HomeMy WebLinkAbout3D Trust Indenture - South Bend - (Public Library Project) 2018
TRUST INDENTURE
Between
CITY OF SOUTH BEND, INDIANA
And
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Dated ____________ 1, 20__
Re:
$4,800,000
CITY OF SOUTH BEND, INDIANA
ECONOMIC DEVELOPMENT TAX INCREMENT REVENUE BONDS, SERIES 20__
(COMMUNITY EDUCATION CENTER PROJECT)
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Table of Contents
Page
ARTICLE I. DEFINITIONS .............................................................................................. 3
Section 1.1 Terms Defined.................................................................................... 3
Section 1.2 Rules of Interpretation ....................................................................... 8
ARTICLE II THE BONDS ............................................................................................... 10
Section 2.1 Authorized Amount of Bonds .......................................................... 10
Section 2.2 Issuance of the Bonds ...................................................................... 10
Section 2.3 Payment of Principal and Interest on the Bonds .............................. 10
Section 2.4 Execution; Limited Obligation......................................................... 10
Section 2.5 Authentication .................................................................................. 11
Section 2.6 Delivery of Series 20__ Bonds ........................................................ 11
Section 2.7 Mutilated, Lost, Stolen or Destroyed Bonds .................................... 12
Section 2.8 Registration and Exchange of Bonds: Persons Treated as
Owners ............................................................................................. 12
Section 2.9 Provisions for Issuance of Additional or Refunding Bonds ............ 13
Section 2.10 Form of Additional Bonds ............................................................... 14
Section 2.11 Book-Entry System. ......................................................................... 14
ARTICLE III APPLICATION OF SERIES 20__ BOND PROCEEDS AND OTHER
FUNDS ............................................................................................................................. 18
Section 3.1 Deposit of Series 20__ Bond Proceeds. ........................................... 18
Section 3.2 Deposit of Proceeds of Additional Bonds. ....................................... 18
ARTICLE IV REVENUE AND FUNDS ......................................................................... 19
Section 4.1 Source of Payment of the Bonds ...................................................... 19
Section 4.2 Creation of Funds ............................................................................. 19
Section 4.3 Bond Fund. ....................................................................................... 19
Section 4.4 Deposit of Pledged Revenues .......................................................... 20
Section 4.5 Construction Fund ............................................................................ 20
Section 4.6 Expense Fund. .................................................................................. 21
Section 4.7 Debt Service Reserve Fund .............................................................. 21
Section 4.8 Rebate Fund ..................................................................................... 22
Section 4.9 Trust Funds ...................................................................................... 23
Section 4.10 Investment ........................................................................................ 23
ARTICLE V REDEMPTION OF BONDS PRIOR TO MATURITY ............................. 24
Section 5.1 Redemption Dates and Prices .......................................................... 24
Section 5.2 Notice to Trustee of Intent to Redeem ............................................. 25
Section 5.3 Notice to Bondholders of Redemption............................................. 25
Section 5.4 Cancellation ..................................................................................... 26
Section 5.5 Redemption Payments...................................................................... 26
Section 5.6 Partial Redemption of Bonds ........................................................... 26
ARTICLE VI GENERAL COVENANTS........................................................................ 27
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Section 6.1 Payment of Principal and Interest .................................................... 27
Section 6.2 Performance of Covenants. .............................................................. 27
Section 6.3 Instruments of Further Assurance .................................................... 28
Section 6.4 Filing of Indenture and Security Instruments .................................. 28
Section 6.5 List of Bondholders .......................................................................... 28
Section 6.6 Investment of Funds. ........................................................................ 28
Section 6.7 Non-presentment of Bonds .............................................................. 29
Section 6.8 Destruction of Bonds ....................................................................... 29
Section 6.9 Issuer Indemnity ............................................................................... 29
Section 6.10 Tax Covenants; Issuance of Taxable Bonds. ................................... 29
ARTICLE VII DEFAULTS AND REMEDIES ............................................................... 31
Section 7.1 Events of Default ............................................................................. 31
Section 7.2 Remedies: Rights of Bondholders .................................................... 31
Section 7.3 Right of Bondholders to Direct Proceedings ................................... 32
Section 7.4 Application of Moneys..................................................................... 32
Section 7.5 Remedies Vested In Trustee ............................................................ 33
Section 7.6 Rights and Remedies of Bondholders .............................................. 33
Section 7.7 Termination of Proceedings ............................................................. 33
Section 7.8 Waivers of Events of Default ........................................................... 34
ARTICLE VIII THE TRUSTEE ...................................................................................... 35
Section 8.1 Acceptance of the Trusts .................................................................. 35
Section 8.2 Fees, Charges and Expenses of the Trustee ..................................... 37
Section 8.3 Notice to Bondholders if Default Occurs ......................................... 37
Section 8.4 Intervention by Trustee .................................................................... 38
Section 8.5 Successor Trustee ............................................................................. 38
Section 8.6 Resignation by the Trustee ............................................................... 38
Section 8.7 Removal of the Trustee .................................................................... 38
Section 8.8 Appointment of Successor Trustee by the Bondholders;
Temporary Trustee ........................................................................... 38
Section 8.9 Concerning Any Successor Trustees ................................................ 39
Section 8.10 Trustee Protected in Relying Upon Resolutions, etc. ...................... 39
Section 8.11 Conditions for Trustee Action.......................................................... 39
Section 8.12 Limitations on Trustee Duties .......................................................... 40
ARTICLE IX SUPPLEMENTAL INDENTURES .......................................................... 41
Section 9.1 Supplemental Indentures Not Requiring Consent of
Bondholders ..................................................................................... 41
Section 9.2 Supplemental Indentures Requiring Consent of Bondholders ......... 41
Section 9.3 Trustee Reliance ............................................................................... 42
ARTICLE X MISCELLANEOUS ................................................................................... 43
Section 10.1 Satisfaction and Discharge ............................................................... 43
Section 10.2 Defeasance of Bonds ........................................................................ 43
Section 10.3 Application of Trust Money ............................................................. 44
Section 10.4 Consents, etc., of Bondholders ......................................................... 44
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Section 10.5 Limitation of Rights ......................................................................... 45
Section 10.6 Severability ...................................................................................... 45
Section 10.7 Notices ............................................................................................. 45
Section 10.8 Counterparts ..................................................................................... 46
Section 10.9 Applicable Law ................................................................................ 46
Section 10.10 Immunity of Officers and Directors ................................................. 46
Section 10.11 Payments or Performance Due on Saturdays, Sundays and
Holidays ........................................................................................... 46
Section 10.12 Force Majeure .................................................................................. 47
EXHIBIT A FORM OF SERIES 20__ BONDS A-1
EXHIBIT B FORM OF DISBURSEMENT REQUEST FROM THE
CONSTRUCTION FUND B-1
EXHIBIT C COSTS OF ISSUANCE C-1
TRUST INDENTURE
THIS TRUST INDENTURE dated as of ___________ 1, 20__, by and between the
CITY OF SOUTH BEND, INDIANA (the “Issuer” or “City”), a municipal Public Library
organized and existing under the laws of the State of Indiana, and __________________, a
banking association duly organized and authorized to accept and execute trusts of the character
herein, having a corporate trust office in the City of Indianapolis, Indiana, as trustee (the
“Trustee”);
WITNESSETH:
WHEREAS, IC 36-7-11.9 and 12, as supplemented and amended, authorize and
empower the Issuer to issue revenue bonds and to use 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, pursuant to this Indenture and the Financing Agreement dated as of
__________ 1, 20__ (the “Financing Agreement”), by and between the Issuer and the St. Joseph
County Public Library, St. Joseph County, Indiana (the “Public Library”), and in accordance
with the Act, the Issuer intends to issue its City of South Bend, Indiana, Economic Development
Tax Increment Revenue Bonds, Series 20__ (Community Education Center Project) in the
aggregate principal amount of $___________ (the “Series 20__ Bonds”), for the purpose of
providing funds to (a) finance the costs of the Project (defined herein), (b) fund the Debt Service
Reserve Fund (defined herein) and (c) pay Costs of Issuance (defined herein) related to the
Series 20__ Bonds; 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 South
Bend Economic Development Commission (the “Economic Development Commission”) held a
public hearing on behalf of the Issuer, and, upon finding that the Project and the proposed
financing of a portion of the costs thereof (i) will create or retain employment opportunities in
and near the City; (ii) will benefit the health and general welfare of the citizens of the City and
the State of Indiana; and (iii) will comply with the purposes and provisions of the Act, adopted a
resolution approving the proposed financing; and
WHEREAS, the Act provides that the Series 20__ Bonds may be secured by a trust
indenture between the Issuer and a corporate trustee; and
WHEREAS, pursuant to this Indenture, the Series 20__ Bonds shall be payable solely
from payments derived from Pledged Revenues (defined herein) and proceeds from the Series
20__ Bonds; and
WHEREAS, the execution and delivery of this Trust Indenture, and the issuance of the
Series 20__ Bonds hereunder, have been in all respects duly and validly authorized by an
ordinance duly passed and approved by the Common Council of the Issuer; and
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WHEREAS, IC 36-7-14 provides that a redevelopment commission of an issuer may
pledge certain incremental property taxes (defined herein as Pledged Revenues) to pay, in whole
or in part, amounts due on the Series 20__ Bonds; and
WHEREAS, the Redevelopment Commission has, by resolution, dedicated and pledged
to the Issuer, the Pledged Revenues to be applied to the repayment of the Series 20__ Bonds; and
WHEREAS, the Bonds and the Trustee’s certificate of authentication to be endorsed
thereon are all to be substantially in the form provided in this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to secure the
payment of the principal of 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 said 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, real
and personal hereinafter described (the “Trust Estate”):
GRANTING CLAUSES
DIVISION I
All right, title and interest of the Issuer in and to the Pledged Revenues (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);
DIVISION II
All moneys and securities from time to time held by the Trustee under the terms of this
Indenture (except moneys or Qualified Investments deposited with the Trustee pursuant to
Section 10.1 hereof and except moneys held in the Rebate Fund) and any and all other real or
personal property of every name and nature from time to time hereafter by delivery or by writing
of any kind conveyed, mortgaged, pledged, assigned, or transferred as and for additional security
hereunder by the Issuer or by anyone on its behalf, or with their written consent to the Trustee
which is hereby authorized to receive any and all such property at any and all times and to hold
and apply the same subject to the terms hereof;
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 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 equal and ratable benefit and security of all and singular the holders of all
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Bonds issued hereunder, without preference, priority or distinction as to lien or otherwise, except
as otherwise hereinafter provided, of any one Bond or as between principal and interest, 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, are as follows:
(End of Granting Clauses)
ARTICLE I.
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:
“Act” means, collectively, Indiana Code 36-7-11.9 and 36-7-12, as supplemented and
amended.
“Additional Bonds” means bonds issued pursuant to the Ordinance and Section 2.9
hereof and any Supplemental Indenture and includes Refunding Bonds.
“Affidavit of Completion” means the affidavit to be filed by or on behalf of the Issuer
with the Trustee relating to the Project stating that the Project is substantially completed in
accordance with the terms of the Financing Agreement and is ready for use and occupancy.
“Allocation Area” means the River West Economic Development Area Allocation Area
previously established by the Redevelopment Commission in accordance with IC 36-7-14-39 for
the purposes of capturing incremental ad valorem real property taxes levied and collected on all
taxable property in such allocation area.
“Allocation Fund” means the River West Economic Development Area Allocation Fund
established under IC 36-7-14 for the purpose of allocating and depositing the Pledged Revenues
collected in the Allocation Area.
“Annual Fees” means all of the Issuer’s expenses in carrying out and administering the
Bonds issued pursuant to this Indenture and shall include, without limiting the generality of the
foregoing, legal, accounting, management, consulting and banking services and expenses, fees
and expenses of the Trustee and the Registrar and Paying Agent, costs of verifications required
hereunder, and any other costs permitted under the Act, and rebates, if any, which in the opinion
of Bond Counsel are required to be made under the Code in order to preserve or protect the
exclusion from gross income for federal tax purposes of interest on the Bonds, all to the extent
properly allocable to the Bonds.
“Authorized Representative” means (i) with respect to the Issuer, the Mayor, the City
Clerk, the City Controller or the Deputy City Controller (or such other officer as the Issuer shall
notify the Public Library and the Trustee in writing as being an Authorized Representative, with
evidence of such authority); and (ii) with respect to the Public Library, the Executive Director or
the President of the Public Library (or such other officer as the Public Library shall notify the
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Issuer and the Trustee in writing as being an Authorized Representative, with evidence of such
authority).
“Bondholders” means registered owners of the Bonds.
“Bonds” means any Bonds issued pursuant to this Indenture, including the Series 20__
Bonds and any Additional Bonds.
“Bond Counsel” means Counsel that is nationally recognized in the area of municipal
law.
“Bond Fund” means the Bond Fund established by Section 4.2 of this Indenture.
“Bond Ordinance” means Ordinance No. ________, adopted by the Common Council of
the Issuer on ______________, 2018, authorizing and approving the issuance and sale of the
Series 20__ Bonds, pledging the Pledged Revenues to the payment of the principal of and
interest on the Series 20__ Bonds, and approving the forms of the Financing Agreement, this
Indenture and related matters.
“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in the city in which the principal corporate trust office of the Trustee is
located or in New York City are not open for business.
“Clerk” means the Clerk of the Issuer.
“Code” means the Internal Revenue Code of 1986, as amended, the regulations (whether
proposed, temporary, or final) promulgated thereunder or the statutory predecessor thereof, and
any amendments of, or successor provisions to, the foregoing and any official rulings,
announcements, notices, procedures, and judicial determinations, regarding any of the foregoing.
“Common Council” means the Common Council of the Issuer.
“Construction Fund” means the Construction Fund created and established pursuant to
Section 4.2 of this Indenture.
“Costs of Issuance” means financial, legal, accounting, charges and expenses, and all
other fees, charges and expenses incurred in connection with the authorization, sale, issuance and
delivery of the Series 20__ Bonds, including, without limitation, the fees and expenses of the
City, counsel to the City, bond counsel, counsel to the Public Library, if any, the municipal
advisor to the City, the Trustee, and any rating agency rating the Series 20__ Bonds.
“Counsel” means an attorney duly admitted to practice law before the highest court of
any state and approved by the Issuer.
“Credit Provider” means the issuer of any Debt Service Reserve Fund Credit Facility and
its successor in such capacity and their assigns. To qualify under this Indenture, the Credit
Provider providing such Debt Service Reserve Fund Credit Facility shall be an insurer whose
municipal bond insurance policies insuring the payment, when due, of the principal of and
interest on municipal bond issues results in such issues being rated, at the time of issuance of
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such Debt Service Fund Credit Facility, in a Rating Category that is at least as high as the rating
assigned to the Bonds (to which Debt Service Fund Credit Facility relates) by the Rating Agency
or Rating Agencies then maintaining a rating on the Bonds.
“Debt Service Reserve Fund” means the Debt Service Reserve Fund created and
established pursuant to Section 4.2 of this Indenture.
“Debt Service Reserve Fund Credit Facility” means any letter of credit, revolving credit
agreement, surety bond, insurance policy or other agreement or instrument issued or provided by
a Credit Provider, (i) which may be deposited in a reserve account in the Debt Service Reserve
Fund in lieu of or in partial substitution for cash or Qualified Investments to be on deposit
therein, and (ii) which shall be payable (upon the giving of notice as required thereunder) on any
due date on which moneys will be required to be withdrawn from such reserve fund in which
such Debt Service Reserve Credit Facility is deposited and applied to the payment of the
principal of or interest on any Bonds.
“Debt Service Reserve Fund Reimbursement Obligation” shall mean any obligation to
reimburse the Credit Provider of any Debt Service Reserve Fund Credit Facility for any payment
made under such Debt Service Reserve Fund Credit Facility or any other obligation to repay any
amounts (including, but not limited to, fees or additional interest) to the Credit Provider.
“Debt Service Reserve Requirement” means an amount equal to but not in excess of the
least of (i) the maximum annual principal and interest payments on the Bonds; (ii) 10% of the
par amount of the Bonds; or (iii) 125% of the average annual principal and interest on the Bonds.
“Depository Company” or “Depository” means The Depository Trust Company, New
York, New York, and its successors and assigns, including any surviving, resulting or transferee
Public Library, or any successor Public Library that may be appointed in a manner consistent
with this Indenture and shall include any direct or indirect participants of The Depository Trust
Company.
“District” means the City of South Bend Redevelopment District.
“Economic Development Commission” means the South Bend Economic Development
Commission.
“Event of Default” means those events of default specified in and defined by Section 7.1
hereof.
“Expense Fund” means the Expense Fund created and established pursuant to Section 4.2
of this Indenture.
“Financing Agreement” means the Financing Agreement, dated as of ________ 1, 20__,
between the Public Library and the Issuer and all amendments and supplements thereto. The
Issuer has delivered a copy of such Financing Agreement to the Trustee.
“Governmental Obligations” means bonds, notes, certificates of indebtedness, treasury
bills or other securities constituting 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
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States of America or any agency or instrumentally thereof when such obligations are backed by
the full faith and credit of the United States of America.
“Indenture” means this Indenture as originally executed or as it may from time to time be
amended or supplemented pursuant to Article IX.
“Interest Payment Date” means, with respect to any Bonds, each February 1 and August
1, commencing _________ 1, 20__.
“Issuer” or “City” means the City of South Bend, Indiana, a municipal Public Library
organized and validly existing under the laws of the State.
“Net Proceeds” means the proceeds received from the sale of Series 20__ Bonds less any
underwriting or other discount.
“Opinion of Bond Counsel” means a written opinion of Bond Counsel which opinion is
acceptable to the Issuer and the Trustee.
“Paying Agent” shall mean any bank or trust company at which principal of the Bonds is
payable, which initially is ______________________, in _________, Indiana.
“Pledged Revenues” means the property tax proceeds received by the Redevelopment
Commission generated by parcels in the Allocation Area and pledged to the Issuer pursuant to
the TIF Pledge Resolution which proceeds are derived from the assessed valuation of real
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 execution of this Indenture.
“Project” means the construction and equipping of an approximately 38,000 square foot
building for use as a community and education center to provide new and expanded flexible
spaces for community meetings and training, events, and conferences and a larger auditorium to
meet increasing demand for program space and allow for a more diverse range of programs and
community events, and any other projects and improvements related thereto.
“Public Library” shall mean the St. Joseph County Public Library, St. Joseph County,
Indiana.
“Qualified Investments” shall mean any of the following to the extent permitted by law:
(i) Governmental Obligations; (ii) money market funds, which may be funds of the Trustee, the
assets of which are obligations of or guaranteed by the United States of America and which
funds are rated at the time of purchase “AAAm-G” or higher by Standard & Poor’s Ratings
Services, Inc. and/or “Aaa” by Moody’s Investors Service, Inc.; (iii) bonds, debentures, notes or
other evidence of indebtedness issued or guaranteed by any of the following federal agencies:
Export-Import Bank, Farmers Home Administration, Federal Financing Bank, Federal Housing
Administration, Government National Mortgage Association, Maritime Administration, Public
Housing Authorities, Banks for Cooperatives, Federal Farm Credit Banks, Federal Intermediate
Credit Bank, Federal Home Loan Bank and Federal Land Bank; (iv) certificates of deposit,
savings accounts, deposit accounts or depository receipts of a bank, savings and loan
associations and mutual savings banks, including the Trustee, each fully insured by the Federal
Deposit Insurance Public Library; (v) bankers’ acceptances, savings accounts, deposit accounts
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or certificates of deposit of commercial banks or savings and loan associations, including the
Trustee, which mature not more than one year after the date of purchase; provided the banks or
savings and loan associations (rather than their holding companies) are rated for unsecured debt
at the time of purchase of the investments in the two highest full classifications established by
Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services, Inc.; (vi) U.S. dollar
denominated deposit accounts or commercial paper rated at the time of purchase in the single
highest full classification by Moody’s Investors Service, Inc. and Standard & Poor’s Ratings
Services, Inc. and which matures not more than 270 days after the date of purchase; (vii)
investment agreements fully and properly secured at all times by collateral security described in
(i), (ii) or (iii) above or issued by entities rated in the single highest full classification by
Moody’s Investors Service and Standard & Poor’s Ratings Services, Inc. when such agreement
was entered into; and (viii) repurchase agreements with any bank or trust company organized
under the laws of any state of the United States of America or any national banking association
(including the Trustee) or government bond dealer reporting to, trading with, and recognized as a
primary dealer by the Federal Reserve Bank of New York, which agreement is secured by any
one or more of the securities described in clauses (i), (iii) or (iv) above; provided, underlying
securities are required by the repurchase agreement to be continuously maintained at a market
value not less than the amount so invested.
“Rating Agency” or “Rating Agencies” means Fitch, S&P or Moody’s, according to
which of such rating agencies then rates a Bond; and provided that, if none of such rating
agencies then rates a Bond, the term “Rating Agency” or “Rating Agencies” shall refer to any
national rating agency (if any) that provides such rating.
“Rating Category” means one of the generic rating categories of the applicable Rating
Agency, without regard to any refinements or gradations of such generic rating category by
numerical or other modifier.
“Record Date” means the fifteenth day of the month immediately preceding any Interest
Payment Date.
“Redevelopment Commission” means the South Bend Redevelopment Commission.
“Refunding Bonds” means Additional Bonds issued pursuant to Section 2.9 hereof and
any Supplemental Indenture for the purpose of refunding any Bonds which are outstanding
hereunder.
“Registrar” means initially U.S. Bank National Association, in Indianapolis, Indiana, a
national banking association organized and existing under the laws of the United States of
America or any successor thereto.
“Requisite Bondholders” means the holders of 66-2/3% in aggregate principal amount of
Bonds.
“River West Economic Development Area” means the economic development area
within the District previously established by the Redevelopment Commission in accordance with
IC 36-7-14.
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“Series of Bonds” or “Bonds of a Series” or “Series” or words of similar meaning means
any Series of Bonds authorized by this Indenture or by a Supplemental Indenture.
“Series 20__ Bonds” means the City of South Bend, Indiana, Economic Development
Tax Increment Revenue Bonds, Series 20__ (Community Education Center Project), dated
________ __, 20__, issued in the aggregate principal amount of $___________, authorized
pursuant to Section 2.1 hereof.
“Series 20__ Credit Provider means Municipal Assurance Corp. which constitutes a
Credit Provider (as defined in this Indenture).
“Series 20__ Debt Service Reserve Fund Credit Facility” means the municipal bond debt
service reserve insurance policy provided by the Series 20__ Credit Provider for deposit into the
Debt Service Reserve Fund to satisfy the Debt Service Reserve Requirement with respect
thereto. The Series 20__ Debt Service Reserve Fund Credit Facility constitutes a Debt Service
Reserve Fund Credit Facility (as such term is defined and used in this Indenture) at the time of
issuance thereof.
“State” means the State of Indiana.
“TIF Pledge Resolution” means Resolution No. ______, adopted by the Redevelopment
Commission on November 8, 2018, pledging the Pledged Revenues to the payment of the Series
20__ Bonds
“Trustee” means U.S. Bank National Association, a national banking association with a
designated trust office in the City of Indianapolis, Indiana, and any successor trustee or co-
trustee.
“Trust Estate” shall have the meaning ascribed to such term in the Granting Clauses of
this Indenture.
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.
(d) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
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(e) Any terms not defined herein but defined in the Bond Ordinance or 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.
(g) The word “including” and any variation thereof means “including, without
limitation” and must not be construed to limit any general statement that it follows to the specific
or similar items or matters immediately following it.
(h) Where a term is defined, another part of speech or grammatical form of that term
shall have a corresponding meaning.
(End of Article I)
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ARTICLE II
THE BONDS
Section 2.1 Authorized Amount of Bonds. No Bonds may be issued under the
provisions of this Indenture except in accordance with this Article. The principal amount of the
Series 20__ Bonds (other than Bonds issued in substitution therefor pursuant to Section 2.8
hereof) that may be issued is hereby expressly limited to $4,800,000.
Section 2.2 Issuance of the Bonds.
(a) The Series 20__ Bonds shall be designated “City of South Bend, Indiana,
Economic Development Tax Increment Revenue Bonds, Series 20__ (Community Education
Center Project),” and shall have such terms, conditions and characteristics as specified in the
form of the Series 20__ Bonds attached as Exhibit A hereto and made a part hereof. The Series
20__ Bonds shall be numbered from __R-1 upwards; provided, however, that the Series 20__
Bonds may be numbered in any other manner acceptable to the Trustee and the Issuer.
(b) The Series 20__ Bonds shall be originally issuable as fully registered Bonds
without coupons in denominations of $5,000 or any integral multiples thereof.
(c) The Series 20__ Bonds shall be dated as of the date of their delivery. Interest
shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12)
thirty (30) day months. The interest on the Series 20__ Bonds shall be payable on each February
1 and August 1, commencing on ________ 1, 20__. The Series 20__ 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 such Interest Payment Date.
(d) The Series 20__ Bonds shall mature on February 1 and/or August 1 in the years
and in the principal amounts, and shall bear interest at the rates per annum all as set forth below:
Maturity Date Principal Amount Interest Rate
Section 2.3 Payment of Principal and Interest on the Bonds. The interest on the Bonds
shall be payable by check or draft mailed one Business Day prior to the Interest Payment Date to
the person in whose name each Bond is registered as of the Record Date for such Interest
Payment Date at each address as it appears on the registration and transfer books maintained by
the Registrar or at such other address as is provided to the Trustee, the Registrar and the Paying
Agent in writing by such registered owner. Each registered owner of $1,000,000 or more in
principal amount of Bonds shall be entitled to receive principal and interest payments by wire
transfer by providing written wire instructions to the Trustee, the Registrar and the Paying Agent
before the Record Date for such payment. The final payment of principal and interest on the
Bonds shall be payable in lawful money of the United States of America, at the designated
corporate trust office of the Paying Agent, initially in Indianapolis, Indiana.
Section 2.4 Execution; Limited Obligation. The Bonds shall be executed on behalf of
the Issuer with the manual or facsimile signature of the Mayor of the City and attested with the
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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 said Bonds. In case any officer whose signature or facsimile
signature shall appear on the 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 Bonds, and the interest payable thereon, 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 Bonds, as to both principal and
interest, are not an obligation or liability of the Issuer, 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 (including the Pledged
Revenues) pledged and assigned for their payment in accordance with this Indenture.
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 the 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 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 any member, director, officer,
agent, attorney or employee of the Economic Development Commission, the
Redevelopment Commission, or the Issuer in his or her individual capacity, and no
member, director, officer, agent, attorney or employee of the Economic Development
Commission, the Redevelopment 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. Under no circumstances shall the Public Library be
liable for making any payments due under this Indenture or on the Bonds, including any
payment of principal of, premium, if any, or interest on the Bonds.
Section 2.5 Authentication. No 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 Bond substantially in the form hereinafter 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 Bond has been authenticated and delivered under this
Indenture. The Trustee’s certificate of authentication on any 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 Bonds issued hereunder.
Section 2.6 Delivery of Series 20__ Bonds. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver the Series 20__ Bonds to the Trustee in the
aggregate principal amount authorized in Section 2.1 hereof. The Trustee shall authenticate
such Series 20__ Bonds and deliver them to the purchasers thereof upon receipt of:
(a) A copy of the Bond Ordinance, duly certified by the Clerk.
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(b) A copy of the TIF Pledge Resolution, duly certified by the secretary of the
Redevelopment Commission
(c) Executed counterparts of the Financing Agreement and this Indenture.
(d) A written request of the Issuer to the Trustee requesting the Trustee to
authenticate, or cause to be authenticated, and deliver the Series 20__ Bonds to the purchasers
thereof in the aggregate principal amount authorized in Section 2.1 hereof.
(e) An opinion of nationally recognized Bond Counsel in a form acceptable to the
Issuer.
(f) Such other documents as shall be required by Bond Counsel or the Issuer.
The proceeds of the Series 20__ Bonds shall be paid over to the Trustee and deposited to
the credit of various Funds as hereinafter provided under Article III hereof.
Section 2.7 Mutilated, Lost, Stolen or Destroyed Bonds. In the event any Bond is
mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee may authenticate a
new Bond of like date, maturity and denomination as that mutilated, lost, stolen or destroyed;
provided that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered
to the Issuer, and in the case of any lost, stolen or destroyed 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.
In the event any such Bond shall have matured, instead of issuing a duplicate Bond the
Issuer may pay the same without surrender thereof; provided, however, that in the case of a lost,
stolen or destroyed 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 Bond with its reasonable fees and expenses in this
connection. Any Bond issued pursuant to this Section 2.7 shall be deemed part of the original
series of Bonds in respect of which it was issued and an original additional contractual obligation
of the Issuer.
Section 2.8 Registration and Exchange of Bonds: Persons Treated as Owners. The
Issuer shall cause books for the registration and for the transfer of the 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 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 Bond or Bonds of the same series
and the same maturity for a like aggregate principal amount. The execution by the Issuer of any
fully registered 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 Bond. The costs of such transfer or exchange shall be borne by the
Issuer. The Trustee shall not be required to transfer or exchange any fully registered Bond
during the period between the Record Date and any interest payment date of such Bond, nor to
transfer or exchange any Bond after the mailing of notice calling such Bond for redemption has
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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 Bond without coupons, 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 his 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.
Section 2.9 Provisions for Issuance of Additional or Refunding Bonds. One or more
Series of Bonds in addition to the Series 20__ Bonds (“Additional Bonds”), may be
authenticated and delivered from time to time for one or more of the purposes of (i) refunding all
or a portion of one or more series of Bonds outstanding hereunder, if such Bonds may otherwise
be refunded, and (ii) financing the cost or estimated cost of completing the Project or of
acquiring and/or constructing additional improvements to the 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:
(a) A supplement to this Indenture executed by the Issuer and the Trustee authorizing
the issuance of such Additional Bonds, specifying the terms thereof, pledging and assigning the
Trust Estate, including the Pledged Revenues, as security therefor and providing for the
disposition of the proceeds of the sale thereof.
(b) A copy of an ordinance, authorizing such Additional Bonds, duly certified by the
Clerk.
(c) A copy of the TIF Pledge Resolution, duly certified by the Secretary of the
Redevelopment Commission.
(d) A report or a certificate prepared by an independent certified public accountant or
an independent financial advisor selected by the Issuer supported by appropriate calculations, in
accordance with the terms of the TIF Pledge Resolution.
(e) A written request of the Issuer to the Trustee to authenticate and deliver such
Additional Bonds.
(f) An opinion of Bond Counsel acceptable to the Issuer to the effect that (i) such
supplement to this Indenture has been duly executed by the Issuer and constitutes the valid and
binding obligation of the Issuer enforceable against the Issuer in accordance with its terms; and
(ii) the Additional Bonds have been duly and validly authorized and issued by the Issuer and
constitute the valid and binding limited obligations of the Issuer enforceable against the Issuer in
accordance with their terms. The opinion of Bond Counsel may be qualified as to such matters
as are acceptable to the Issuer and the Trustee, and include, without limitation, customary
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exceptions as to bankruptcy, insolvency and other laws affecting creditors’ rights generally and
customary exceptions as to principles of equity.
Any Additional Bonds issued in accordance with the terms of this Section 2.9 shall be
secured by this Indenture and shall be equally and ratably payable from the Pledged Revenues,
on parity with the pledge thereof to the Series 20__ Bonds, 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 and the purchaser of such Additional Bonds,
subject to any limitations or requirements set forth in the TIF Pledge Resolution.
Any Additional Bonds issued for the purpose of refunding any Bonds outstanding
hereunder may be authenticated and delivered only upon receipt by the Trustee (in addition to
the receipt by them of the documents required by Section 2.6 and this Section 2.9 hereof) of:
(i) Irrevocable instructions from the Issuer to the Trustee, satisfactory to it, to
give due notice of redemption of all the Bonds to be refunded on the redemption date
specified in such instructions;
(ii) Irrevocable instructions from the Issuer to the Trustee, satisfactory to it, to
mail the notice provided for in Article V to the owners of the Bonds being refunded;
(iii) Either (1) moneys in an amount sufficient to effect payment at the
applicable Redemption Price or principal payment amount of the Bonds to be refunded
or paid, respectively, together with accrued interest on such Bonds to the redemption or
maturity date, which moneys shall be held by the Trustee or any one or more of the
Paying Agents in a separate account irrevocably in trust for and assigned to the
respective owners of the Bonds to be refunded or paid, or (2) Governmental Obligations
in such principal amounts, of such maturities, bearing such interest, and otherwise
having such terms and qualifications, as shall be necessary to comply with the
provisions of Article X hereof, which Governmental Obligations shall be held in trust
and used only as provided in said Article X, or (3) any combination of cash and/or
Governmental Obligations as described in subparagraphs (1) or (2) above.
Section 2.10 Form of Additional Bonds. Additional Bonds shall be issued in the form
set forth in the Supplemental Indenture authorizing the issuance of such Series of Additional
Bonds with such appropriate variations, omissions and insertions as are permitted or required by
this Indenture or otherwise deemed necessary by the Issuer, the Trustee or the Registrar.
Section 2.11 Book-Entry System. The Issuer has determined that the Series 20__
Bonds shall be held by a central depository system pursuant to an agreement between the Issuer
and The Depository Trust Company, and have transfers of the Series 20__ Bonds effected by
book-entry on the books of the central depository system. The Series 20__ Bonds shall be
initially issued in the form of a separate single authenticated fully registered Bond for the
aggregate principal amount of each separate maturity of the Series 20__ Bonds. Upon initial
issuance, the ownership of such Series 20__ Bonds shall be registered in the register kept by the
Registrar in the name of CEDE & CO., as nominee of The Depository Trust Company.
Notwithstanding any other provision hereof to the contrary, so long as any Series 20__
Bond is registered in the name of CEDE & CO. as nominee of the Depository Company, all
15
payments with respect to the principal of and premium, if any, and interest on such Series 20__
Bond and all notices with respect to such Series 20__ Bond shall be made and given,
respectively, to the Depository Company as provided in a representation letter from the
Authority to the Depository Company.
With respect to the Series 20__ Bonds registered in the register kept by the Paying Agent
in the name of CEDE & CO., as nominee of The Depository Trust Company, the Issuer and the
Paying Agent shall have no responsibility or obligation to any other holders or owners (including
any beneficial owner (“Beneficial Owner”), of the Series 20__ Bonds with respect to (i) the
accuracy of the records of The Depository Trust Company, CEDE & CO., or any Beneficial
Owner with respect to ownership questions, (ii) the delivery to any bondholder (including any
Beneficial Owner) or any other person, other than The Depository Trust Company, of any notice
with respect to the Series 20__ Bonds including any notice of redemption, or (iii) the payment to
any Bondholder (including any Beneficial Owner) or any other person, other than The
Depository Trust Company, of any amount with respect to the principal of, or premium, if any,
or interest on the Series 20__ Bonds, except as otherwise provided herein.
No person other than The Depository Trust Company shall receive an authenticated
Series 20__ Bond evidencing an obligation of the Issuer to make payments of the principal of
and premium, if any, and interest on the Series 20__ Bonds pursuant to the Indenture. The Issuer
and the Registrar and Paying Agent may treat as and deem The Depository Trust Company or
CEDE & CO. to be the absolute bondholder of each of the Series 20__ Bonds for the purpose of
(i) payment of the principal of and premium, if any, and interest on such Series 20__ Bonds; (ii)
giving notices of redemption and other notices permitted to be given to Bondholders with respect
to such Bonds; (iii) registering transfers with respect to such Series 20__ Bonds; (iv) obtaining
any consent or other action required or permitted to be taken of or by Bondholders; (v) voting;
and (vi) for all other purposes whatsoever. The Paying Agent shall pay all principal of and
premium, if any, and interest on the Series 20__ Bonds only to or upon the order of The
Depository Trust Company, and all such payments shall be valid and effective fully to satisfy
and discharge the Issuer’s and the Paying Agent’s obligations with respect to principal of and
premium, if any, and interest on the Series 20__ Bonds to the extent of the sum or sums so paid.
Upon delivery by The Depository Trust Company to the Issuer of written notice to the effect that
The Depository Trust Company has determined to substitute a new nominee in place of CEDE &
CO., and subject to the provisions herein with respect to consents, the words “CEDE & CO.” in
this Indenture shall refer to such new nominee of The Depository Trust Company.
Notwithstanding any other provision hereof to the contrary, so long as any Series 20__ Bond is
registered in the name of CEDE & CO. as nominee of The Depository Trust Company, all
payments with respect to the principal of and premium, if any, and interest on such Series 20__
Bond and all notices with respect to such Series 20__ Bond shall be made and given,
respectively, to The Depository Trust Company as provided in a representation letter from the
Issuer to The Depository Trust Company.
Upon receipt by the Issuer of written notice from The Depository Trust Company to the
effect that The Depository Trust Company is unable or unwilling to discharge its responsibilities
and no substitute depository willing to undertake the functions of The Depository Trust
Company hereunder can be found which is willing and able to undertake such functions upon
reasonable and customary terms, then the Series 20__ Bonds shall no longer be restricted to
being registered in the register of the Issuer kept by the Registrar in the name of CEDE & CO.,
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as nominee of The Depository Trust Company, but may be registered in whatever name or names
the Bondholders transferring or exchanging Series 20__ Bonds shall designate, in accordance
with the provisions of the Indenture.
If the Issuer determines that it is in the best interest of the Bondholders that they be able
to obtain certificates for the fully registered Series 20__ Bonds, the Issuer may notify The
Depository Trust Company and the Registrar, whereupon The Depository Trust Company will
notify the Beneficial Owners of the availability through The Depository Trust Company of
certificates for the Series 20__ Bonds. In such event, the Registrar shall prepare, authenticate,
transfer and exchange certificates for the Series 20__ Bonds as requested by The Depository
Trust Company and any Beneficial Owners in appropriate amounts, and whenever The
Depository Trust Company requests the Issuer and the Registrar to do so, the Registrar and the
Issuer will cooperate with The Depository Trust Company by taking appropriate action after
reasonable notice (i) to make available one or more separate certificates evidencing the fully
registered Series 20__ Bonds of any Beneficial Owner’s Depository Trust Company account or
(ii) to arrange for another securities depository to maintain custody of certificates for and
evidencing the Series 20__ Bonds.
If the Series 20__ Bonds shall no longer be restricted to being registered in the name of a
depository trust company, the Registrar shall cause the Series 20__ Bonds to be printed in blank
in such number as the Registrar shall determine to be necessary or customary; provided,
however, that the Registrar shall not be required to have such Bonds printed until it shall have
received from the Issuer indemnification for all costs and expenses associated with such printing.
In connection with any notice or other communication to be provided to Bondholders by
the Issuer or the Registrar with respect to any consent or other action to be taken by
Bondholders, the Issuer or the Registrar, as the case may be, shall establish a record date for such
consent or other action and give The Depository Trust Company notice of such record date not
less than fifteen (15) calendar days in advance of such record date to the extent possible.
So long as the Series 20__ Bonds are registered in the name of The Depository Trust
Company or CEDE & CO. or any substitute nominee, the Issuer and the Registrar and Paying
Agent shall be entitled to request and to rely upon a certificate or other written representation
from the Beneficial Owners of the Series 20__ Bonds or from The Depository Trust Company on
behalf of such Beneficial Owners stating the amount of their respective beneficial ownership
interests in the Series 20__ Bonds and setting forth the consent, advice, direction, demand or
vote of the Beneficial Owners as of a record date selected by the Registrar and The Depository
Trust Company, to the same extent as if such consent, advice, direction, demand or vote were
made by the Bondholders for purposes of this Indenture and the Issuer and the Registrar and
Paying Agent shall for such purposes treat the Beneficial Owners as the Bondholders. Along
with any such certificate or representation, the Registrar may request The Depository Trust
Company to deliver, or cause to be delivered, to the Registrar a list of all Beneficial Owners of
the Bonds, together with the dollar amount of each Beneficial Owner’s interest in the Series 20__
Bonds and the current addresses of such Beneficial Owners.
If the Book Entry System is no longer in effect, registered owners of Series 20__
Bonds may, upon surrender thereof at the principal corporate trust office of the Trustee with a
written instrument of transfer satisfactory to the Trustee, exchange a Series 20__ Bond or Series
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20__ Bonds for a bond or bonds of equal aggregate principal amount of the same maturity and
interest rate of any authorized denominations. For every exchange or transfer of Series 20__
Bonds, the Trustee may make a charge sufficient to reimburse it for any tax, fee or other
governmental charge required to be paid with respect to such exchange or transfer, which shall
be paid by the person requesting such exchange or transfer as a condition precedent to the
exercise of the privilege of making such exchange or transfer. The cost of preparing each new
Series 20__ Bond upon each exchange or transfer, and any other expenses of the Trustee
incurred in connection therewith (except any applicable tax, fee or other governmental charge)
shall be paid by the Issuer. The Trustee shall not be obliged to make any transfer or exchange of
any Series 20__ Bond called for redemption within thirty days of the redemption date.
(End of Article II)
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ARTICLE III
APPLICATION OF SERIES 20__ BOND PROCEEDS AND OTHER FUNDS
Section 3.1 Deposit of Series 20__ Bond Proceeds. The Issuer shall deposit with the
Trustee the Net Proceeds from the sale of the Series 20__ Bonds, which consists of an amount
equal to $__________ (which amount represents the par amount of the Series 20__ Bonds
($_________), plus original issue premium ($________), less an underwriter’s discount
($__________) to be retained by the Underwriter, and less the premium for the Series 20__ Debt
Service Reserve Fund Credit Facility allocable to the Series 20__ Bonds to be paid to by the
Underwriter directly to the Series 20__ Credit Provider, for and on behalf of the Issuer
($__________)), and the Trustee shall deposit the Net Proceeds as follows
(a) $___________ of such amount shall be deposited into the Construction Fund and
disbursed therefrom for the purposes described in Section 4.5(b) hereof; and
(b) $_________ (constituting the remainder of the Net Proceeds of the Series 20__
Bonds) shall be deposited into the Expense Fund and disbursed therefrom for the purposes
described in Section 4.6(b) hereof.
Section 3.2 Deposit of Proceeds of Additional Bonds. The Trustee shall deposit the
net proceeds of any subsequent Series of Bonds as provided in the Supplemental Indenture for
that Series of Bonds.
(End of Article III)
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ARTICLE IV
REVENUE AND FUNDS
Section 4.1 Source of Payment of the 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 Pledged Revenues pledged and assigned for their
payment in accordance with this Indenture and the Bond Ordinance. No covenant or agreement
contained in the Bonds or this Indenture shall be deemed to be a covenant or agreement of any
member, director, officer, agent, attorney or employee of the Issuer in his or her individual
capacity, and no 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 Creation of Funds. There are hereby created and ordered established the
following funds and accounts to be held by the Trustee:
(a) the Bond Fund;
(b) the Construction Fund;
(c) the Expense Fund;
(d) the Debt Service Reserve Fund; and
(e) the Rebate Fund.
Upon the written request of the Issuer, the Trustee shall establish and maintain hereunder
such additional funds, accounts or subaccounts as the Issuer may specify from time to time to the
extent that in the judgment of the Trustee the establishment of such funds, accounts or
subaccounts are not to the material prejudice of the Trustee or the Bondholders
Section 4.3 Bond Fund.
(a) Moneys in the Bond Fund shall be applied as provided in this Section 4.3. There
shall be deposited in the Bond Fund, at such times prescribed by Section 4.3(b) hereof, the
Pledged Revenues in an amount equal to the payments due on the Bonds on the next Interest
Payment Date and overdue principal and interest payments on outstanding Bonds, together with
all Annual Fees coming due within the next six (6) months with respect to the Bonds.
(b) The Issuer hereby 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, prior to 10:00 a.m., Eastern Time, at least three (3) business days
immediately preceding each Interest Payment Date, sufficient sums from revenues and receipts
derived from the Pledged Revenues, promptly to meet and pay the amounts required under
Section 4.3(a) hereof. 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
receipts derived from the Pledged Revenues and amounts on deposit in the Debt Service Reserve
Fund. The Trustee is hereby directed to deposit any Pledged Revenues received into the Bond
Fund in the manner prescribed in this Section 4.3 and in Section 4.4 hereof. Moneys in the Bond
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Fund shall be used by the Trustee to pay the interest on and principal of the Bonds as the same
becomes due at maturity, redemption or upon acceleration, together with the Annual Fees
described in subsection (a) in that sequence or order of priority. If necessary, the Trustee shall
transmit such funds to the Paying Agent for any series of Bonds in sufficient time to ensure that
such interest will be paid as it becomes due.
Section 4.4 Deposit of Pledged Revenues.
(a) On or before 10:00 a.m., Eastern Time, at least three (3) business days
immediately preceding each Interest Payment Date, commencing on February 1, 2019, the
Trustee shall deposit the Pledged Revenues (as received from the Redevelopment Commission in
accordance with the TIF Pledge Resolution) into the Bond Fund, but no more than shall be
necessary for the payment of the principal of and interest on the Bonds on the immediately
succeeding Interest Payment Date (taking into consideration any amounts currently deposited
therein) and overdue principal and interest payments on outstanding Bonds, together with
Annual Fees coming due within the next six (6) months.
(b) Any amounts remaining from deposits described in Section 4.4(a) shall be applied
by the Trustee as follows: (i) first, to be transferred into the Debt Service Reserve Fund for the
purpose of replenishing the Debt Service Reserve Fund to the Reserve Requirement with respect
to the Bonds, (ii) second, to be transferred into the Debt Service Reserve Fund for the purpose of
satisfying any Debt Service Reserve Fund Reimbursement Obligation for any Reserve Fund
Credit Facility, including all Credit Facility Costs, and (iii) third, to redeem outstanding Bonds in
accordance with Section 5.1 hereof, as directed by the Issuer, or to be released and returned to
the Issuer and used for any other purpose permitted by the Act.
(c) The obligations hereunder to deposit and apply the Pledged Revenues shall be
absolute and unconditional and shall not be impaired by the failure of the Financing Agreement
to be in effect or the default by the Public Library thereunder.
Section 4.5 Construction Fund.
(a) A portion of the Net Proceeds received from the sale of the Series 20__ Bonds
shall be deposited with the Trustee in trust in the Construction Fund in an amount required to be
deposited therein pursuant to Article III hereof. Moneys held in the Construction Fund
representing proceeds of the sale of the Series 20__ Bonds shall be disbursed by the Trustee in
accordance with the provisions of this Section to pay the costs of completing the Project
approved by the Issuer. Subject to the limitations below and any applicable conditions
precedent, limitations, restrictions, representations, warranties and covenants contained in the
Financing Agreement or this Indenture, or the Tax Certificate, disbursements from the
Construction Fund shall be made only to pay (or to reimburse the Public Library or its designee
for payment of) the Annual Fees and costs of the Project approved by the Issuer, as follows:
(1) Costs incurred directly or indirectly for or in connection with the
acquisition, construction, expansion, equipping, installation or improvement of the
Project, as the case may be, including: costs incurred with respect to preliminary planning
and studies; architectural, legal, engineering, accounting, consulting, supervisory and
21
other services; demolition; labor, services and materials; and recording of documents and
title work;
(2) Costs incurred directly or indirectly in seeking to enforce any remedy
against any contractor or subcontractor in respect of any actual or claimed default under
any contract relating to the Project, as the case may be;
(3) Any financial, legal and accounting charges and expenses or other
incidental and necessary costs, expenses, fees and charges approved by the Issuer relating
to the acquisition, construction, expansion, equipping, installation or improvement of the
Project, as the case may be.
Any disbursements from the Construction Fund described above to pay such fees, costs or
expenses (or to reimburse the Public Library for the payment of such fees, costs or expenses)
shall be made by the Trustee only upon the written request of an Authorized Representative for
the Public Library, with the prior written approval of the Issuer. Each such written request shall
be in the form of the disbursement request attached as Exhibit B hereto and shall be
consecutively numbered and accompanied by invoices or other appropriate documentation
supporting the payments or reimbursements requested. The Trustee shall not make any
disbursements from the Construction Fund without the prior written approval of the Issuer.
Following the completion of the Project, the Issuer will file or cause the Borrower to file an
Affidavit of Completion with the Trustee. If any money remains in the Construction Fund after
the filing of such Affidavit of Completion, the Issuer may direct the Trustee to disburse such
remaining funds for other expenditures as permitted by law, or may direct the Trustee to transfer
all such moneys to the Bond Fund.
(b) In making disbursements from the Construction Fund or any accounts thereof, the
Trustee may rely upon such invoices or other appropriate documentation supporting the
payments or reimbursements without further investigation. The Trustee shall not be bound to
make an investigation into the facts or matters stated in any written request. The Trustee shall
not be responsible for determining whether the funds on hand in the Project Fund are sufficient
to complete the Project. The Trustee shall have no responsibility whatsoever to disburse or
transfer funds absent written instructions from the Issuer.
Section 4.6 Expense Fund.
The Trustee shall deposit into the Expense Fund the moneys required to be deposited
therein pursuant to the provisions of Article III hereof. The Trustee shall disburse the funds held
in the Expense Fund to pay Costs of Issuance for the Series 20__ Bonds or to reimburse the
Issuer for amounts previously advanced for such costs as set forth in Exhibit C hereto (without
further approval of the Issuer). Any amounts remaining in the Expense Fund one-hundred
twenty (120) days after the issuance of the Series 20__ Bonds will be transferred to the Bond
Fund to be used to pay debt service on the Series 20__ Bonds, at which time the Expense Fund
may, at the direction of the Issuer, be closed.
Section 4.7 Debt Service Reserve Fund.
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(a) The Trustee will deposit in the Debt Service Reserve Fund all moneys required to
be deposited therein pursuant to Article III or Article IV hereof, together with such other moneys
as directed by the Issuer, to cause the balance of the Debt Service Reserve Fund to be equal to
the Debt Service Reserve Requirement, shall invest such funds pursuant to the Indenture and
shall disburse the funds held in the Debt Service Reserve Fund to the Bond Fund on the date
which is two (2) business days prior to the next preceding each Interest Payment Date, if the
moneys in the Bond Fund are not sufficient to make the payments of principal and interest
required to be made on the Bonds on such date after taking into account available funds on
deposit in the Bond Fund after making all transfers required to be made under this Indenture.
(b) The Trustee shall transfer the funds held in the Debt Service Reserve Fund to the
Bond Fund for the timely payment of the principal of and interest on the Bonds, but only in the
event that moneys in the Bond Fund are insufficient to pay such amount of principal and interest
due on the Bonds after making all transfers required to be made under the Indenture.
(c) If the balance of the Debt Service Reserve Fund exceeds the Debt Service
Reserve Requirement, the Trustee shall move the cash or Qualified Investments in excess of the
Debt Service Reserve Requirement from the Debt Service Reserve Fund to the Construction
Fund prior to the filing of the Affidavit of Project Completion and thereafter to the Bond Fund.
(d) The Issuer may cause to be deposited into the Debt Service Reserve Fund, for the
benefit of the holders of the Bonds, a Debt Service Reserve Fund Credit Facility. If such deposit
causes the Debt Service Reserve Fund combined balance to be equal to the Reserve
Requirement, moneys in the Debt Service Reserve Fund which cause their combined balance to
be in excess of the Debt Service Reserve Requirement shall be moved to the Project Fund or the
Bond Fund, as directed by the Issuer. If a disbursement is made pursuant to a Debt Service
Reserve Fund Credit Facility, the Issuer shall be obligated (but solely from amounts available
under the Indenture, including the Pledged Revenues), within twelve months from the date on
which such disbursement was made, to cure such deficiency, by either (i) reinstating the
maximum limits of such Debt Service Reserve Fund Credit Facility or (ii) depositing cash into
the Debt Service Reserve Fund, or a combination of such alternatives, so that the balance of the
Debt Service Reserve Fund equals the Debt Service Reserve Requirement. The Trustee shall
include in the total amount held in the Debt Service Reserve Fund an amount equal to the
maximum principal amount which could be drawn by the Trustee under any such Debt Service
Reserve Fund Credit Facility on deposit with the Trustee. Amounts required to be deposited in
the Debt Service Reserve Fund shall include any amount required to satisfy a Debt Service
Reserve Fund Reimbursement Obligation for any Debt Service Reserve Fund Credit Facility.
The Trustee is authorized to transfer the amounts to satisfy the Debt Service Reserve Fund
Reimbursement Obligations to the provider of the Debt Service Reserve Fund Credit Facility.
(e) Notwithstanding the foregoing, for so long as the Series 20__ Debt Service
Reserve Fund Credit Facility remains in full force and effect, the following provisions shall
apply:
Section 4.8 Rebate Fund. Any provision hereof to the contrary notwithstanding,
amounts deposited in or credited to the Rebate Fund shall be free and clear of any lien hereunder.
If, in order to maintain the exclusion of interest on any Series of Bonds (including the Series
20__ Bonds) from gross income for federal income tax purposes under Section 103 of the Code,
23
the Issuer is required to rebate portions of investment earnings to the United States government,
the Issuer shall annually cause to be computed the amount required to be so rebated, or, if the
provisions of Section 148(f)(4)(C)(vii) of the Code apply, the Issuer shall semiannually cause to
be computed the amount of the penalty to be paid in lieu of rebate. Upon receipt of such
computation, the Trustee shall at the direction of the Issuer deposit such amount in the Rebate
Fund from the Construction Fund, the Expense Fund, the Debt Service Reserve Fund or
investment earnings on the Bond Fund. The Trustee shall pay required rebate or penalties from
the Rebate Fund as directed by the Issuer and as required by Section 148 of the Code. Such
payments shall be made by the Trustee without any further authorization or direction, other than
as stated herein.
Section 4.9 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 Public Library. Such moneys shall be
held in trust for the benefit of the Purchaser and applied in accordance with the provisions of this
Indenture.
Section 4.10 Investment. Moneys on deposit in the Funds established in this Article IV
hereof shall be invested as provided in Section 6.5 hereof.
(End of Article IV)
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ARTICLE V
REDEMPTION OF BONDS PRIOR TO MATURITY
Section 5.1 Redemption Dates and Prices.
(a) The Series 20__ Bonds maturing on or after _______ 1, 20__, are subject
to redemption at the option of the Issuer on any date on or after _______, 1, 20__, in whole or in
part, in order of maturity determined by Issuer and by lot within maturities, at face value, plus
accrued interest to the date fixed for redemption and without premium.
(b) The Series 20__ Bonds maturing on ________ 1, 20__, ______ 1, 20__,
and ________ 1, 20__, are subject to mandatory sinking fund redemption prior to maturity on the
dates and in the amounts set forth below at a price equal to 100% of the principal amount to be
redeemed, plus accrued interest to the date of redemption:
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The Trustee shall credit against the mandatory sinking fund requirement for any Term
Bonds, and corresponding mandatory sinking fund redemption obligation, in the order
determined by the Issuer, any such Term Bonds which have previously been redeemed
(otherwise than as a result of a previous mandatory sinking fund redemption requirement) or
delivered to the Trustee, the Registrar or the Paying Agent for cancellation or purchased for
cancellation by the Trustee and not theretofore applied as a credit against any redemption
obligation. Each Term Bond so delivered or canceled shall be credited by the Trustee at 100% of
the principal amount thereof against the mandatory sinking fund obligation on such mandatory
sinking fund redemption date, and any excess of such amount shall be credited on future
redemption obligations, and the principal amount of Term Bonds to be redeemed by operation of
the mandatory sinking fund requirement shall be accordingly reduced; provided, however, the
Trustee, the Registrar or the Paying Agent shall only credit such Term Bonds to the extent
received on or before forty-five (45) days preceding the applicable mandatory sinking fund
redemption date stated above.
Section 5.2 Notice to Trustee of Intent to Redeem. To evidence its intention to
exercise the right of redemption of any Bonds, the Issuer shall, not less than forty-five (45) days
prior to the date selected for redemption, file with the Trustee written notice of its intention to
redeem, designating the date fixed for redemption, and if less than all of the outstanding Bonds
are to be redeemed stating the aggregate principal amount of Bonds which the Issuer desires to
redeem. No failure or defect in such notice by the Issuer to the Trustee shall affect the validity of
the redemption of any Bonds.
Section 5.3 Notice to Bondholders of Redemption. In the case of redemption of
Bonds pursuant to Section 5.1 hereof, unless waived by the registered owners of the Bonds to be
redeemed, notice of the call for any such redemption identifying the Bonds, or portions of fully
registered Bonds, to be redeemed shall be given by mailing a copy of the redemption notice by
first-class mail not less than thirty (30) days nor more than forty-five (45) days prior to the date
fixed for redemption to the registered owner of each Bond to be redeemed at the address shown
on the registration books. Any notice of redemption required under this section shall identify the
Bonds to be redeemed including the complete name of the Bonds, the interest rate, the issue date,
the maturity date, the respective certificate numbers (and, in the case of a partial redemption, the
respective principal amounts to be called) and shall state (i) the date fixed for redemption, (ii) the
redemption price, (iii) that the Bonds called for optional redemption in full must be surrendered
to collect the redemption price, (iv) the address of the corporate trust office of the Trustee at
which the Bonds must be surrendered together with the name and telephone number of a person
to contact from the office of the Trustee, (v) any condition precedent to such redemption, (vi)
that on the date fixed for redemption, and upon the satisfaction of any condition precedent
described in the notice, the redemption price will be due and payable upon each such Bond or
portion thereof and that interest on the Bonds called for redemption ceases to accrue on the date
fixed for redemption, and (vii) that if such condition precedent is not satisfied, such notice of
redemption is rescinded and of no force and effect, and the principal and premium, if any, shall
continue to bear interest on and after the date fixed for redemption at the interest rate borne by
the Bond; provided, however, that failure to give such notice by mailing, or any defect therein,
with respect to any such registered Bond shall not affect the validity of any proceedings for the
redemption of other Bonds.
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On and after the redemption date specified in the aforesaid notice, such 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
the Series 20__ 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 20__ Bonds.
Section 5.4 Cancellation. All 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.
Section 5.5 Redemption Payments. Prior to the date fixed for redemption in whole,
funds shall be deposited with the Trustee to pay, and the Trustee is hereby authorized and
directed to apply such funds to the payment of the 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 Bonds thus called shall no longer accrue after the date fixed
for redemption. No payment shall be made by the Trustee upon any Bond being optionally
redeemed in full until such Bond shall have been delivered for payment or cancellation or the
Trustee shall have received the items required by Section 2.7 hereof with respect to any
mutilated, lost, stolen or destroyed Bond.
Section 5.6 Partial Redemption of Bonds. If fewer than all of the Bonds at the time
outstanding are to be called for redemption, the maturities of Bonds or portions thereof to be
redeemed shall be selected by the Trustee at the direction of the Issuer. If fewer than all of the
Bonds within a maturity are to be redeemed, the Trustee shall apply moneys available for
redemption on a pro rata basis, based on the respective portion of the principal amount of Bonds
held by the respective owners of the Bonds within such maturity that shall be redeemed. The
Trustee shall call for redemption in accordance with the foregoing provisions as many Bonds or
portions thereof as will, as nearly as practicable, exhaust the moneys available therefor.
Particular Bonds or portions thereof shall be optionally redeemed only in the minimum principal
amount of $5,000 or integral multiples thereof.
If less than the entire principal amount of any registered Bond then outstanding is called
for redemption, then upon notice of redemption given as provided in Section 5.3 hereof, the
owner of such registered Bond shall forthwith surrender such Bond to the Trustee in exchange
for (a) payment of the redemption price of, plus accrued interest on the principal amount thereof
called for redemption to the redemption date, and (b) a new Bond or Bonds of like series in an
aggregate principal amount equal to the unredeemed balance of the principal amount of such
registered 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 and Interest. The Issuer covenants that it will
promptly pay the principal of and interest on every Bond issued under this Indenture at the place,
on the dates and in the manner provided herein and in said Bonds according to the true intent and
meaning thereof. The principal of and interest on the Bonds are payable solely and only from the
Trust Estate, consisting of funds and accounts held under the Indenture and the Pledged
Revenues, which revenues are specifically pledged and assigned to the payment of the Bonds 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 Bonds, and the
interest payable thereon, 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
Bonds, as to both principal and interest, are not an obligation or liability of the Issuer, the State
of Indiana, or of any political subdivision or taxing authority thereof, but are special limited
obligations of the Issuer and are payable solely and only from the Trust Estate, consisting of
funds and accounts held under the Indenture and the Pledged Revenues pledged and assigned for
payment of the Bonds in accordance with the Indenture. 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 the 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 interest on the Bonds.
The Issuer has no taxing power with respect to the Bonds. No covenant or agreement contained
in the Bonds, the Financing Agreement, or the Indenture shall be deemed to be a covenant or
agreement of any member, director, officer, agent, attorney or employee of the Economic
Development Commission, the Redevelopment Commission, or the Issuer in his or her
individual capacity, and no member, director, officer, agent, attorney or employee of the
Economic Development Commission, the Redevelopment 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. Under no circumstances shall the Public
Library be liable for making any payments due under this Indenture or on the Bonds, including
any payment of principal of, premium, if any, or interest on 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 and assign the Pledged 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
28
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.
Section 6.3 Instruments of Further Assurance. The Issuer covenants that it will do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered,
such indentures supplemental hereto and such further acts, instruments and transfers as the
Trustee may reasonably require for the better assuring, transferring, mortgaging, conveying,
pledging, assigning and confirming unto the Trustee, the Trust Estate pledged hereby to the
payment of the principal of and interest on the Bonds.
Section 6.4 Filing of Indenture and Security Instruments. The Issuer shall cause this
Indenture 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 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 6.5 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 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 Investment of Funds. All moneys held by the Trustee in any Fund
established by this Indenture shall, at the written direction of the Issuer, be invested in Qualified
Investments to the extent permitted by law. For so long as the Trustee is in compliance with the
provisions of this section, the Trustee shall not be liable for any investment losses. All such
investments shall at all times be a part of the fund or account in which the moneys used to
acquire such investments had been deposited, and all income derived from the investment of
moneys on deposit in such fund shall be deposited in or credited to and any loss resulting from
such investment will be charged to the corresponding Fund from which such investment was
made. Investments of moneys in the respective funds or accounts must be made so as to assure
preservation of principal. Moneys in any fund or account shall be invested in Qualified
Investments with a maturity date, or a redemption date determined by the Issuer at the Issuer’s
option, which shall coincide as nearly as practicable with times at which moneys in such funds or
accounts will be required for the purposes thereof. The Trustee shall sell and reduce to cash a
sufficient amount of such investments in the respective fund or account whenever the cash
balance therein is insufficient to pay the amounts contemplated to be paid therefrom at the time
those amounts are to be paid. The Trustee is hereby authorized to trade with itself in the
purchase and sale of securities for investments. Neither the Trustee nor the Issuer shall be liable
or responsible for any loss resulting from any investment. All such investments shall be held by
or under the control of the Trustee or the Issuer, as applicable, and any income resulting
therefrom shall be applied in the manner specified in this Indenture. The Public Library is not
authorized or entitled to direct, or obligated to make, investments of Bond proceeds or any other
29
funds held under this Indenture. Although the Issuer recognizes that it may obtain a broker
confirmation at no additional cost, the Issuer hereby agrees 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 6.7 Non-presentment of Bonds. In the event any Bond shall not be presented
for payment when the final payment of principal thereof becomes due, either at maturity, or at
the date fixed for optional redemption in full thereof, or otherwise, if funds sufficient to pay any
such Bond shall have been made available to Trustee for the benefit of the holder or holders
thereof, all liability of the 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
the Trustee 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 Trustee not so applied to the payment of
Bonds within five (5) years after the date on which the same shall become due shall be repaid by
the Trustee to the Issuer, and thereafter Bondholders shall be entitled to look only to the Issuer
for payment, and then only to the extent of the amount so repaid.
Section 6.8 Destruction of Bonds. Whenever any outstanding Bond shall be delivered
to the Trustee for cancellation pursuant to this Indenture or upon payment of the principal
amount or interest represented thereby or for replacement pursuant to Section 2.7, such Bond
shall be cancelled and destroyed by the Trustee and a counterpart of a certificate of destruction
evidencing such destruction shall be furnished by the Trustee to the Issuer.
Section 6.9 Issuer Indemnity. To the extent authorized by law, the Issuer shall
indemnify and hold harmless the Trustee against any and all loss, damage, claims, expense and
liability arising out of or in connection with the acceptance of administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any claim (whether
asserted by the Issuer, the Public Library, any bondholder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties hereunder except to
the extent that such loss, damage, claim, expense or liability is determined by a court of
competent jurisdiction to have been caused solely by Trustee’s gross negligence or willful
misconduct.
Section 6.10 Tax Covenants; Issuance of Taxable Bonds.
(a) To assure the continuing exclusion of the interest on any Series of Bonds
(including the Series 20__ Bonds) from the gross income of the owners thereof for federal tax
purposes under Section 103 of the Code, the Issuer covenants and agrees as follows:
(i) It will not take any action or fail to take any action with respect to such
Series of Bonds, that would result in the loss of the exclusion from gross income for
federal tax purposes of interest on any of the Bonds pursuant to Section 103 of the Code,
nor will the Issuer act in any other manner which would adversely affect such exclusion;
30
and it will not make any investment or do any other act or thing during the period that the
Bonds are outstanding which would cause any of the Bonds to be “arbitrage bonds”
within the meaning of Section 148 of the Code, all as in effect on the date of delivery of
the particular Series of Bonds.
(ii) These covenants are based solely on current law in effect and in existence
on the date of delivery of each Series of Bonds.
(iii) It shall not be an Event of Default under this Indenture if the interest on
any of the Bonds is not excludable from gross income for federal tax purposes or
otherwise pursuant to any provision of the Code which is not currently in effect and in
existence on the date of the issuance of such Series of Bonds.
(iv) It will rebate any necessary amounts to the United States of America to the
extent required by the Code, as provided in Section 4.9 of this Indenture.
(b) Notwithstanding any other provision of this Indenture to the contrary, the
foregoing covenants and authorizations (the “Tax Sections”), which are designed to preserve the
continuing exclusion of the interest on a Series of Bonds from the gross income of the owners
thereof for federal tax purposes under Section 103 of the Code, need not be complied with if the
Issuer receives an Opinion of Bond Counsel that any Tax Section is unnecessary to preserve the
continuing exclusion of the interest on such Series of Bonds from the gross income of the owners
thereof for federal tax purposes under Section 103 of the Code. In making any determination
regarding the covenants, the Issuer may rely on an Opinion of Bond Counsel which shall be
addressed to the Issuer and the Trustee.
(c) Notwithstanding any other provision of the Indenture to the contrary, the Issuer
may elect to issue a Series of Bonds, the interest on which is not excludable from gross income
for federal tax purposes, so long as such election does not adversely affect the exclusion from
gross income of interest for federal tax purposes on any other Series of Bonds, by making such
election on the date of delivery of such Series of Bonds. In such case, the Tax Sections in this
Indenture shall not apply to such Series of Bonds.
(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 principal or interest payable on the Bonds shall not be made when
the same is due and payable, whether at the stated maturity thereof, or upon proceedings for the
redemption thereof; or
(b) 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 hereto on the part of the Issuer to be performed, and such default
shall continue for sixty (60) days after written notice specifying such default and requiring the
same to be remedied shall have been given to the Issuer by the Trustee, which may give such
notice in its discretion and shall give such notice at the written request of the holders of all of the
Bonds then outstanding hereunder; or
(c) the Issuer shall fail to apply the Pledged Revenues as required by Article IV of
this Indenture.
Section 7.2 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 interest on the Bonds then
outstanding, and to enforce any obligations of the Issuer hereunder.
(b) Upon the occurrence of an event of default, and if directed so to do by the
Requisite Bondholders and indemnified as provided in Section 8.1 hereof, the Trustee shall be
obligated to exercise 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.
32
Section 7.3 Right of Bondholders to Direct Proceedings. The Requisite Bondholders
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 the 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.
Section 7.4 Application of Moneys.
(a) 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 expenses, liabilities and
advances incurred or made by the Trustee or the Issuer, be deposited in the Bond Fund and all
moneys in the Bond Fund shall be applied as follows:
(1) Unless the principal of all the Bonds shall have become 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 thereof, without any discriminations or privilege;
SECOND: To the payment to the persons entitled thereto of the unpaid principal
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; and
THIRD: To the payment of the balance, if any, to the Issuer or to whosoever may
be lawfully entitled to receive the same upon its written request, or as any court of
competent jurisdiction may direct.
(2) If the principal of all the Bonds shall have become due, all such moneys
shall be applied to the payment of the principal and interest then due and unpaid upon the Bonds,
without preference or priority of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for principal and interest, to the persons
entitled thereto without any discrimination or privilege.
(b) 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.
33
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 and upon such date interest on the amounts of principal to be paid on such dates shall
cease to accrue. 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.
(c) Whenever all principal of and interest on all Bonds have been paid under the
provisions of this Section and all expenses and charges of the Trustee have been paid, any
balance remaining in the Bond Fund shall be paid as provided in Article IV hereof.
Section 7.5 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
7.4 hereof, be for the equal benefit of the holders of the outstanding Bonds.
Section 7.6 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, nor unless also such default shall have become an
event of default and the Requisite Bondholders 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 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 7.7 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 and the Trustee shall be restored to
34
their former positions and rights hereunder, and all rights, remedies and powers of the Trustee
shall continue as if no such proceedings had been taken.
Section 7.8 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 and interest on the Bonds, and shall do so upon the written request of (1) the holders
of all of the Bonds then outstanding in respect of which default in the payment of principal or
interest exists, or (2) the Requisite Bondholders in the case of any other default; provided,
however, that there shall not be waived without the consent of all Bondholders (a) an y event of
default in the payment of the principal of any outstanding Bonds at the date of maturity specified
therein, or (b) any default in the payment when due of the interest on any such Bonds unless
prior to such waiver or rescission, arrears of interest, with interest (to the extent permitted by
law) at the rate borne by the Bonds in respect of which such default shall have occurred on
overdue installments of interest or all arrears of payments of principal when due, as the case may
be, 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
Section 8.1 Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed
upon it by this Indenture, and agrees to perform said trusts as a corporate trustee ordinarily
would perform said trusts under a corporate indenture, but no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(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 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 Public Library). 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; but the Trustee may require of the Issuer full information and advice as to the
performance of the covenants, conditions and agreements aforesaid or 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 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 shall be 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 authority or consent is the owner of any Bonds,
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 rely upon a certificate
signed on behalf of the Issuer 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
36
as provided in subsection (g) of this Section, or of which pursuant to said subsection it is deemed
to have notice, the Trustee 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 under its seal to the effect that
an ordinance or resolution in the form therein set forth has been adopted by the Issuer as
conclusive evidence that such ordinance or resolution has been duly adopted and is in full force
and effect.
(f) The duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the Trustee.
(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 and interest 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) [RESERVED]
(i) The Trustee shall not be required to give any bonds or surety in respect of the
execution of the said trusts and powers or otherwise in respect of the premises.
(j) 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
required as a condition of such action by the Trustee, deemed desirable for the authentication of
any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee.
(k) Before taking any action under this Section 8.1 or otherwise and notwithstanding
any other provision of this Indenture, the Trustee shall have the right, but shall not be required, to
demand, as a condition of any action by the Trustee in respect of the withdrawal of any cash, the
release of any property, or any action whatsoever within the purview of this Indenture, a) any
showings, certificates, opinions, appraisals or other information, or corporate action or evidence
thereof deemed appropriate by the Trustee, in addition to that required by the terms hereof, and
b) that indemnity satisfactory to Trustee in its sole discretion be furnished to it for the
reimbursement of all expenses to which it may be put and to protect it against all liability by
reason of any action so taken, except liability which is adjudicated to have resulted from its gross
negligence or willful misconduct in connection with any action so taken. Such indemnity shall
survive the termination of this Indenture.
37
(l) All moneys received by the Trustee shall, until used or applied or invested as
herein provided, be held in trust for the purposes for which they were received but need not be
segregated from other funds except to the extent required by law. The Trustee shall not be under
any liability for interest on any moneys received hereunder except such as may be agreed upon.
(m) If any event of default under this Indenture shall have occurred and be continuing,
the Trustee may exercise such of the rights and powers vested in it by this Indenture and shall
use the same degree of care as a prudent man would exercise or use in the circumstances in the
conduct of his own affairs.
(n) The Trustee agrees to accept and act upon instructions or directions pursuant to
this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that the Issuer shall provide to the Trustee an
incumbency certificate listing designated persons authorized to provide such instructions, which
incumbency certificate shall be amended whenever a person is to be added or deleted from the
listing. The Issuer shall follow up any unsecured e-mail, facsimile transmission or other similar
unsecured electronic methods, by immediately mailing the original documents to the Trustee. If
the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the
Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not
be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s
reasonable reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and
directions to the Trustee, including without limitation the risk of the Trustee acting on
unauthorized instructions, and the risk or interception and misuse by third parties.
Section 8.2 Fees, Charges and Expenses of the Trustee. The Trustee, Registrar and
Paying Agent shall be entitled to payment and/or reimbursement for reasonable fees for its
services rendered hereunder and all advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with such services. Upon an event of
default, but only upon an event of default, the Trustee shall have a right of payment prior to
payment on account of interest on or principal of any Bond for the foregoing advances, fees,
costs and expenses incurred. If the Trustee renders any service hereunder not provided for in this
Indenture, or the Trustee is made a party to or intervenes in any litigation pertaining to this
Indenture or institutes interpleader proceedings relative hereto, the Trustee shall be compensated
reasonably by the Issuer for such extraordinary services and reimbursed for any and all claims,
liabilities, losses, damages, fines, penalties, and expenses, including out-of-pocket and incidental
expenses and legal fees occasioned thereby, and fees for its services rendered in accordance with
the Trustee’s then current fee schedule for default administration. No provision of this Indenture
shall require the Trustee to expend, or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Section 8.3 Notice to Bondholders if Default Occurs. If an event of default occurs of
which the Trustee is by subsection (g) of Section 8.1 hereof required to take notice or if notice of
an event of default be given as in said subsection (g) provided, then the Trustee shall give written
38
notice thereof by registered or certified mail to the last known holders of all Bonds then
outstanding shown by the list of Bondholders required by the terms of this Indenture to be kept at
the office of the Trustee.
Section 8.4 Intervention by Trustee. In any judicial proceeding to which the Issuer is
a party and which in the reasonable judgment of the Trustee and its counsel has a substantial
bearing on the interests of holders of the Bonds, the Trustee may intervene on behalf of
Bondholders and, subject to the provisions of Section 8.1(k), shall do so if requested in writing
by the Requisite Bondholders. The rights and obligations of the Trustee under this Section are
subject to the approval of a court of competent jurisdiction.
Section 8.5 Successor Trustee. Any Public Library or association into which the
Trustee may be converted or merged, or with which it may be consolidated, or to which it may
sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or
any Public Library or association resulting from any such conversion, sale, merger, consolidation
or transfer to which it is a party, ipso facto, shall be and become successor Trustee hereunder and
vested with all of the title to the whole property or trust estate and all the trusts, powers,
discretions, immunities, privileges and all other matters as was its predecessor, without the
execution or filing of any instrument or any further act, deed or conveyance on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 8.6 Resignation by the Trustee. The Trustee and any successor Trustee may at
any time resign from the trusts hereby created by giving thirty days’ written notice to the Issuer
and by registered or certified mail to each registered owner of Bonds then outstanding and to
each holder of Bonds as shown by the list of Bondholders required by this Indenture to be kept at
the office of the Trustee, and such resignation shall take effect at the end of such thirty (30) days,
or upon the earlier appointment of a successor Trustee by the Bondholders or by the Issuer. Such
notice to the Issuer may be served personally or sent by registered or certified mail.
Section 8.7 Removal of the Trustee. The Trustee may be removed at any time after
thirty (30) days’ prior written notice and payment of its fees and expenses 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 Fifty
39
Million Dollars ($50,000,000) if there be such an institution willing, qualified and able to accept
the trust upon reasonable or customary terms.
Section 8.9 Concerning Any Successor Trustees. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer 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. The Trustee may
act on advice or opinion of Counsel and shall not be responsible for any loss or damage resulting
from any action or nonaction by it taken or omitted to be taken in good faith and in reliance on
such advice or opinion of Counsel. In the event the Trustee receives inconsistent or conflicting
requests and indemnity from two or more groups of holders of the Bonds, each representing less
than a majority in aggregate principal amount of the Bonds outstanding, the Trustee, in its sole
discretion, may determine what action, if any, shall be taken and the Trustee may, in its
discretion, take other actions.
Section 8.11 Conditions for Trustee Action. The permissive right of the Trustee to do
things enumerated in this Indenture shall not be construed as a duty. The Trustee shall be under
no obligation to institute any suit, or to undertake any action under this Indenture, or to enter any
appearance or in any way defend in any suit in which it may be made defendant, or to take any
steps in the execution of the trusts hereby created or in the enforcement of any rights and powers
hereunder, until it shall be indemnified to its satisfaction against any and all costs and expenses,
outlays and counsel fees and other anticipated disbursements, and against all liability except to
the extent determined by a court of competent jurisdiction to have been caused solely by its own
gross negligence or willful misconduct. Nevertheless, the Trustee may begin suit, or appear in
and defend suit, or do anything else in its judgment proper to be done by it as the Trustee,
without indemnity, and in such case the Trustee shall, to the extent not reimbursed, reimburse
itself from the monies available under this Indenture for all costs and expenses, outlays and
counsel fees, and expenses and other reasonable disbursements properly incurred in connection
therewith and the Trustee shall be entitled to a preference therefor over any bonds outstanding
hereunder as provided in Section 7.4.
40
Section 8.12 Limitations on Trustee Duties. Except for the express duties set forth in
this Indenture, the Trustee shall not be responsible for any recital herein, or in the Bonds (except
with respect to the certificate of the Trustee endorsed on the Bonds), or for the investment of
monies as herein permitted (except that no investment shall be made except in compliance with
Section 6.5), or for the recording or re-recording, filing or re-filing of this Indenture, or any
supplement or amendment thereto, or the filing of financing statements, or for the validity of the
execution by the Issuer of this Indenture, or of any Supplemental Indentures 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.
(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 revenues, properties or collateral;
(d) To make any other change in this Indenture which, in the judgment of the Trustee,
is not to the prejudice of the Trustee, the Issuer, the Public Library 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;
(f) To issue Additional Bonds in accordance with the provisions of Section 2.9
hereof;
(g) To achieve compliance by this Indenture with any applicable federal securities or
tax law; and
(h) To make amendments to the provisions of this Indenture relating to arbitrage
matters under Section 148 of the Code, if the Issuer shall provide the Trustee with an Opinion of
Bond Counsel to the effect that such amendments would not cause the interest on any Bonds
(excluding Bonds issued pursuant to Section 6.10(c) hereof) to be included in gross income of
the holders of the Bonds for federal income tax purposes.
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, any Bonds,
without the consent of the holder of such Bond, or (b) a reduction in the amount or extension of
42
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, except for the lien of parity obligations as provided in this
Indenture, on a parity with the lien of the Trust 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 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) deprive the owners of any Bonds then outstanding of
the lien thereby created.
Anything herein to the contrary notwithstanding, a supplemental indenture under this
Article which may affect the amount or availability of the Series 20__ Bond proceeds to pay
costs of the Project approved by the Issuer shall not become effective unless and until the Public
Library 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 Public Library at least thirty (30) days prior to the
proposed date of execution and delivery of any such supplemental indenture.
Section 9.3 Trustee Reliance. In executing any Supplemental Indenture, the Trustee
shall receive and will be fully protected in conclusively relying upon an officer’s certificate and
an opinion of Counsel stating that the execution of such Supplemental Indenture is authorized
and permitted by this Indenture and is the legal, valid and binding obligation of the Issuer
enforceable against it in accordance with its terms. The Trustee may, but shall not be obligated
to, enter into any such Supplemental Indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
(End of Article IX)
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ARTICLE X
MISCELLANEOUS
Section 10.1 Satisfaction and Discharge. All rights and obligations of the Issuer under
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 Issuer any moneys and
investments held in any Funds under this Indenture when:
(a) all fees and expenses of the Trustee shall have been paid;
(b) the Issuer shall have performed all of its covenants and promises 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 Issuer, 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 Government Obligations, the principal of and the interest on 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 or redemption price, if applicable, and interest due and
to become due on the Bonds and prior to the redemption date or maturity date thereof, as the case
may be.
Section 10.2 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 and interest of and premium, if any, 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) cash sufficient to make such payment, (2) 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, or (3) a combination of cash
and such Governmental Obligations, 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. 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 5.3 of
this Indenture, or if the Bonds are not by their terms subject to redemption within the next
succeeding sixty (60) days, until the Issuer shall have given the Trustee in form satisfactory to
the Trustee irrevocable instructions to notify, as soon as practicable, the Owners of the Bonds,
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 10.2 and stating the
44
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, on said Bonds, plus interest thereon
to the due date thereof; or (b) the maturity of such Bonds.
All moneys so deposited with the Trustee as provided in this Section 10.2 may also be
invested and reinvested, at the written direction of the Issuer, 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 10.2 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 10.2, all moneys or Governmental Obligations set aside
and held in trust pursuant to the provisions of this Section 10.2 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 10.2 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 10.2 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.
Section 10.3 Application of Trust Money. All money or investments deposited with or
held by the Trustee pursuant to Section 10.1 or Section 10.2 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 Trustee, to the persons entitled thereto,
of the principal 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 10.4 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 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 Issuer shall not be deemed to be outstanding hereunder for the purpose of
determining whether such requirement has been met. 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
45
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 Bonds until the Trustee shall have
received notice in writing to the contrary.
Section 10.5 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, the Public
Library 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, the Public Library and the holders
of the Bonds as herein provided.
Section 10.6 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 10.7 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 Public
Library, 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
46
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 follows:
To the Public Library: St. Joseph County Public Library
304 South Main Street
South Bend, Indiana 46601
Attention: Library Director
To the Issuer: City of South Bend, Indiana
227 W. Jefferson Blvd., Suite 400S
South Bend, Indiana 46601
Attention: City Clerk
To the Trustee: _________________________
_________________________
_________________________
Attention: Corporate Trust Department
Section 10.8 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. The exchange of copies of this Indenture and of signature pages by facsimile
or other electronic transmission shall constitute effective execution and delivery of this Indenture
as to the parties hereto and may be used in lieu of the original Indenture and signature pages for
all purposes.
Section 10.9 Applicable Law. This Indenture shall be governed exclusively by the
applicable laws of the State of Indiana.
Section 10.10 Immunity of Officers and Directors. No recourse shall be had for the
payment of the principal of or interest 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
Public Library, as such, either directly or through the Issuer or any successor Public Library,
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.
Section 10.11 Payments or Performance Due on Saturdays, Sundays and Holidays.
Except as specifically provided herein, if the last day for making any payment of principal of,
redemption price or interest on any Bonds or taking any action, including, without limitation,
exercising any remedy, under this Indenture shall be a Saturday, Sunday or a legal holiday or a
day on which banking institutions are authorized by law to close, then such payment may be
made, or such action may be taken, on the next succeeding business day, and, if so made or
taken, shall have the same force and effect as if made or taken on the date fixed for payment,
47
redemption or performance as if made on the date otherwise required by this Indenture. The
amount of any payment due under this Indenture shall not be affected because payment is made
on a date other than the date specified in this Indenture pursuant to this section.
Section 10.12 Force Majeure. The Trustee shall not be responsible for delays or failures
in performance resulting from acts beyond its control, including without limitation, acts of God,
strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire,
communication line failures, computer viruses or failures, power failures, earthquakes or other
disasters.
(End of Article X)
48
IN WITNESS WHEREOF, the CITY OF SOUTH BEND, INDIANA, has caused these
presents to be signed in its name and behalf by the Mayor and its corporate seal to be hereunto
affixed and attested by its Clerk, and to evidence its acceptance of the trusts hereby created, U.S.
Bank National Association, Indianapolis, Indiana, has caused these presents to be signed in its
name and behalf by, 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
By:____________________________
Mayor
(SEAL)
Attest:
Clerk
____________________________, as Trustee
By:
Printed:
Title:
Attest:
By:
Printed:
Title:
A-1
EXHIBIT A
Form of Series 20__ Bonds
No. __R-1
UNITED STATES OF AMERICA
STATE OF INDIANA ST. JOSEPH COUNTY
CITY OF SOUTH BEND, INDIANA
TAX INCREMENT ECONOMIC DEVELOPMENT REVENUE BOND,
SERIES 20__ (COMMUNITY EDUCATION CENTER PROJECT)
Interest
Rate
Maturity
Date
Original
Date
Authentication
Date
CUSIP
______% _________,____ __________, 20__ __________, 20__ ________
Registered Owner: CEDE & CO.
Principal Amount: __________________________________DOLLARS ($__________)
The City of South Bend, Indiana (the “Issuer”), a municipal Public Library 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 or registered
assigns, but solely from the payments of Pledged Revenues hereinafter referred to pledged and
assigned for the payment hereof, the Principal Amount as set forth above, unless this Series 20__
Bond (as hereinafter defined) shall have previously been called for redemption and payment of
the redemption price made or provided for, and to pay interest on the unpaid principal amount
hereof, in like money, but solely from said payments, at the Interest Rate set forth above, payable
on each February 1 and August 1, commencing February 1, 2019 (each an “Interest Payment
Date”) until the Principal Amount is paid in full. Interest on this Series 20__ Bond shall be
payable from the Interest Payment Date next preceding the date of authentication thereof (the
“Interest Date”), except that: (i) if this Series 20__ Bond is authenticated on or prior to January
15, 2019, the interest shall be payable from the Original Date set forth above; (ii) if this Series
20__ Bond is authenticated on or after the fifteenth day of the calendar month immediately
preceding an Interest Payment Date (the “Record Date”), the interest shall be payable from such
Interest Payment Date; and (iii) if interest on this Series 20__ Bond is in default, interest shall be
payable from the day after the date to which interest hereon has been paid in full. Interest shall
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
The final principal and interest payment on this bond is payable upon presentment at the
office of __________________, as trustee (the “Trustee,” “Registrar” or “Paying Agent”), in
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______________, Indiana, or at the principal office of any successor trustee. All sinking fund
redemption payments and all payments of interest on this bond (except the final interest
payment) shall be paid by wire transfer on each interest payment date to the Registered Owner as
of the Record Date at the address as it appears on the registration books kept by the Registrar or
at such other address as is provided to the Paying Agent in writing by the Registered Owner. All
payments of principal and interest on this bond shall be payable in any coin or currency of the
United States of America which on the date of such payment shall be legal tender for the
payment of public and private debts.
This bond is an authorized bond of the Issuer, designated as the City of South Bend,
Indiana, Economic Development Tax Increment Revenue Bonds, Series 20__ (Community
Education Center Project), dated ____________, 20__ (the “Series 20__ Bonds”), issued
pursuant to Ordinance ____, adopted by the Common Council of the Issuer on ______, 20__ (the
“Bond Ordinance”) and under and secured by a Trust Indenture, dated as of _______ 1, 20__
(the “Indenture”), duly executed and delivered by the Issuer to the Trustee, to which reference is
hereby made for a description of the property securing the Series 20__ Bonds and any additional
bonds issued thereunder (the “Additional Bonds”) (the Series 20__ Bonds and any Additional
Bonds, collectively, the “Bonds”), and the rights under the Indenture of the Issuer, the registered
owners of the Bonds and the Trustee. The Series 20__ Bonds are limited in aggregate principal
amount of $4,800,000. The Series 20__ Bonds are being issued for the purpose of providing
funds to (a) finance the cost of the Project (as defined in the Indenture), (b) fund a Debt Service
Reserve Fund, and (c) pay certain of the costs incurred in connection with and on account of the
issuance of the Series 20__ Bonds. The Issuer has agreed to issue the Series 20__ Bonds and to
provide a portion of proceeds thereof to the St. Joseph Public Library, St. Joseph County, Indiana
(the “Public Library”), pursuant to the terms of a Financing Agreement, dated as of _______ 1,
20__ (the “Financing Agreement”), which prescribes certain of the terms and conditions under
which such proceeds and other funds will be used by the Public Library.
The Bonds are all equally and ratably secured by and entitled to the protection of the
Indenture. The Indenture permits the issuance of Additional Bonds under the conditions set out
in Section 2.9 thereof and allows the Issuer to terminate the security of the Indenture for Bonds
by establishing a trust fund under the conditions set out in Section 10.2 thereof. Pursuant to the
Indenture, the Trust Estate (as created and defined in the Indenture), consisting of the funds and
accounts of the Indenture and a pledge and assignment of the Pledged Revenues (as defined in
the Indenture), is pledged and assigned by the Issuer to the Trustee as security for the Bonds.
The Bonds are issued pursuant to and in full compliance with the Constitution and laws of the
State of Indiana, particularly Indiana Code, Title 36, Article 7, Chapters 11.9 and 12 (the “Act”),
and by appropriate action duly taken by the Issuer which authorizes the execution and delivery of
the Indenture. The Series 20__ Bonds have been issued in conformity with the provisions,
restrictions and limitations of the Act. Copies of the Indenture are on file at the principal
corporate trust office of the Trustee. BY ACCEPTANCE OF THIS SERIES 20__ BOND, THE
OWNER OF THIS SERIES 20__ BOND HEREBY ACCEPTS ALL THE PROVISIONS OF
THE INDENTURE.
The South Bend Redevelopment Commission (the “Redevelopment Commission”), has,
pursuant to Resolution No. ____ (the TIF Pledge Resolution”), pledged the Pledged Revenues to
the payment of the Series 20__ Bonds.
A-3
The Series 20__ Bonds are issuable in registered form without coupons in the
denominations of $5,000 or any integral multiple thereof. This Series 20__ Bond is transferable
by the registered holder hereof in person or by his 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 20__ Bond. Upon such transfer a new registered Series 20__ Bond will be issued to the
transferee in exchange therefor.
The Issuer and the Trustee 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 interest due hereon and for all other purposes, and neither the Issuer nor the Trustee shall be
affected by any notice to the contrary.
The Series 20__ Bonds maturing on or after ________ 1, 20__, are subject to redemption
at the option of the Issuer on any date on or after __________ 1, 20__, in whole or in part, in
order of maturity determined by the Issuer and by lot within maturities, at face value, plus
accrued interest to the date fixed for redemption and without premium.
The Series 20__ Bonds maturing on __________ 1, 20__, are subject to mandatory
sinking fund redemption on the dates shown below, in the principal amount shown below, plus
accrued interest and without premium:
Date Amount
_________ 1, 20__ $__________
___________1, 20__* $__________
*Final Maturity
If fewer than all of the Series 20__ Bonds at the time outstanding are to be called for
redemption, the maturities of Series 20__ Bonds or portions thereof to be redeemed shall be
selected by the Trustee at the direction of the Issuer. If fewer than all of the Series 20__ Bonds
within a maturity are to be redeemed, the Trustee shall apply moneys available for redemption on
a pro rata basis, based on the respective portion of the principal amount of Series 20__ Bonds
held by the respective owners of the Series 20__ Bonds within such maturity that shall be
redeemed.
In the event any of the Series 20__ Bonds are called for redemption as aforesaid, notice
thereof identifying the Bonds to be redeemed will be given by mailing a copy of the redemption
notice by first class mail not less than thirty (30) days nor more than forty-five (45) days prior to
the date fixed for redemption to the Registered Owner of the Series 20__ 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 20__ Bond, shall
not affect the validity of any proceedings for the redemption of other Series 20__ Bonds.
All Series 20__ 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.
The Series 20__ Bonds, and the interest payable thereon, 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 20__ Bonds, as to both principal and interest, are not an obligation or liability of the
Issuer, 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 the Pledged
Revenues pledged and assigned for payment of the Bonds in accordance with the
Indenture. 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 the interest on this Series 20__ Bond. The Series 20__ 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 interest on
the Series 20__ Bonds. The Issuer has no taxing power with respect to the Series 20__
Bonds. No covenant or agreement contained in the Series 20__ Bonds or the Indenture
shall be deemed to be a covenant or agreement of any member, director, officer, agent,
attorney or employee of the City of South Bend Economic Development Commission (the
“Economic Development Commission”), the Redevelopment Commission or the Issuer in
his or her individual capacity, and no member, director, officer, agent, attorney or
employee of the Economic Development Commission, the Redevelopment Commission or
the Issuer executing the Series 20__ Bonds shall be liable personally on the Series 20__
Bonds or be subject to any personal liability or accountability by reason of the issuance of
the Series 20__ Bonds. Under no circumstances shall the Public Library be liable for
making any payments due under the Indenture or on the Series 20__ Bonds, including any
payment of principal of, premium, if any, or interest on the Series 20__ Bonds.
The Redevelopment Commission reserves the right to authorize and issue additional
obligations payable from the Pledged Revenues on a parity with the pledge thereof to the bonds
of the issue of which this Series 20__ Bond is a part, subject to satisfaction of the conditions set
forth in the TIF Pledge Resolution.
The holder of this Series 20__ 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. Modifications or
alterations of the Indenture, or of any supplements thereto, may be made to the extent and in the
circumstances permitted by the Indenture.
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
A-5
issuance of this Series 20__ Bond exist, have happened and have been performed, and that the
issuance, authentication and delivery of this Series 20__ Bond have been duly authorized by the
Issuer.
This Series 20__ 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.
*****
A-6
IN WITNESS WHEREOF, the City of South Bend, Indiana, in St. Joseph County,
Indiana, has caused this Series 20__ Bond to be executed in its name and on its behalf by the
manual or facsimile signature of the Mayor and its corporate seal to be hereunto affixed
manually or by facsimile and attested to by the manual or facsimile signature of its Clerk.
CITY OF SOUTH BEND, INDIANA
By:____________________________
Mayor
(SEAL)
Attest:
Clerk
CERTIFICATE OF AUTHENTICATION
This bond is one of the Series 20__ Bonds described in the within mentioned Indenture.
____________________________, as Trustee
and Registrar
By:
Authorized Officer
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please Print or Typewrite Name and Address) the within Series
20__ Bond and all rights, title and interest thereon, and hereby irrevocably constitutes and
appoints attorney to transfer the within 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 must
an eligible guarantor institution participating corresponds with the name of the registered
in a Securities Transfer Association of a owner as it appears upon the face of the
recognized signature guarantee program. within Series 20__ Bond in every particular,
without alteration or enlargement or any change
whatever.
ABBREVIATIONS
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
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.
B-1
EXHIBIT B
FORM OF DISBURSEMENT REQUEST FROM
THE CONSTRUCTION FUND
_________________________, as Trustee
_________________________
_________________________
Attention: Corporate Trust Department
Re: Requisition No. __
Disbursement of Funds from the Construction Fund
Pursuant to Section 4.5 of the Trust Indenture, dated as of __________ 1, 20__ (the
“Indenture”), between the City of South Bend, Indiana (the “Issuer”), and __________,
__________, __________, as trustee (the “Trustee”), the undersigned, as an Authorized
Representative of the Public Library, hereby requests the Trustee to pay to the Public Library or
to the person(s) listed on the disbursement schedule attached hereto (the “Disbursement
Schedule”) out of the moneys on deposit in the Construction Fund (the “Construction Fund”), the
aggregate sum of $___________, for the purpose of paying such person(s) or to reimburse the
Public Library in full, as indicated in the Disbursement Schedule and in accordance with the
Financing Agreement, for advances, payments and expenditures made by it in connection with
the items listed in the Disbursement Schedule.
In connection with this request, the undersigned hereby certifies, represents and warrants
that:
1. Each item for which disbursement is requested hereunder is properly payable out
of the Construction Fund in accordance with the terms and conditions of the Financing
Agreement, and none of those items has formed the basis for any disbursement heretofore made
from the Construction Fund.
2. Each such item is or was necessary in connection with the acquisition,
construction, equipping, installation or improvement of the property constituting the Project.
3. The disbursement hereby requested will be used to pay such person(s), or to
reimburse the Public Library in full, for each item that has formed the basis of this request as
described on the Disbursement Schedule attached hereto.
4. This request constitutes the approval of the Public Library of each disbursement
hereby requested.
5. This request and all invoices and other documentation attached hereto has been
provided to an authorized representative of the Issuer for review and approval.
B-2
6. The Issuer has had an opportunity to review this request and all invoices and other
documentation attached hereto and ask questions of the Public Library and seek additional
information.
Any terms not otherwise defined herein shall have the meaning ascribed thereto in the
Indenture.
IN WITNESS WHEREOF, an Authorized Representative of the Public Library has set
his hand as of the _____ day of ________________, 20_____.
St. Joseph County Public Library, St. Joseph County, Indiana
By:
Printed Name:
Title:
Reviewed and approved by an Authorized Representative of the Issuer:
By: ______________________________
Printed Name: _____________________
Title: ____________________________
B-3
Disbursement Schedule
Payee Purpose Amount
C-1
EXHIBIT C
COSTS OF ISSUANCE
$_________
_________
_________
_________
_________
TOTAL $_________
DMS 13531848v1