bank and the Qualified Entity with respect hereto. INDS01 B1B 1301170v2 7 A IN WITNESS WHEREOF, we have hereunto set our hands as of the day and year first above written. INDIANA BOND BANK By: Richard E. Mourdock, Chairperson Ex Officio Attest: Lisa Cottingham, Executive Director Attest: Nancy King, Secretary Attest: John Voorde, City Clerk 8 INDS01 131B 1301170v2 CITY OF SOUTH BEND REDEVELOPMENT COMMISSION By: Marcia I. Jones, President CITY OF SOUTH BEND, INDIANA Stephen J. Luecke, Mayor