The URL can be used to link to this page

Home My WebLink About8448-93 Authorizing City of South Bend Economic Development Revenue Refunding Bonds (First Bank Center Project) $8,030,384.77 8448-93 ORDINANCE No. Passed by the Common Council of the City of South Bend, Indiana_ December 13 , 19 93 City Clerk Attest: IRENE K. GAMMON President of Common Council Attest: j ' of the City of South Bend,Presented try by me to the Mayor f December 14, 93 19 City Clerk IRENE K. GAMMON Approved and signed by me AirMayor I ORDINANCE NO. & 4 49 -- Q 3 AN ORDINANCE authorizing the City of South Bend, Indiana to issue its Economic Development Revenue Refunding Bonds (First Bank Center Project) in the aggregate principal amount not exceeding $8,030,384.77 and approving and authorizing other actions in respect thereof. STATEMENT OF PURPOSE AND INTENT: The City is a municipal Corporation and political subdivision of the State of Indiana, and by virtue of Title 36, Article 7, Chapters 11.9 and 12 of the Indiana Code, as amended (the "ACT "), is authorized and empowered to adopt this Ordinance and to carry out its provisions. The South Bend Economic Development Commission, after a public hearing conducted on November 19, 1993, adopted a resolution which has been transmitted to this Common Council finding that the refinancing of certain existing economic development facilities, consisting of the existing First Bank Center office building located at 100 North Michigan Street in South Bend, Indiana (the "Project ") and owned by First Bank Center Limited Partnership, a Minnesota limited partner - ship (the "Partnership ") and leased to 1st Source Corpo- ration, an Indiana corporation ( "1st Source ") by the issuance of revenue bonds of the City of South Bend will be of benefit to the general welfare of the City of South Bend and its citizens and complies with the purposes and provisions of Indiana Code 36 -7 -12, as supplemented and amended, including Indiana Code 36 -7 -11.9 and 5 -1 -5 (the "Act "); and The South Bend Economic Development Commission has approved by such resolution adopted November 19, 1993, the following: (1) Bond Trust Indenture (the "Indenture "), in- cluding the form of bonds therein, between the City of South Bend and NBD Bank, N.A., located in Indianapolis, Indiana (the "Bond Trustee "); (2) Loan Agreement (the "Loan Agreement ") between the City of South Bend and the Partnership, and recog- nizing the issuance of the Note of the Partnership to the City; (3) Bond and Note Purchase Agreement among the City of South Bend, the Partnership and Allstate Life Insurance Company, Northbrook, Illinois; and (4) This Bond Ordinance; such documents being hereinafter referred to collectively as the "Financing Agreements" referred to in the Act; NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, ST. JOSEPH COUNTY, INDIANA, AS FOL- LOWS: Section 1. It is hereby found that the refinancing of the Project as more specifically provided in the Financing Agreements and previously approved by the South Bend Economic Development Commission and.presented to this Common Council, the issuance and sale of revenue refunding bonds by the City of South Bend pursuant to the Act, the loan of the net pro- ceeds thereof to the Partnership for the purpose of the pre- payment of existing bonds of the City, and for the repayment of said loan by the Partnership to be evidenced and secured by the Loan Agreement and Note of the Partnership will be of benefit to the welfare of the City of South Bend and its citizens and complies with the purposes and provisions of the Act. Section 2. The forms of the Financing Agreements approved by the South Bend Economic Development Commission are hereby approved and all such documents are incorporated herein by reference and shall be kept on file by the Clerk. Section 3. The City of South Bend shall issue pursuant to the Act its Economic Development Revenue Refunding Bonds (First Bank Center Project) in an aggregate principal amount not exceeding $8,030,384.77 (the "Bonds ") for the purpose of obtaining funds to loan to the Partnership in order to refi- nance the-Project, as more particularly set out in the Loan Agreement, which Bonds will be payable as to principal, pre- mium, if any, and interest solely from the payments made by the Partnership pursuant to the Loan Agreement and its Note in the aggregate principal amount of the Bonds which will be executed and delivered by the Partnership to evidence and secure said loan, and as otherwise provided in the above - described Indenture. The Bonds shall mature at such times, shall bear interest at 5.52% per annum, shall be subject to such redemption provisions and shall be subject to such other provisions as are set forth in the Indenture as executed. The Bonds shall never constitute a general obligation of, an indebtedness of, or charge against the general credit of the City of South Bend, Indiana. Section 4. The Mayor and Clerk are authorized and directed to sell the Bonds to the purchaser thereof pursuant to the Bond and Note Purchase Agreement, and at a price of 100% of the principal amount thereof. Section 5. The Mayor and Clerk are authorized and directed to execute the documents constituting the Financing 2 Agreements which require their signature, and their execution is hereby confirmed on behalf of the City of South Bend and any other documents which may be necessary or desirable to consummate the transaction, including the Bonds authorized herein. The Clerk is authorized to arrange for the delivery of such Bonds to the purchasers thereof upon payment therefor which will be made to the Trustee. The Mayor and Clerk may by their execution of the Financing Agreements and the Bonds approve chances therein without further approval of this Common Council or the South Bend Economic Development Commis- sion if such changes do not effect the terms set forth in Sections 27(a)(1) through 27(a)(10) of IC 36 -7 -12. Section 6. This Common Council further finds that the refinancing of the Project will not have an adverse com- petitive impact on other facilities of the same kind already operating in the same market area, that the refinancing will help retain existing employment and will be of benefit to the health and general welfare of the City. Section 7. The City of South Bend hereby calls the Prior Bonds (as defined in the Indenture) for redemption on the respective dates set forth in the Indenture as executed and requests the trustee for the Prior Bonds to give notice of such redemption in the manner set forth in the applicable Indenture securing the Prior Bonds. Section 8. The provisions of this Ordinance and the Indenture securing the Bonds shall constitute a contract binding between the City of South Bend and the owners of the Bonds, and, except as provided in the Indenture or Loan Agreement, after the issuance of said Bonds this Ordinance shall not be repealed or amended in any respect which would adversely affect the right of such owners so long as any of said Bonds or the interest thereon remains unpaid. Section 9. This Ordinance shall constitute the approval of the Bonds pursuant to Section 147(f) of the Internal Revenue Code of 1986. Section 10. This Ordinance shall be in full force and effect from and after compliance with procedures required by the Act. 1st READING PUBLIC HEARING 3 rd READING NOT APPROVED 3 REFERRED PASSED a 3_� 3 . -�. Filed in Clerk's 'Office Nov 2 3 1993 IRENE OAMM CITY CLERK. $0. SEND, IN. Tommutrt Irport Xv t4e Taumn floundt of t4r (Itty of Oxt* Ernk: Your Committee OF THE WHOLE to whom was referred BILL NO. 108 -93 A BILL AUTHORIZING THE CITY OF SOUTH BEND INDIANA TO ISSUE ITS ECONOMIC DEVELOPMENT REVENUE REFUNDING BONDS (FIRST BANK CENTER PROJECT) IN THE AGGREGATE PRINCIPAL AMOUNT NOT EXCEEDING $8,030,384.77 AND APPROVING AND AUTHORIZING OTHER ACTIONS IN RESPECT THEREOF. Respectfully report that they have examined the matter and that in their opinion This bill has been recommended to the Council favorable. Tom Zakrzewski Chairman FREE PRESS PUBLISHING CO. BOND AND NOTE PURCHASE AGREEMENT Dated as of November 15, 1993 Re: $8,030,384.77 Economic Development Revenue Refunding Bonds (First Bank Center Project) of CITY OF SOUTH BEND, INDIANA and $[2,235,000] 6.90% Secured Note due April 1, 2012 of FIRST BANK CENTER LIMITED PARTNERSHIP 186034.01.17.B 1057157/JLTA 1/22/93 SECTION TABLE OF CONTENTS HEADING PAGE SECTION 1. PURCHASE AND SALE OF BONDS AND TAXABLE NOTE .......................... 1 Section 1.1. Purpose of Issue ............................................ ............................... l Section 1.2. Description of Bonds and Taxable Note ........... ............................... 2 Section 1.3. Security for the Bonds and Taxable Note ......... ............................... 3 Section 1.4. Purchase of the Bonds and the Taxable Note ...... ..............................3 SECTION 2. CONDITIONS TO OBLIGATIONS ............................ ............................... 4 Section 2.1. Execution of Documents .................................. ..............................4 Section 2.2. Closing Certificate of the Issuer ....................... ..............................4 Section 2.3. Tax Election Certificate ................................. ............................... 4 Section 2.4. Opinions of Counsel ........................................ ..............................4 Section 2.5. Certificate of the Agency ................................. ..............................4 Section 2.6. Proceedings Satisfactory .................................. ..............................4 Section 2.7. Closing Certificate of the Borrower ................ ............................... 5 Section 2.8. Closing and Representation Certificate of FBT . ............................... 5 Section 2.9. Mortgage Title Insurance ............................... ............................... 5 Section2.10. Survey ........................................................... ..............................5 Section 2.11. Evidence of Insurance ..................................... ..............................5 Section 2.12. Environmental Indemnity Agreement ............... ..............................6 Section 2.13. Environmental Protection ................................ ..............................6 Section 2.14. Engineer's Report ........................................... ..............................6 SECTION 3. WARRANTIES AND REPRESENTATIONS OF THE ISSUER ......................... 6 SECTION 4. REPRESENTATIONS AND COVENANTS OF THE BORROWER ..................... 7 SECTION 5. AGREEMENTS OF PARTIES .................................. ............................... 8 Section 5.1. Agreement of Borrower to Accept Financing .... ..............................8 Section 5.2. Borrower Existence; Operation of Project; Transfers of Interests in Project and Borrower ................... ............................... 9 Section 5.3. Limitations on Nature of Business .................... ..............................9 Section 5.4. Indemnification Covenants ............................... ..............................9 Section 5.5. Insurance .................................................... ............................... 10 Section 5.6. Maintenance and Repair ............................... ............................... 10 Section 5.7. Investments ................................................. ............................... 10 Section5.8. Liens .......................................................... ............................... 11 Section5.9. Taxes ......................................................... ............................... 11 Section 5.10. Further Assurances and Corrective Instruments ............................. 11 Section5.11. Inspection ..................................................... .............................11 -i- Section 5.12. Use of Proceeds, ................ ; ........................................................ 12 SECTION 6. THE TAXABLE NOTES ....................................... ............................... 12 Section 6.1. Execution of Taxable Notes .......................... ............................... 12 Section 6.2. Direct Payment ........................................... ............................... 12 Section 6.3. Business Day ............................................... ............................... 12 Section6.4. The Register ............................................... 12 Section 6.5. ............................... Transfers and Exchanges of Taxable Notes; Lost or Mutilated Taxable Notes ............................... ............................... 12 Section 6.6. The New Taxable Notes ............................... ............................... 13 Section6.7. Ownership .................................................. ............................... 14 SECTION 7. PREPAYMENT OF TAXABLE NOTE ...................... ............................... 14 Section7.1. Prepayment ................................................. ............................... 14 Section 7.2. Notice of Prepayment .................................. ............................... 14 SECTION 8. DEFAULTS AND REMEDIES ................................ ............................... 15 Section 8.1. Events of Default ......................................... ............................... 15 Section8.2. Remedies .................................................... ............................... 16 Section 8.3. Rescission of Acceleration ............................ ............................... 17 SECTION 9. MISCELLANEOUS ............................................. ............................... 17 Section9.1. Definitions .................................................. ............................... 17 Section9.2. Expenses ..................................................... ............................... 17 Section9.3. Notices ....................................................... ............................... 18 Section9.4. Survival ...................................................... ............................... 18 Section 9.5. Successors and Assigns ................................. ............................... 19 Section 9.6. Governing Law ........................................... ............................... 19 Section 9.7. Duplicate Originals ...................................... ............................... 19 Section 9.8. Limitation on Issuer's Liability ..................... ............................... 19 SignaturePage ............................................................................ ............................... 20 -ii- LIST OF EXHIBITS Exhibit A — Description of Closing Opinion of Bond Counsel and Purchaser's Special Counsel Exhibit B — Description of Closing Opinion of Counsel for Issuer Exhibit C — Description of Closing Opinion of Counsel for Borrower Exhibit D — Description of Closing Opinion of Counsel for FBT Exhibit E — Form of Loan Agreement Exhibit F — Form of Indenture Exhibit G — Form of Mortgage Exhibit H — Form of Assignment of Lease Exhibit I — Form of Assignment of Rents and Leases Exhibit J — Closing Certificate of Borrower Exhibit K — FBT Closing and Representation Certificate Exhibit L — [INTENTIONALLY OMITTED] Exhibit M — Form of Taxable Note Exhibit N — Form of Environmental Indemnity -iii- BOND AND NOTE PURCHASE AGREEMENT RE: $8,030,384.77 Economic Development Revenue Refunding Bonds (First Bank Center Project) (the "Bonds ") of CITY OF SOUTH BEND, INDIANA and [$2,235,000] 6.90% Secured Note due April 1, 2012 of FIRST BANK CENTER LIMITED PARTNERSHIP (the "Taxable Note ") Dated as of November 15, 1993 Allstate Life Insurance Company Private Placements Department Allstate Plaza West J2A 3100 Sanders Road Northbrook, Illinois 60062 Ladies and Gentlemen: The undersigned, CITY OF SOUTH BEND, INDIANA, a municipal corporation and political subdivision of the State of Indiana (the "Issuer "), and FIRST BANK CENTER LIMITED PARTNERSHIP, a limited partnership organized and existing under the laws of the State of Minnesota (the "Borrower"), hereby severally agree with you and you agree with the Issuer and the Borrower, as follows: SECTION 1. PURCHASE AND SALE OF BONDS AND TAXABLE NOTE. Section 1.1. Purpose of Issue. (a) Pursuant to the authority contained in Indiana Code 36 -7 -12, (the "Act "), the Issuer proposes to issue and sell its bonds as herein provided to provide funds to finance a portion of the redemption price of and the amount required to prepay the Issuer's $9,000,000 Economic Development Revenue Bonds (First Bank Center Project) (the "Prior Bonds ") pursuant to Section 301(b) of that certain Indenture of Trust dated as of March 15, 1981 (the "Prior Indenture ") between the Issuer and The Indiana National Bank, as trustee (the "Prior Trustee"). The Prior Bonds were initially issued to finance a portion of the costs of acquiring and constructing a bank office building located in the City of South Bend, Indiana (the "Project ") and leased to FBT Bancorp, Inc., an Indiana Corporation ( "FBT" ). The Issuer, in accordance with the applicable provisions of a Loan Agreement to be dated as of November 15, 1993 (the "Loan Agreement"), substantially in the form attached hereto as Exhibit E, between the Issuer and the Borrower, and of the hereinafter described Indenture, now proposes to authorize, issue and sell an issue of its bonds, to be designated "Economic Development Revenue Refunding Bonds (First Bank Center Project) ", in an aggregate principal amount of $8,030,384.77 (the "Bonds "). (b) The Borrower requires funds to refinance its $2,500,000 Mortgage Note dated April 20, 1982 (the "Prior Taxable Note "). To provide funds to finance the prepayment of the Prior Taxable Note, the Borrower proposes to issue and sell its 6.90% Secured Note due April 1, 2012 (the "Taxable Note ") in the original aggregate principal amount of $2,235,000 pursuant to the terms of this Bond and Note Purchase Agreement (this "Bond Purchase Agreement" or this "Purchase Agreement"). Section 1.2. Description of Bonds and Taxable Note. The Bonds will be dated the date of issuance thereof, will bear interest from the date thereof, will be issued under and secured by and have the other rights, terms and provisions provided therefor in an Indenture of Trust (the "Indenture ") to be dated as of November 15, 1993 between the Issuer and NBD Bank, N.A., as trustee (the "Trustee"), substantially in the form attached hereto as Exhibit F. (b) Description of Taxable Note. The Taxable Note will be dated the date of issue, will have the other rights, terms and provisions provided for herein, will bear interest at the rate of six and ninety one - hundredths percent (6.90 %) per annum on such principal amount from time to time remaining unpaid, and shall be payable in installments as follows: (i) one installment of interest only (computed on the actual number of days elapsed and on the basis of a 365 -day year), payable on the first day of the month following the Closing Date; two hundred nineteen (219) equal installments, each in the amount of $ and each including both principal and interest (computed on the basis of a 360 -day year of twelve 30 -day months), payable on the first day of the second month following the Closing Date and on the first day of each month until 219 such payments shall have been made; and (iii) a final installment, payable on the first day of the 220th month following the Closing Date, in the amount of the entire unpaid principal balance of and interest on the Taxable Note; and will be otherwise substantially in the form attached hereto as Exhibit M. The Taxable Note is not subject to prepayment or redemption at the option of the Borrower prior to its express maturity date except on the terms and conditions and in the amount (and with premium, if any) set forth in Section 7 of this Purchase Agreement. The Taxable Note shall bear interest on any overdue installment of principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest at a rate per annum of ten and ninety one - hundredths percent (10.90 %). -2- Each combined installment of principal and interest, when paid, shall be first applied to the payment of interest accrued to and including the date fixed for payment on the unpaid principal amount of the Taxable Note, and the balance thereof to payment on account of the principal of the Taxable Note. Section 1.3. Security for the Bonds and Taxable Note. The Bonds and Taxable Note will be secured by (i) the Indenture, constituting an assignment to the Trustee of the Issuer's interest in and to the Loan Agreement and a pledge to the Trustee of the Note (the "Note") of the Borrower in the principal amount of $8,030,384.77 issued to the Issuer pursuant to the Loan Agreement, (ii) a Mortgage, Assignment of Rents and Security Agreement (the "Mortgage"), substantially in the form attached hereto as Exhibit G, to be dated as of November 15, 1993, from the Borrower to the Trustee, constituting a lien on and security interest in the Borrower's interest in the Project, (iii) an Assignment of Lease (the "Assignment of Lease "), substantially in the form attached hereto as Exhibit H, from the Borrower to the Trustee, constituting an assignment of that certain Operating Lease (the "FBT Lease"), dated as of April 15, 1981, between the Borrower, as lessor, and FBT, as lessee, and (iv) an Assignment of Rents and Leases (the "Assignment of Rents "), substantially in the form attached hereto as Exhibit I, to be dated as of November 15, 1993, from FBT to the Trustee constituting an assignment of all leases wherein FBT is lessor. Section 1.4. Purchase of the Bonds and the Taxable Note. Subject to the terms and conditions set forth in Section 2 hereof, and on the basis of the representations and warranties hereinafter set forth or provided for, (a) the Issuer hereby agrees to issue, sell and deliver to you, and you agree to purchase from the Issuer, the Bonds, in the principal amount of [$8,018,300] and (b) the Borrower hereby agrees to issue, sell and deliver to you, and you agree to purchase from the Borrower, the Taxable Note, in the original principal amount of $[2,235,000]. Delivery of the Bonds and the Taxable Note will be made at 10:00 A.M. on such date (the "Closing Date "), not later than November 30, 1993, as the Borrower shall designate to you, the Trustee and the Issuer by not less than five business days' prior notice. Delivery of the Bonds and the Taxable Note shall be made at the offices of Chapman and Cutler, 111 West Monroe Street, Chicago, Illinois, against payment therefor in funds immediately available in Indianapolis, Indiana, payable to the Trustee. The Bonds to be purchased by you on the Closing Date will be in the form of one Bond, in fully registered form, payable to you or your registered assigns, and in the principal amount set forth above. The Taxable Note to be purchased by you on the Closing Date will be in the form of one Taxable Note, in fully registered form, payable to you or your nominee, and in the principal amount set forth above. The proceeds from the sale of the Bonds will be deposited by you, on behalf of the Issuer, in the Bond Proceeds Fund pursuant to Section 601 of the Indenture. Disbursements from the Bond Proceeds Fund will be made to or upon the order of the Borrower pursuant to the Escrow Agreement to be dated as of November 15, 1993, among the Prior Trustee, the Issuer and the Trustee. -3- SECTION 2. CONDITIONS TO OBLIGATIONS. Your obligation to purchase the Bonds and the Taxable Note on the Closing Date shall be subject to the following conditions precedent: Section 2.1. Execution of Documents. On or prior to the Closing Date, the Indenture, the Loan Agreement, the Note, the Bonds, the Taxable Note, the Environmental Indemnity (as hereinafter defined), the Mortgage, the Assignment of Lease and the Assign- ment of Rents (collectively, the "Documents ") shall have been duly executed and delivered by the parties thereto and shall be in full force and effect on the Closing Date, and all filings and recordings required by law (including financing statements) in order to establish and maintain the rights and the lien and security interest of the Trustee under the Indenture in and to the Loan Agreement and the Note and under the Mortgage and the Assignment of Rents in and to the Project, shall have been duly made. Section 2.2. Closing Certificate of the Issuer. On the Closing Date, you shall have received a certificate dated such date and signed by the Mayor and the City Clerk of the Issuer, satisfactory to you and to Bond Counsel. Section 2.3. Tax Election Certificate. On the Closing Date, the Issuer shall have furnished evidence satisfactory in form and substance to you of the filing with the Internal Revenue Service District Director or the Director of the Regional Service Center, with whom the Borrower and any principal user of the Project is required to file its 1992 Federal consolidated income tax return, a statement in the form required by Section 1.103 - 10(b)(2)(vi) of the Regulations issued pursuant to Section 103(b)(6)(D) of the Internal Revenue Code of 1986, as amended, and the Borrower and any other such principal user shall have delivered any certification with respect thereto which counsel for the Issuer or bond counsel may have reasonably requested. Section 2.4. Opinions of Counsel. On the Closing Date, you shall have received from Chapman and Cutler, bond counsel and your special counsel, from the Corporation Counsel for the Issuer, from Lindquist & Vennum, counsel for the Borrower, and from Vince Tamburo, Esq., general counsel for FBT, opinions substantially to the effect set forth in Exhibits A, B, C and D, respectively, hereto, each of which opinions shall be satisfactory in form and substance to you and your special counsel. Section 2.S. Certificate of the Agency. On the Closing Date, you shall have received from the City of South Bend Department of Redevelopment (the "Agency ") containing its acknowledgment (i) that the Ground Lease for Private Development dated October 22 1979 (the "Ground Lease ") between the Agency, as lessor, and FBT, as lessee, is in full force and effect on the date thereof and that no Event of Default has occurred and is continuing thereunder, and (ii) as to such other matters as you shall reasonably request. Section 2.6. Proceedings Satisfactory. On the Closing Date, all proceedings taken in connection with the Project and the creation, issuance and sale of the Bonds, the execution and delivery of the other Documents and all other documents and papers relating thereto, -4- shall be reasonably satisfactory to you and your special counsel, and you and they shall have received copies of such documents and papers as you and they may reasonably request in connection therewith or as a basis for such counsel's opinions, all in form and substance reasonably satisfactory to you and such counsel. Section 2.7. Closing Certificate of the Borrower. On the Closing Date, you shall have received the certificate of the Borrower, dated the Closing Date, signed by its general partners, substantially in the form attached hereto as Exhibit J. Section 2.8. Closing and Representation Certificate of FBT. On the Closing Date, you shall have received the certificate of FBT, dated the Closing Date, signed by its President or any Vice President, substantially in the form attached hereto as Exhibit K (the "FBT Closing and Representation Certificate"). Section 2.9. Mortgage Title Insurance. There shall be in full force and effect an ALTA Leasehold Mortgage Title Insurance Policy - Form 1987, with Comprehensive Endorsement Number 1 (or an ALTA Form 9 Endorsement), an ALTA 3.1 Zoning Endorsement (with parking), an endorsement deleting Item 7 from the Exclusions from Coverage and also containing an endorsement insuring the validity of the FBT Lease, in form and substance satisfactory to you and your special counsel, issued by Chicago Title Insurance Company or other title insurance company acceptable to you (the "Title Company ") issued in an amount equal to the aggregate sum of the principal amount of the Bonds and the principal amount of the Taxable Note, insuring the lien of the Mortgage to be a first lien against the Project, subject only to such exceptions as shall be satisfactory to you and your special counsel; provided, however, that such policy shall contain no exception for (w) matters which would be shown by an inspection or accurate survey of the Project, (x) rights of parties in possession, (y) easements and other matters not of record, or (z) filed or unfiled mechanics' liens. Section 2.10. Survey. You shall have received a current survey satisfactory to you prepared by a registered surveyor licensed in the State of Indiana, containing the same legal description of the Project site contained in the Mortgage and the mortgage title insurance policy described in Section 2.9 above. The survey shall be certified to you and the Title Company. The survey shall be prepared in accordance with the minimum standard detail requirements for land surveys for a Class A Survey adopted by the American Land Title Association and the American Congress on Surveying and Mapping, 1992 (with the following additional Table A requirements shown: 1, 3, 4, 6, 7, 8, 10, 11 and 13), and shall show the location of all locatable exceptions listed in the title insurance policy delivered on the Closing Date. Section 2.11. Evidence of Insurance. You shall have received policies or certificates of insurance evidencing compliance by the Borrower with the requirements of Section 1.03 of the Mortgage. -5- Section 2.12. Environmental Indemnity Agreement. You shall receive on the Closing Date an Environmental Indemnity Agreement in the form attached hereto as Exhibit N (the "Environmental Indemnity"). Section 2.13. Environmental Protection; Audit. (a) You shall have received evidence satisfactory to you of the issuance, on terms satisfactory to you, by the appropriate Federal, state, county, regional or local authorities, of all licenses, approvals or permits necessary in connection with the operation of the Project and lawful occupancy thereof for the purpose for which such Project was created (including the issuance by any Federal, state, county, regional or local authority whose jurisdiction involves environmental protection of any such licenses, approvals or permits). (b) Not less than ten (10) days before the Closing Date, you shall have received and approved a Phase I environmental report prepared by an accredited environmental engineer certifying that the Project is free of toxic and /or Hazardous Wastes. This Phase I environmental report shall include the following items: 1. A review of the Project and surrounding land use history including a review of time comparison aerial photography; 2. Findings as a result of contact with Federal, State and Local regulatory officials regarding possible chemical releases, site investigations, environmental actions or past permits relating to the Project; 3. A site inspection, including a walk- through by an environmental engineer and /or chemical engineer; 4. An interview with any current tenants to identify potential past and/or present uses of toxic Hazardous Materials; and 5. A review of matters of record affecting the Project. Dependent upon the results of the Phase I report, additional testing and reports (including, but not limited to a Phase II environmental report) may be required. Section 2.14. Engineer's Report. You shall have received, not less than ten (10) days before the Closing Date, a report prepared by , addressing the structural and mechanical integrity of the Project (the "Engineer's Report"). The Engineer's Report shall be dated as of a current date and shall be satisfactory to you in all respects. SECTION 3. WARRANTIES AND REPRESENTATIONS OF THE ISSUER. The Issuer warrants and represents to you and to the Borrower that each of the representations and warranties of the Issuer set forth in Section 2.1 of the Loan Agreement is true and correct as of the date of execution and delivery hereof. I on SECTION 4. REPRESENTATIONS AND COVENANTS OF THE BORROWER. The Borrower represents, warrants to you and to the Issuer and agrees as follows: (a) The Borrower is a limited partnership duly organized and existing under the laws of the State of Minnesota and duly qualified to do business in the State of Indiana, has power to enter into and by proper action has been duly authorized to execute, deliver and perform all of the Documents to which it is a party. (b) Neither the execution and delivery of any of the Documents to which the Borrower is a party, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of any of the Documents to which the Borrower is a party, conflicts with or results in a breach of any of the terms, conditions or provisions of the partnership agreement of the Borrower or of any restriction, agreement, or instrument to which the Borrower or any of its partners is now a party or by which it or any of its partners is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any prohibited lien, charge or encumbrance whatsoever upon any of the property or assets of the Borrower or any of its partners under the terms of any instrument or agreement to which the Borrower or any of its partners is now a party or by which the Borrower or any of its partners is bound. (c) The proceeds from the sale of the Taxable Note will be applied to finance the prepayment of the Prior Taxable Note. None of the transactions contemplated by this Purchase Agreement, the Loan Agreement and the Indenture (including, without limitation, the use of the proceeds from the sale of the Taxable Note) will result in a violation of Section 7 of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including, without limitation, Regulations G, T and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II. The Borrower does not own or intend to carry or purchase any "margin security" within the meaning of said Regulation G, including margin securities originally issued by it. None of the proceeds from the sale of the Taxable Note will be used to purchase or carry (or refinance any borrowing the proceeds of which were used to purchase or carry) any "security" within the meaning of the Securities Exchange Act of 1934, as amended. (d) Except for the liens of the Mortgage and the Assignment of Lease, the Borrower has not assigned its right, title and interest in and to the Project to any other Person and there are no liens on the Borrower's interest therein except the liens of the Mortgage, the Leases, the Assignment of Lease and the Assignment of Rents. (h) The Borrower does not know of: (i) any violation of any Environmental Law that may have been committed or is about to be committed by the Borrower or at the Project, including without limitation, a violation relating to Releases, to air, surface water, land or groundwater, or to the withdrawal or use of groundwater, (ii) any administrative or judicial complaint or order that has been filed or is about to -7- be filed against the Borrower alleging violations of any Environmental Law or requiring the Borrower to take any action in connection with the Release of any Hazardous Material into the environment at, to or from the Project, (iii) any notice from a Federal, state, or local governmental agency or private party alleging that the Borrower is or may be liable or responsible for costs associated with a response to or cleanup of a Release of any Hazardous Material into the environment at, to or from the Project or any damages caused thereby, (iv) any notice that the Borrower is subject to Federal, state or local inquiry or investigation evaluating whether any removal or remedial action is needed to respond to the Release of any Hazardous Materials into the environment at, to or from the Project, (v) any past ownership or use of the Land, after all appropriate inquiry consistent with good commercial and customary practice in an effort to minimize liability which takes into account the "innocent landowner" provision set forth at 42 U.S.C. §9601(35), that resulted in a Release of Hazardous Materials onto the Land, (vi) any permits, licenses and approvals necessary for operating the Project, which have not been obtained or are not in good standing, or (vii) any environmental health or safety condition at the Project or any other property which could materially and adversely affect the ability of the Borrower to perform its obligations under any of the Documents to which it is a party. (i) Neither the Borrower nor Hunter, Keith, Marshall & Co. (the only Person authorized or employed by the Borrower as agent, broker, dealer or otherwise in connection with the offering or sale of the Bonds or the Taxable Note or any similar security) has offered any of the Bonds or the Taxable Note or any similar security for sale to, or solicited offers to buy any thereof from, or otherwise approached or negotiated with respect thereto with, any prospective purchaser, other than to you and not more than other institutional investors, each of which was offered a portion of the Bonds or the Taxable Note at private sale for investment and each of which the Borrower or such agent had reasonable grounds to believe, and did believe, and, as to you, after reasonable inquiry does believe, has such knowledge and experience in financial and business matters that you are capable of evaluating the merits and risks of investment in the Bonds or the Taxable Note. The Borrower agrees that neither the Borrower nor anyone acting on the behalf of the Borrower with its consent will offer the Bonds or the Taxable Note or any part thereof or any similar security for issue or sale to, or solicit any offer to acquire the Bonds or the Taxable Note or any part thereof from, anyone so as to bring the issuance and sale of the Bonds or the Taxable Note within the provisions of Section 5 of the Securities Act of 1933, as amended. SECTION 5. AGREEMENTS OF PARTIES. Section 5.1. Agreement of Borrower to Accept Financing. The Borrower agrees to accept the loan to be made to it (for the purpose of prepaying the Prior Note) pursuant to the Loan Agreement from the proceeds of the sale of the Bonds to you pursuant hereto. The Borrower agrees to accept the loan to be made to it (for the purpose of prepaying the Prior Note) pursuant to this Purchase Agreement from the proceeds of the sale of the Taxable Note to you pursuant hereto. The Borrower further agrees not to pay or prepay said loans in whole or in part or accept a permanent first mortgage loan from any other lender other than you during the term of this Purchase Agreement, as the same may from time to time be extended. Section 5.2. Borrower Existence; Operation of Project; Transfers of Interests in Project and Borrower. (a) The Borrower will do or cause to be done all things necessary to preserve and keep in full force and effect the Borrower's existence and standing as a Minnesota limited partnership duly qualified to transact business in the State of Indiana. The Borrower will at all times operate the Project so that it constitutes "economic development facilities" within the meaning of the Prior Act. (b) The Borrower will not sell, assign, transfer, encumber or convey any of its interest in the Real Estate or the Project to any other Person; (c) The Borrower will admit no additional partner, general or limited, and neither the Borrower nor any general partner thereof will transfer or permit the transfer of any partnership interest, general or limited; provided, however, that (i) transfers of present limited partnership interests to other Persons may be made; and (ii) transfers of any partnership interest resulting from the death or incompetency of a transferor may be made. (d) The Borrower will not merge or consolidate with or into any other Person or lease, sell or otherwise dispose of all, or a substantial portion of, its property, assets or business to any other Person without your prior written consent, which consent shall not be unreasonably withheld. Section 5.3. Limitations on Nature of Business. The Borrower will not, without your written consent: (a) engage in any business other than the ownership of the Project, the leasing of the Project to FBT and such other businesses as are reasonably incidental thereto; or (b) own any material property other than property included in the premises (as defined in the Mortgage); or (c) incur or have outstanding any indebtedness for borrowed money, other than the indebtedness evidenced by the Note and the Taxable Note. Section 5.4. Indemnification Covenants. The Borrower agrees to indemnify and save you and your officers harmless against and from all claims by or on behalf of any person, firm, or corporation arising from the conduct or management of, or from any work me or thing done on, the Project while any portion of the Bonds or the Taxable Note remain outstanding, and against and from all claims arising while any portion of the Bonds or the Taxable Note remain outstanding from (i) any condition of the Project, (ii) any breach or default on the part of the Borrower in the performance of any of its obligations under this Purchase Agreement, (iii) any act of negligence of the Borrower or of any of its agents, contractors, servants, employees or licensees, (iv) any act of negligence of any assignee or lessee of the Borrower, or of any agents, contractors, servants, employees or licensees of any assignee or lessee of the Borrower, (v) any violation by the Borrower of state or federal securities law in connection with the offer and sale of the Bonds, or (vi) any performance by you of any act required under this Agreement or the Indenture or requested by the Borrower other than your negligence or willful misconduct. The Borrower agrees to indemnify and save you harmless from and against all costs and expenses incurred in or in connection with any such claim arising as aforesaid or in connection with any action or proceeding brought thereon. In case any such claim shall be made or action brought based upon any such claim in respect of which indemnity may be sought against the Borrower, upon receipt of notice in writing from you setting forth the particulars of such claim or action, the Borrower shall assume the defense thereof including the employment of counsel and the payment of all costs and expenses. You shall have the right to employ separate counsel in any such action and to participate in the defense thereof and the fees and expenses of such counsel shall be at the Borrower's expense. Section S.S. Insurance. The Borrower agrees to maintain all necessary insurance with respect to the Project in accordance with the requirements of the Mortgage. Section 5.6. Maintenance and Repair. The Borrower agrees that it will maintain and repair the Project in accordance with the requirements of the Mortgage. Section 5.7. Investments. The Borrower agrees that it will not make or suffer to exist any loan, advance, extension of credit (excluding accounts receivable arising in the ordinary course of business), or contribution of capital by the Borrower to any other Person or any investment in, or purchase or other acquisition of, the stock, notes, debentures or other securities of any other Person, or commitments therefor, except (a) short -term obligations of, or fully guaranteed by, the United States of America, (b) commercial paper rated Al by Standard and Poor's or P1 by Moody's Investors Service, Inc., (c) demand deposit accounts maintained in the ordinary course of business, and (d) certificates of deposit issued by commercial banks organized under the laws of the United States or any state thereof. -10- Section 5.8. Liens. The Borrower agrees that it will not create, incur, or suffer to exist any Lien, except (a) those for taxes, assessments or governmental charges or levies on its property if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings, (b) those imposed by law, such as carriers', warehousemen's and mechanics' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 60 days past due, (c) those arising out of pledges or deposits under workmen's compensation laws, unemployment insurance, old age pensions, or other social security or retire- ment benefits, or similar legislation, (d) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material way affect the marketability of the same or interfere with the use thereof in the business of the Company, and (e) Liens pursuant to the Mortgage. Section 5.9. Taxes. The Borrower agrees to pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or property, except those that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside. Section 5.10. Further Assurances and Corrective Instruments. The Borrower agrees that it will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for carrying out the intention of or facilitating the performance of the Documents. The Borrower agrees to cause the Mortgage and the Assignment of Lease and all supplements thereto, instruments of further assurance and Uniform Commercial Code financing and continuation statements at all times to be kept, recorded, filed and registered in such manner and in such places, and will cause to be taken any such other action, as may be requested by you and required by law fully to preserve and protect the rights of the Bond holders, the Taxable Note holders and the Trustee as to all property comprising the property mortgaged, assigned, pledged or in which a security interest is created under the Mortgage, the Assignment of Lease and under the Indenture. Section 5.11. Inspection. The Borrower agrees that it will permit you, either personally or by your representatives and agents, to inspect any of the properties, corporate books and financial records of the Borrower, to examine and make copies of the books of -11- accounts and other financial records of the Borrower, and to discuss the affairs, finances and accounts of the Borrower with, and to be advised as to the same by, its officers at such reasonable times and intervals as you may designate. So long as no Event of Default shall have occurred, your expenses incurred in connection with any such inspection shall be paid by you. After the occurrence of any Event of Default, any expenses incurred by you in connection with such inspection shall be paid by the Borrower. Section 5.12. Use of Proceeds. The Borrower agrees that it will use the proceeds of the loan made hereunder to prepay Prior Taxable Note. SECTION 6. THE TAXABLE NOTES. Section 6.1. Execution of Taxable Notes. The Taxable Notes shall be signed on behalf of the Borrower by any person who, at the date of the actual execution of such Taxable Note, shall be a proper officer of the Borrower. Section 6.2. Direct Payment. Notwithstanding anything to the contrary contained in the Taxable Note, this Purchase Agreement or the Mortgage, in the case of any Taxable Note owned by you or your nominee or owned by any subsequent institutional holder which has given written notice to the Borrower requesting that the provisions of this Section 6.2 shall apply, the Borrower will punctually pay when due the principal thereof, interest thereon and premium, if any, due with respect to said principal, without any presentment thereof, directly to you, to your nominee or to such subsequent institutional holder at its address or its nominee's address set forth beneath the your signature hereto or such other address as you, your nominee or such subsequent institutional holder may from time to time designate in writing to the Borrower or, if a bank account with a United States bank is designated for you or your nominee beneath the your signature hereto or in any written notice to the Borrower from the you, from your nominee or from any such subsequent institutional holder, the Borrower will make such payments in immediately available funds to such bank account, marked for attention as indicated, or in such other manner or to such other account in any United States bank as you, your nominee or any such subsequent institutional holder may from time to time direct in writing. Section 6.3. Business Day. Any payment or prepayment of amounts due on the Taxable Notes in accordance with the terms thereof and hereof which is due on a date which is not a Business Day shall be payable on the next preceding Business Day without penalty. Section 6.4. The Register. The Borrower shall cause to be kept at its principal office a register for the registration and transfer of the Taxable Notes (herein called the "Register"). The names and addresses of the holders of the Taxable Notes, the transfers of the Taxable Notes and the names and addresses of the transferees of all Taxable Notes shall be registered in the Register. Section 6.5. Transfers and Exchanges of Taxable Notes; Lost or Mutilated Taxable Notes. (a) The holder of any Taxable Note may transfer such Taxable Note upon the surrender thereof at the principal office of the Borrower. Thereupon, the Borrower shall -12- execute in the name of the transferee a new Taxable Note or Taxable Notes in aggregate principal amount equal to the original principal amount of the Taxable Note so surrendered and deliver such new Taxable Note or Taxable Notes to such transferee. (b) All Taxable Notes presented or surrendered for transfer shall be accompanied (if so required by the Borrower) by a written instrument or instruments of assignment or transfer, duly executed by the holder or by its attorney duly authorized in writing. The Borrower shall not be required to make a transfer or an exchange of any Taxable Note for a period of five days preceding any payment date with respect thereto. No notarial seal shall be necessary for the transfer or exchange of any Taxable Note pursuant to this Section 6.5, and the holder of any Taxable Note issued as provided in this Section 6.5 shall be entitled to any and all rights and privileges granted under the Indenture, the Mortgage and this Purchase Agreement to the holder of a Taxable Note. (c) In case any Taxable Note shall become mutilated or be destroyed, lost or stolen, the Borrower, upon the written request of the holder thereof, shall execute and deliver a new Taxable Note in exchange and substitution for the mutilated Taxable Note, or in lieu of and in substitution for the Taxable Note so destroyed, lost or stolen. The applicant for a substituted Taxable Note shall furnish to the Borrower such security or indemnity as may be reasonably required by it to save it harmless from all risks, and the applicant shall also furnish to the Borrower evidence to its satisfaction of the mutilation, destruction, loss or theft of the applicant's Taxable Note and of the ownership thereof. In case any Taxable Note which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Borrower may, instead of issuing a substitute Taxable Note, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Taxable Note), if the applicant for such payment shall furnish to the Borrower such security or indemnity as it may require to save it harmless, and shall evidence to the satisfaction of the Borrower the mutilation, destruction, loss or theft of such Taxable Note and the ownership thereof. If you or your nominee is the owner of any mutilated, destroyed, lost or stolen Taxable Note, then the affidavit of an authorized officer in form reasonably satisfactory to the Borrower setting forth the fact of destruction, loss or theft and your ownership of the Taxable Note at the time of such mutilation, destruction, loss or theft shall be accepted as satisfactory evidence thereof and no indemnity shall be required as a condition to execution and delivery of a new Taxable Note other than your written agreement to indemnify the Borrower. Section 6.6. The New Taxable Notes. (a) Each new Taxable Note (herein, in this Section 6.6, called a "New Taxable Note ") issued pursuant to Section 6.5(a) or (c) in exchange for or in substitution or in lieu of an outstanding Taxable Note (herein, in this Section 6.6, called an "Old Taxable Note ") shall be dated the date of such Old Taxable Note. The Borrower shall mark on each New Taxable Note (i) the date to which principal and interest have been paid on such Old Taxable Note, and (ii) all payments and prepayments of principal previously made on such Old Taxable Note which are allocable to such New Taxable Note. Interest shall be deemed to have been paid on such New Taxable Note to the date on which interest shall have been paid on such Old Taxable Note, and all payments and -13- prepayments of principal marked on such New Taxable Note, as provided in clause (ii) above, shall be deemed to have been made thereon. (b) Upon the issuance of a New Taxable Note pursuant to Section 6.5(a) or (c), the Borrower may require the payment of a sum to reimburse it for, or to provide it with funds for, the payment of any tax or other governmental charge or any other charges and expenses connected therewith which are paid or payable by the Borrower. (c) All New Taxable Notes issued pursuant to Section 6.5(a) or (c) in exchange for or in substitution or in lieu of Old Taxable Notes shall be valid obligations of the Borrower evidencing the same debt as the Old Taxable Notes and shall be entitled to the benefits and security of the Mortgage and the Assignment of Leases to the same extent as the Old Taxable Notes. Section 6.7. Ownership. The Person in whose name any Taxable Note shall be registered shall be deemed and treated as the owner thereof for all purposes of this Loan Agreement. Payment of or on account of the principal of, premium, if any, and interest on such Taxable Note shall be made only to or upon the order in writing of such registered owner. For the purpose of any request, direction or consent hereunder, the Borrower may deem and treat the registered owner of any Taxable Note as the owner and holder thereof without production of such Taxable Note. SECTION 7. PREPAYMENT OF TAXABLE NOTE. Section 7.1. Prepayment. (a) The Taxable Note is subject to prepayment in whole or in part from moneys deposited with the Trustee in the Bond Fund pursuant to the terms of Section 503(c) of the Indenture. If called for prepayment as a result of such event, the Taxable Note shall be subject to prepayment by the Borrower in whole or part at a prepay- ment price of 100% of the principal amount thereof plus accrued interest to the prepayment date. (b) The Taxable Note is subject to prepayment at the option of the Borrower prior to maturity on any installment payment date on or after May 1, 1997, in whole or in part (pro rata as provided in Section 7.4 hereof) in integral multiples of $1,000, by payment of the principal amount of the Taxable Note, or portion thereof to be prepaid, and accrued interest thereon to the prepayment date together with a premium equal to the Make -Whole Amount, determined as of two Business Days prior to the date of such prepayment pursuant to this Subsection 7.1(b). The provisions of this Subsection 7.1(b) shall not be deemed to require the payment of any penalty or premium upon the maturity of the Taxable Note in accordance with the maturities stated on the face thereof. The Taxable Note shall not, however, be subject to prepayment under this Subsection 7.1(b), if and so long as the Bonds are outstanding, unless any such prepayment shall be accompanied by a proportional prepayment of the Bonds. Section 7.2. Notice of Prepayment. Notice of the call for any prepayment of the Taxable Note pursuant to Section 7.1 hereof, identifying the Taxable Note or portions -14- thereof to be prepaid, shall be given by mailing a copy of the prepayment notice by registered or certified mail not less than sixty (60) nor more than ninety (90) days prior to the date fixed for prepayment to the registered owner of the Taxable Note to be prepaid at the address shown on the registration books of the Borrower. SECTION 8. DEFAULTS AND REMEDIES. Section 8.1. Events of Default. The following shall be Events of Default under this Purchase Agreement. (a) Any representation or warranty made by the Borrower to you under or in connection with any Document shall be materially false as of the date on which made. (b) Any representation or warranty made by FBT to you in the FBT Closing Representation Certificate shall be materially false as of the date on which made or FBT shall fail to comply with any of its agreements contained therein, which failure is not remedied within 30 days after written notice from you. (c) Nonpayment of principal of the Taxable Note or the Note when due, or nonpayment of interest upon the Taxable Note or the Note within. 10 days after the same becomes due. (d) The breach by the Borrower of any of the terms or provisions of Sections 5.7 or 5.8. (e) The breach by the Borrower or FBT (other than a breach which constitutes an Event of Default under Sections 8.1(a), (c) or (d)) of any of the terms or provisions of the Purchase Agreement which is not remedied within 30 days after written notice from you. (f) The occurrence of any "Event of Default", as defined in any Document or the breach of any of the terms or provisions of any Document, which default or breach continues beyond any period of grace therein provided. (g) Failure of the Borrower or FBT to pay any Indebtedness when due, or the default by the Borrower or FBT in the performance of any other term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity. (h) The Borrower, any general partner of the Borrower or FBT shall (i) have an order for relief entered with respect to it under the Federal Bankruptcy Act, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (v) institute any proceeding seeking an order for relief under the Federal Bankruptcy Act or seeking to adjudicate it a bankrupt or insolvent, -15- or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any corporate action to authorize or effect any of the foregoing actions set forth in this Section 8.1(h) or (vii) fail to contest in good faith any appointment or proceeding described in Section 8.1(i). (i) Without the application, approval or consent of the Borrower, any general partner of the Borrower or FBT, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower, any general partner of the Borrower or FBT or any substantial part of its property, or a proceeding described in Section 8.1(h)(v) shall be instituted against the Borrower, any general partner of the Borrower or FBT and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days. 0) Any court, government or governmental agency shall condemn, seize or other- wise appropriate, or take custody or control of all or any substantial portion of the property of the Borrower, any general partner of the Borrower or FBT. (k) The Borrower shall fail within 30 days to pay, bond or otherwise discharge any judgment or order for the payment of money in excess of $100,000, which is not stayed on appeal or otherwise being appropriately contested in good faith. (1) FBT shall sell or otherwise transfer its entire interest in 1st Source Bank, its wholly -owned subsidiary. Section 8.2. Remedies. The Borrower agrees that, when any Event of Default hereunder has occurred and is continuing, you may, without limitation of all other rights and remedies available at law or in equity in such event, exercise any one or more or all, and in any order, of the remedies hereinafter set forth, it being expressly understood that no remedy herein conferred is intended to be exclusive of any other remedy or remedies; but each and every remedy shall be cumulative and shall be in addition to every other remedy given herein or now or hereafter existing at law or in equity or by statute. (a) You may declare the entire unpaid balance of the Taxable Note to be immediately due and payable; and thereupon all such unpaid balance, together with all accrued interest thereon and the Make -Whole Premium, if any, shall be and become immediately due and payable, without any presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived. Upon the Taxable Note becoming due and payable as a result of any Event of Default as aforesaid, the Borrower will forthwith pay to you the entire principal amount of, Make -Whole Premium, if any, and interest accrued on the Taxable Note. (b) You may proceed to direct the Trustee to exercise all rights, privileges and remedies under Article IX of the Indenture. -16- Section 8.3. Rescission of Acceleration. The provisions of Section 8.2 are subject to the condition that if the principal of and accrued interest on all or any outstanding Taxable Notes have been declared immediately due and payable by reason of the occurrence of any Event of Default, you may in your sole discretion, by written instrument filed with the Borrower, rescind and annul such declaration and the consequences thereof, provided that at the time such declaration is annulled and rescinded: (a) no judgment or decree has been entered for the payment of any monies due pursuant to the Taxable Notes or the Indenture; (b) all arrears of interest upon all the Taxable Notes and all other sums payable under the Taxable Notes (except any principal or interest on the Taxable Notes which has become due and payable solely by reason of such declaration under Section 8.2) shall have been duly paid; and (c) each and every other Event of Default shall have been made good, cured or waived; and provided further, that no such rescission and annulment shall extend to or affect any subsequent Event of Default or impair any right consequent thereto. SECTION 9. MISCELLANEOUS. Section 9.1. Definitions. All capitalized terms used herein shall have the meanings given thereto in the Indenture and the Loan Agreement unless otherwise defined herein or if the context shall so otherwise require. Section 9.2. Expenses. Whether or not the Bonds and/or the Taxable Note are sold, the Borrower by its execution of this Agreement confirms its agreement with you and the Issuer to pay all expenses relating to the transactions contemplated hereby, including but not limited to: (a) the cost of preparing and reproducing this Agreement, the Bonds, the Taxable Note and the other documents referred to herein; (b) the reasonable fees and the disbursements of your special and bond counsel and counsel to the Issuer (if any outside counsel is employed by it in connection with the transactions contemplated hereby) and special counsel to the Banks; and the fees of Hunter, Keith, Marshall & Co., and any other financial advisor, mortgage banker or broker retained by the Borrower in connection with the placement of the Bonds and the Taxable Note (you and the Issuer each for itself, hereby represents that, other than Hunter, Keith, Marshall & Co., no such advisor, mortgage banker or broker has been employed or retained by it for such purpose); (c) your reasonable out -of- pocket expenses (other than travel expenses of your employees) incurred in connection with this financing; -17- (d) the fees and expenses of the Trustee provided for in the Indenture; (e) the cost of delivering to your home offices, insured to your satisfaction, the Bonds and the Taxable Note purchased by you on the Closing Date; (f) the costs of publication of notices and all recording and filing fees and stamp and similar taxes and charges, if any, in connection with the creation, issuance and delivery of the Bonds and the Taxable Note, the execution, delivery and recordation of the Mortgage and any financing statements or similar filing required in connection therewith and the costs of any mortgage title insurance policies required by Section 2.9 hereof; and (g) all expenses relating to any future amendments, waivers or consents pursuant to the provisions hereof or of any of the other documents referred to in foregoing clause (a) hereof, whether or not any such amendment, waiver or consent is in fact entered into. Section 9.3. Notices. (a) All communications under this Agreement shall be in writing and shall be mailed, (1) if to any of you, at your respective address appearing on page one hereof, marked for attention as therein indicated, or at such other address as you may have furnished to the Borrower and the Issuer in writing; (2) if to the Borrower, c/o Hunter, Keith, Marshall & Co., 5100 IDS Center, Minneapolis, Minnesota 55402, Attention: Mr. Robert J. Keith, or at such other address as it may have furnished in writing to the Issuer and you; (3) if to the Issuer, at County-City Building, South Bend, Indiana 46601, Attention: Mayor, or at such other address as it may have furnished in writing to the Borrower and you. (b) Any notice so addressed and deposited in the United States mail by registered or certified mail shall be deemed to have been received on the third business day following the mailing thereof. Section 9.4. Survival. All warranties, representations and covenants made by the Issuer or the Borrower herein or in the Loan Agreement or in any certificate or other instrument delivered by it or on its behalf thereunder or under this Agreement shall be considered to have been relied upon by you and shall survive the delivery to you of the Bonds and the Taxable Note regardless of any investigation made by you or on your behalf. All statements in any such certificate or other instrument shall constitute warranties and representations by the Borrower or, as the case may be, the Issuer hereunder and payment or prepayment of either Taxable Notes or Bonds. -18- Section 9.5. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto. The provisions of this Agreement are intended to be for the benefit of all holders, from time to time, of the Bonds and the Taxable Note, and shall be enforceable by any such holder, whether or not an express assignment to such holder of rights under this Agreement has been made by you or your successor or assign. Section 9.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. Section 9.7. Duplicate Originals. Two or more duplicate originals of this Agreement may be signed by the parties, each of which shall be an original but all of which together shall constitute one and the same instrument. Section 9.8. Limitation on Issuer's Liability. Notwithstanding anything herein or in the Bonds to the contrary, any obligations of the Issuer hereunder or under the Bonds shall not be deemed to be general obligations of the Issuer or any municipality, nor payable in any manner from funds raised by taxation, but shall be payable solely from the proceeds derived from the Loan Agreement and the Note and the lien of the Mortgage and any other revenues arising out of or in connection with the leasing or sale of the Project as provided in the Indenture, the Loan Agreement and the Mortgage. -19- If this Agreement is satisfactory to you, please so indicate by signing the acceptance at the foot of counterparts of this Agreement and return such counterparts to the Issuer and to the Borrower whereupon this Agreement will become binding between us in accordance with its terms. ATTEST: (SEAL) Attest: City Clerk Assistant Secretary Very truly yours, CITY OF SOUTH BEND, THE INDIANA By Its Mayor FIRST BANK CENTER LIMITED PARTNERSHIP Robert J. Keith Its General Partner By: HUNTER, KEITH INDUSTRIES INC., a Minnesota corporation Its General Partner -20- Lo Robert J. Keith Its President If this Agreement is satisfactory to you, please so indicate by signing the acceptance at the foot of counterparts of this Agreement and return such counterparts to the Issuer and to the Borrower whereupon this Agreement will become binding between us in accordance with its terms. ATTEST: (SEAL) Attest: City Clerk Assistant Secretary Very truly yours, CITY OF SOUTH BEND, THE INDIANA By Its Mayor FIRST BANK CENTER LIMITED PARTNERSHIP I: Robert J. Keith Its General Partner By: HUNTER, KEITH INDUSTRIES INC., a Minnesota corporation Its General Partner -21- Lo Robert J. Keith Its President ACCEPTED AND AGREED TO: ALLSTATE INSURANCE COMPANY C C Authorized Signatories Payments: All payments by Fedwire transfer of immediately available funds, (identifying each payment as First Bank Center Limited Partnership 6.90% Taxable Note due April 1, 2012) to: BBK — Harris Trust and Savings Bank ABA #071000288 BNF — Allstate Insurance Company Collection Account #168 -114 -7 ORG — First Bank Center Limited Partnership - 1st Source Corp. OBI — DPP - 31909@ AA 3 Payment Due Date (MM/DD/YY) - P (Enter "P" and amount of principal being remitted, for example, P5000000.00) - I (Enter "I ") and amount of interest being remitted, for example, I225000.00) Notices: All notices of scheduled payments and written confirmations of such wire transfer to be sent to: Allstate Insurance Company Investment Operations - Private Placements Allstate Plaza South G4A 2880 Sanders Road Northbrook, IL 60062 Telephone: (708) 402 -8709 Telecopy: (708) 402 -7331 Name of Nominee in which Taxable Note is to be issued: [None] -22- CITY OF SOUTH BEND, INDIANA TO NBD BANK, N.A. TRUSTEE INDENTURE OF TRUST DATED AS OF NOVEMBER 15, 1993 186028.01.152 1057157/STM 11/22/93 TRUSTINDENTURE TABLE OF CONTENTS (This Table of Contents is not a part of this Trust Indenture and is only for convenience of reference) SECTION HEADING PAGE ARTICLE I DEFINITIONS ..................................................... ............................... 8 ARTICLE II THE BONDS ..................................................... ............................... 13 Section 201. Authorized Amount of Bonds ....................... ............................... 13 Section 202. Issuance of Bonds ........................................ ............................... 13 Section 203. Place of Payment ......................................... ............................... 14 Section 204. Execution; Limited Obligation ...................... ............................... 15 Section 205. Authentication ............................................. ............................... 16 Section 206. Form of Bonds ............................................ ............................... 16 Section 207. Delivery of Bonds; Payment of Purchase Price of Bonds ................ 16 Section 208. Mutilated, Lost, Stolen, or Destroyed Bonds ... ............................... 17 Section 209. Registration and Exchange of Bonds; Persons Treated as Owners....................................................... ............................... 17 Section 210. Taxability ................................................... ............................... 18 ARTICLE III PREPAYMENT OF BONDS BEFORE MATURITY ...... ............................... 18 Section 301. Prepayment ................................................. ............................... 18 Section 302. Notice of Prepayment .................................. ............................... 19 Section 303. Cancellation ................................................ ............................... 19 Section 304. Partial Payment or Prepayment of Bonds ....... ............................... 20 ARTICLE IV GENERAL COVENANTS ..................................... ............................... 21 Section 401. Payment of Principal and Interest .................. ............................... 21 Section 402. Performance of Covenants; Issuer ................. ............................... 21 Section 403. Enforcement of Loan Agreement and Note .... ............................... 21 Section 404. Filing of Financing Statements ...................... ............................... 21 Section 405. Inspection of Project Books .......................... ............................... 21 Section 406. List of Bondholders ..................................... ............................... 22 Section 407. Rights under Loan Agreement ...................... ............................... 22 ARTICLEV BOND FUND .................................................... ............................... 22 Section 501. Source of Payment of Bonds ......................... ............................... 22 Section 502. Creation of the Bond Fund; Restoration Fund . ............................... 22 -i- Section 503. Payments into the Bond Fund ........................ ............................... 22 Section 504. Use of Moneys in the Bond Fund ................... ............................... 23 Section 505. Custody of the Bond Fund ............................ ............................... 23 Section 506. Nonpresentment of Bonds ............................. ............................... 24 Section 507. Trustee's Fees, Charges and Expenses ............ ............................... 24 Section 508. Moneys to Be Held in Trust .......................... ............................... 24 Section 509. Repayment to the Borrower from the Bond Fund .......................... 24 Section 510. Bond Proceeds Fund; Disbursements ............. ............................... 24 ARTICLE VI PROCEEDS OF BONDS; BOND PROCEEDS FUND .... ............................... 25 Section 601. Deposits in the Bond Proceeds Fund .............. ............................... 25 ARTICLE VII INVESTMENTS ................................................. ............................... 25 Section 701. [Intentionally Omitted] ................................. ............................... 25 Section 702. Investment of Bond Fund Moneys ................. ............................... 25 Section 703. Investments Through Trustee's Bond Department .......................... 25 Section704. Arbitrage .................................................... ............................... 25 ARTICLE VIII SATISFACTION AND DISCHARGE ........................ ............................... 26 Section 801. Satisfaction and Discharge of the Indenture .... ............................... 26 ARTICLE IX DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS................................................ ............................... 26 Section 902. Acceleration ................................................ ............................... 27 Section 903. Remedies; Rights of Bondholders .................. ............................... 27 Section 904. Right of Bondholders to Direct Proceedings ... ............................... 27 Section 905. Application of Moneys ................................. ............................... 27 Section 906. Remedies Vested in Trustee .......................... ............................... 29 Section 907. Rights and Remedies of Bondholders ............. ............................... 29 Section 908. Termination of Proceedings .......................... ............................... 30 Section 909. Waivers of Events of Default ........................ ............................... 30 ARTICLEX THE TRUSTEE .................................................. ............................... 31 Section 1001. Certain Duties and Responsibilities ................ ............................... 31 Section 1002. Notices to Bondholders ................................ ............................... 32 Section 1003. Certain Rights of Trustee ............................. ............................... 32 Section 1004. Not Responsible for Recitals or Issuance of Bonds ......................... 33 Section 1005. May Hold Bonds .......................................... ............................... 33 Section 1006. Money Held in Trust .................................... ............................... 33 Section 1007. Compensation and Reimbursement of the Trustee .......................... 33 Section 1008. Corporate Trustee Required; Eligibility ......... ............................... 34 Section 1009. Resignation and Removal; Appointment of Successor ..................... 34 Section 1010. Acceptance of Appointment .......................... ............................... 35 -ii- Section 10 11. Merger or Consolidation .............................. ............................... 36 Section 1012. Co- trustees and Separate Trustee ................... ............................... 36 Section 1013. Trustee's Discretion ..................................... ............................... 37 ARTICLE XI SUPPLEMENTAL INDENTURES ........................... ............................... 37 Section 1101. Supplemental Indentures ................................. .............................37 ARTICLE XII AMENDMENT OF LOAN AGREEMENT OR NOTE .... ............................... 38 Section 1201. Amendments, etc., to Loan Agreement or Note ............................. 38 ARTICLE XIII MISCELLANEOUS ............................................. ............................... 38 Section 1301. Consents, etc., of Bondholders ...................... .I.............................. 38 Section 1302. Limitation of Rights ....................................... .............................38 Section 1303. Severability ................................................... .............................38 Section1304. Notices ......................................................... .............................39 Section 1305. Trustee as Paying Agent and Registrar ............. .............................39 Section 1306. Payment Due on Sundays and Holidays .......... ............................... 39 Section 1307. Counterparts ................................................. .............................39 Section 1308. Applicable Law ........................................... ............................... 40 SignaturePage ............................................................................ ............................... 41 -iii- INDENTURE OF TRUST THIS INDENTURE OF TRUST, made and entered into as of November 15, 1993, by and between the CITY OF SOUTH BEND, INDIANA, a municipal corporation and political subdivision of the State of Indiana (hereinafter sometimes referred to as the "Issuer"), and NBD BANK, N.A., with its principal office, domicile and post office address located at One Indiana Square, Indianapolis Indiana 46266, as Trustee (hereinafter sometimes referred to as "Trustee"); WITNESSETH: WHEREAS, Indiana Code 36 -7 -12, as amended (the "Act "), authorizes and empowers municipalities of the State of Indiana to issue revenue refunding bonds and to lend the proceeds therefrom to a partnership for the purpose of refunding bonds relating to the financing of economic development facilities and vests such municipalities with powers necessary to enable them to accomplish such purposes; and WHEREAS, pursuant to and in accordance with the provisions of Indiana Code 18- 6 -4.5, as amended (the "Prior Act"), the Issuer issued its Economic Development Revenue Bonds (First Bank Center Project), in an aggregate principal amount of $9,000,000 (the "Prior Bonds ") and lent the proceeds therefrom to FIRST BANK CENTER LIMITED PARTNERSHIP, a limited partnership duly organized and existing under the laws of the State of Minnesota (the "Borrower ") for the purpose of financing the acquisition and construction of certain economic development facilities (the "Project "), to be located in the City of South Bend, as an authorized project under said Prior Act; and WHEREAS, the Prior Bonds were (i) issued under that certain Indenture of Trust dated as of March 15, 1981 (the "Prior Indenture ") between the Issuer and The Indiana National Bank, as trustee (the "Prior Trustee ") for the purposes described therein, (ii) secured by a pledge of the Prior Loan Agreement and Prior Note (as hereinafter defined), and (iii) secured by the Prior Mortgage and Prior Assignment of Lease (as hereinafter defined); and WHEREAS, the Borrower gave notice to the Prior Trustee under Section 301(b) of the Prior Indenture of the Borrower's election to prepay and redeem the Prior Bonds; and WHEREAS, the execution and delivery of this Indenture of Trust (hereinafter sometimes referred to as the "Indenture"), and the issuance of the Bonds (as hereinafter defined) under the Act have been in all respects duly and validly authorized by proceedings duly passed and approved by the governing body of the Issuer; and WHEREAS, the Bonds issued under this Indenture will be secured by a pledge of the Loan Agreement, Note, Mortgage and Assignment of Lease, all as hereinafter defined; and WHEREAS, it has been determined that in order to obtain funds to pay a portion of the redemption price of and amount required to prepay the Prior Bonds pursuant to Section 301(b) of the Prior Indenture, the Issuer will issue its Economic Development Revenue Refunding Bonds (First Bank Center Project), in an aggregate Principal amount not to exceed $8,030,384.77 (hereinafter referred to as the "Bonds"); and WHEREAS, the Bonds and the Trustee's certificate of authentication to be endorsed thereon are to be in substantially the following forms with necessary and appropriate variations, omissions and insertions as permitted or required by this Indenture, to wit: (Form of Fully Registered Bond) UNITED STATES OF AMERICA STATE OF INDIANA COUNTY OF ST. JOSEPH CITY OF SOUTH BEND, INDIANA ECONOMIC DEVELOPMENT REVENUE REFUNDING BOND (FIRST BANK CENTER PROJECT) No. R- KNOW ALL MEN BY THESE PRESENTS that the City of South Bend, Indiana, a municipal corporation and political subdivision of the State of Indiana (hereinafter called the "Issuer"), for value received promises to pay from the source and as hereinafter provided, to or registered assigns as hereinafter provided, the principal sum of Dollars ($ on the following dates and in the following manner: the principal balance of this Bond, together with interest from the date hereof (the "Purchase Date ") at the rate of five and fifty -two one hundredths percent (5.52 %) per annum on such principal amount from time to time remaining unpaid, shall be payable in installments as follows: (i) one installment of interest only (computed on the actual number of days elapsed and on the basis of a 365 -day year), payable on the first day of the month following the Purchase Date; (ii) two hundred nineteen (219) equal installments, each in the amount of $ and each including both principal and interest (computed on the basis of a 360 -day year of twelve 30 -day months), payable on the first day of the second month following the Purchase Date and on the first day of each month until 219 such payments shall have been made; and -2- (iii) a final installment, payable on the first day of the 220th month following the Purchase Date, in the amount of the entire unpaid principal balance of and interest on this Bond. Under the circumstances set forth in Section 210 of the Indenture referred to below relating to taxability for Federal income tax purposes of interest on this Bond, the holder hereof may be entitled to receive additional interest and other payments pursuant to said Section 210, to which reference is hereby made. This Bond shall bear interest on any overdue installment of principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest at a rate per annum determined by adding four percent (4 %) to the interest rate on or with respect to such installment of principal in effect at the payment date of such installment until paid. In the event any installment of principal of or interest on this Bond is not paid when due, a delinquency charge equal to four percent (4 %) of such installment shall be payable, upon demand of the holder hereof, to reimburse the holder hereof for extra expense incurred in the administration of such delinquent payments. Both principal of and interest on this Bond are payable in lawful money of the United States of America immediately available at the principal office of The Indiana National Bank, as Trustee under the Indenture referred to below, or its successor in trust. Each installment of principal and interest, when paid, shall be first applied to the payment of interest accrued to and .including the date fixed for payment on the unpaid principal amount of this Bond, and the balance thereof to payment on account of the principal hereof. This Bond is one of a series of Bonds issued under the hereinafter described Indenture of Trust in an aggregate principal amount not to exceed $8,030,384.77 (hereinafter referred to as the "Bonds ") in order to pay a portion of the redemption price of and amount required to prepay the Issuer's $9,000,000 Economic Development Revenue Bonds (First Bank Center Project) (the "Prior Bonds ") which were issued (a) to increase employment and to promote the diversification of business, commerce and industry in and near the Issuer and to promote the health, prosperity, economic stability and general welfare of the area in and near the Issuer by funding a loan by the Issuer to the Borrower, and (b) for the purpose of financing costs of the acquisition and construction by the Borrower of certain economic development facilities (the "Project ") located in the City of South Bend, Indiana to be operated as a bank office building. This Bond is issued under and secured and entitled to the security of an Indenture of Trust dated as of November 15, 1993 (hereinafter referred to as the "Indenture ") duly executed and delivered by the Issuer to NBD Bank, N.A., in Indianapolis, Indiana as Trustee (the term "Trustee" where used herein referring to said Trustee or its successors in said trust), and also to certain other security described in the Indenture. Reference is made to the Indenture and to all indentures supplemental thereto for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and -3- obligations of the Issuer and the Trustee, and the rights of the holders of the Bonds, to all the provisions of which the holder hereof by the acceptance of this Bond assents. As described in the Indenture as part of the security for the Bonds, this Bond is secured by a Mortgage, Assignment of Rents and Security Agreement dated as of November 15, 1993 (the "Mortgage ") from the Borrower to the Trustee, constituting a valid first lien on and security interest in the Project for the equal and ratable benefit of the holders of the Bonds and of the holder of the promissory note of the Borrower dated on or about November 30, 1993 in the original principal amount of $2,235,000 (the "Taxable Note"). This Bond is created and issued pursuant to and in full compliance with the Constitution and laws of the State of Indiana, particularly Indiana Code 36 -7 -12, as amended, and pursuant to proceedings duly adopted and approved by the Issuer which proceedings authorized the execution and delivery of the Indenture. This Bond to the extent of the advances hereunder and the interest hereon are limited obligations of the Issuer and are payable solely from (i) payments from the Note (the "Note ") delivered by the Borrower to evidence its obligation to repay the loan made by the Issuer to the Borrower for the purpose of financing a portion the redemption price and amount required to prepay the Prior Bonds, and otherwise as provided in a Loan Agreement, dated as of November 15, 1993, by and between the Issuer and the Borrower (the "Loan Agreement"), (ii) proceeds from the Mortgage and any other security given for the Bonds, (iii) amounts and investments from time to time on deposit in the Bond Fund created under the Indenture, and (iv) any other security from time to time given for the Bonds. Pursuant to the Loan Agreement, payments on the Note sufficient for the prompt payment when due of the principal of, premium, if any, and interest on this Bond are to be made by the Borrower to the Trustee for the account of the Issuer and deposited in a special account created by the Issuer and designated "City of South Bend, Indiana, Economic Development Revenue Refunding Bonds (First Bank Center Project) Bond Fund "; such payments have been duly assigned and pledged to the Trustee for that purpose; and under the Indenture the rights of the Issuer under the Loan Agreement and the Note have been assigned and pledged to the Trustee to secure payment of such principal of, premium, if any, and interest on this Bond. The obligations of the Borrower under the Loan Agreement, the Note and the Mortgage are nonrecourse as to any partner of the Borrower. This Bond and the interest thereon do not now and shall never constitute an indebtedness of or a charge against the general credit or taxing power of the Issuer. This 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 in Indianapolis, Indiana, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer a new registered Bond or Bonds without coupons for an aggregate principal amount equal to the unpaid principal amount of the Bond so surrendered will be issued to the transferee in exchange therefor. The Issuer and the Trustee may deem and treat the registered holder hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and premium, if any, thereon and interest due hereon and for all other purposes and me neither the Issuer nor the Trustee nor any paying agent shall be affected by any notice to the contrary. This Bond and the other Bonds outstanding under the Indenture may be declared due prior to their expressed maturity dates, voluntary prepayments may be made thereon by the Borrower on behalf of the Issuer, and the holders thereof may' cause the early prepayment thereof, all in the events, on the terms and in the manner and amounts as provided in the Indenture. No recourse shall be had for the payment of the principal of or premium or interest on this Bond or for any claim based thereon or upon any obligation, covenant or agreement in the Indenture contained, against any past, present or future officer or employee of the Issuer, or any incorporator, officer, director or member of any successor corporation, as such, either directly or through the Issuer or any successor corporation, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such incorporator, officer, director or member as such is hereby expressly waived and released as a condition of and consideration for the execution of the Indenture and the issuance of this Bond. The holder of this Bond shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any event of default under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all Bonds issued under the Indenture and then outstanding may become or may be declared due and payable before the stated maturity thereof, together with interest accrued thereon. Modifications or alterations of the Indenture, or of any supplements thereto, may be made only to the extent and in the circumstances permitted by the Indenture. This Bond is registered on the books of the Issuer and is transferable only by surrender thereof at the principal office of the Trustee duly endorsed or accompanied by a written instrument of transfer duly executed by the registered holder of this Bond or its attorney duly authorized in writing. Payment of or on account of principal, premium, if any, and interest on this Bond shall be made only to or upon the order in writing of the registered holder. IT Is HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by law; that the issuance of this Bond, together with all other obligations of the Issuer, does not exceed or violate any constitutional or statutory limitation. This 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. -5- IN WITNESS WHEREOF, the City of South Bend, Indiana has caused this Bond to be executed in its name by its Mayor by his official manual signature and attested by the official manual signature of its City Clerk, and its corporate seal to be hereunto affixed or printed hereon, all as of , 1993. SEAL. ATTEST: City Clerk CITY OF SOUTH BEND, INDIANA LIM Its: Mayor TRUSTEE'S CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds described in the within - mentioned Indenture of Trust. NBD BANK, N.A., as Trustee UZ Authorized Officer TRUSTEE'S CERTIFICATE OF PAYMENT OF INTEREST Interest on this Bond has been paid to 1, THE INDIANA NATIONAL BANK, as Trustee 0 Authorized Officer WHEREAS, all things necessary to make the Bonds, when authenticated by the Trustee and issued as in this Indenture provided, the valid, binding and legal obligations of the Issuer according to the import thereof, and to constitute this Indenture a valid pledge of the revenues herein made to the payment of the principal of, premium, if any, and interest on in the Bonds, have been done and performed, and the creations execution and delivery of this Indenture, and the creation, execution and issuance of the Bonds, subject to the terms hereof, have in all respects been duly authorized; NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH: That the Issuer in consideration of the premises, the acceptance by the Trustee of the trusts hereby created, the purchase and acceptance of the Bonds by the purchasers thereof, one dollar, lawful money of the United States of America, duly paid to the Issuer by the Trustee at or before the execution and delivery of these presents and of other good and valuable considerations, the receipt of which is hereby acknowledged, and in order to secure the payment of the principal of, premium, if any, interest and any other sums payable on the Bonds outstanding hereunder from time to time, according to their tenor and effect, and to secure the payment of all sums payable under and the observance and performance by the Issuer of all the covenants expressed or implied herein, in the Loan Agreement and in the Mortgage and in the Bonds, does hereby grant, bargain, sell, convey, assign and pledge unto the Trustee (to the extent of its legal capacity to hold the same for the purposes hereof) and unto its successors in trusts and to its assigns forever, all of the Issuer's estate, right, title and interest in, to and under the following (collectively, the "Collateral"): (i) the Note (as hereinafter defined), and (ii) the Loan Agreement (as hereinafter defined), except for the rights of the Issuer under Sections 4.5, 5.2 and 6.3 of the Loan Agreement (relating to indemnification and payment by the Borrower of expenses of the Issuer), and (iii) moneys and investments from time to time on deposit (together with any earnings on the investment thereof) in the Bond Fund (as hereinafter defined), and (iv) the Mortgage (as hereinafter defined), the Assignment of Rents (as hereinafter defined) and the Assignment of Lease (as hereinafter defined) and any and all moneys paid thereunder from time to time (including, without limitation, any rents, insurance proceeds or condemnation proceeds). TO HAVE AND TO HOLD the Note, Loan Agreement, Mortgage and Assignment of Lease hereby pledged, conveyed and assigned, or agreed or intended so to be, unto the Trustee and its respective successors in said trust and its assigns forever; IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and proportionate benefit, security and protection of all present and future holders and owners of the Bonds issued under and secured by this Indenture without privilege, priority or distinction as to the lien or otherwise of any of the Bonds over any of the others of the Bonds, except as expressly provided herein; PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall well and truly pays or cause to be paid, the principal of the Bonds and the interest and premium, if any, -7- due or to become due thereon, at the times and in the manner mentioned in the Bonds according to the true intent and meaning thereof, and shall cause the payments to be made into the Bond Fund as required under Article V hereof or shall provide, as permitted hereby, for the payment thereof by depositing with the Trustee the entire amount due or to become due thereon, and shall well and truly keep, perform and observe all the covenants and conditions pursuant to the terms of this Indenture to be kept, performed and observed by it, and shall pay or cause to be paid to the Trustee all sums of money due or to become due to it in accordance with the terms and provisions hereof, then upon such final payments this Indenture and the rights hereby granted shall cease, determine and be void; otherwise this Indenture to be and remain in full force and effect. THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is expressly declared, that all Bonds issued and secured hereunder are to be issued, authenticated and delivered and all revenues hereby pledged are to be dealt with and disposed of under, upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as hereinafter expressed, and the Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and with the respective holders and owners, from time to time, of the said Bonds or any part thereof, as follows (subject, however, to the provisions of Section 204 hereof): ARTICLE I DEFINITIONS 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 Indiana Code 36 -7 -12, as from time to time amended. "Allstate" means Allstate Insurance Company, Northbrook, Illinois. "Assignment of Lease" means the Assignment of Lease dated as of November 15, 1993, from the Borrower and FBT to the Trustee, assigning to the Trustee the Borrower's interest in and to the FBT Lease. "Authorized Borrower Representative" means either (a) any general partner of the Borrower or (b) the person at the time designated to act in behalf of the Borrower by written certificate furnished to the Issuer and the Trustee containing the specimen signature of such persons and signed on behalf of the Borrower by any general partner of the Borrower. "Banks" means NBD and The Indiana National Bank, a national banking association (in its individual corporate capacity and not as a trustee under the Prior Indenture). 11:11 "Bond" or "Bonds" means one or more of the Economic Development Revenue Refunding Bonds (First Bank Center Project) of the Issuer to be issued hereunder in an aggregate principal amount not to exceed $8,030,384.77. "Bond Fund" means the fund created in Section 502 hereof. "Bond Purchase Agreement" means the Bond Purchase Agreement dated as of November 15, 1993, among the Issuer, the Borrower and the Purchaser (an executed counterpart of which has been delivered to the Trustee). "Bondholder" or "holder" or "owner of the Bonds" means the registered owner of any fully registered Bond. "Borrower" means First Bank Center Limited Partnership, a limited partnership organized under the laws of the State of Minnesota, and any successor Person thereto permitted by the Loan Agreement. "Business Day" ,means any day other than a Saturday, Sunday or other day on which banks in Chicago, Illinois, or Indianapolis, Indiana are required by law to close. "Code" means the Internal Revenue Code of 1954, as amended and supplemented. "Default" means an event or condition the occurrence of which would, with the lapse of time or the giving of notice or both, become an Event of Default. "Escrow Agreement" means the Escrow Agreement dated as of November 15, 1993 among the Trustee, the Prior Trustee and the Issuer. "Event of Default" means those events specified in and defined by Section 901 hereof. "Extraordinary Services" and "Extraordinary Expenses" mean all services rendered and all expenses incurred under the Indenture other than Ordinary Services and Ordinary Expenses. "FBT" means FBT Bancorp, Inc., an Indiana corporation, and its successors and assigns under the FBT Lease. "FBT Lease" means that certain Operating Lease dated as of April 15, 1981 between Borrower, as lessor, and FBT, as lessee, as the same may from time to time be supplemented or amended. "Hereof', "herein ", "hereunder" and other words of similar import refer to this Indenture as a whole. "Indenture" means these presents as supplemented by any supplemental agreements executed by the Issuer and the Trustee permitted hereby. ST "Independent Counsel" means an attorney duly admitted to practice law before the highest court of any state and not regularly employed on a substantial basis by the Issuer or the Borrower and acceptable to the Trustee. "Institutional Holder" means (i) the Banks, (ii) the Purchasers, and (iii) any other bank, trust company, insurance company, pension fund or similar financial institution holding at the time fully registered Bonds equal in aggregate principal amount to at least 10% in aggregate principal amount of Bonds then outstanding. "Issuer" means City of South Bend, Indiana, a municipal corporation and political subdivision of the State of Indiana, and its successors and assigns. "Loan Agreement" means the Loan Agreement dated as of November 15, 1993 executed by and between the Issuer and the Borrower and any amendments and supplements thereto. "Make -Whole Amount" shall mean in connection with any prepayment or acceleration of the Bonds or the Taxable Note as the case may be the excess, if any, of (a) the aggregate present values as of the date of such prepayment of each dollar of principal being prepaid (taking into account the application of such prepayment required in accordance with the maturities stated on the face of the Bond, if any, or the Taxable Note as the case may be) and the amount of interest (exclusive of interest accrued to the date of prepayment) that would have been payable in respect of such dollar if such prepayment had not been made, determined by discounting such amounts at the Reinvestment Rate from the respective dates on which they would have been payable, over (b) 100% of the principal amount of the Bonds or the Taxable Note as the case may be being prepaid at the date such Bonds or the Taxable Note as the case may be are to be prepaid. If the applicable Reinvestment Rate at the time of determination of the Make -Whole Amount is equal to or higher than (1) with respect to the Bonds, 5.52 %, or (2) with respect to the Taxable Note, 6.90 %, then the Make -Whole Amount for any payment or prepayment of the Bonds or the Taxable Note as the case may be is zero. For purposes of any determination of the Make -Whole Amount: "Reinvestment Rate" shall mean the yield reported, as of 10:00 a.m. (New York, New York time) on the Business Day next preceding the date of prepayment or payment of the Bonds on the display designated as "Page 500" on the Telerate Service (or such other display as may replace "Page 500" on the Telerate Service) for actively traded U.S. Treasury Securities having a maturity corresponding to the series of Bonds or the Taxable Note as the case may be then being prepaid or paid as of the date of prepayment or payment or if such yield shall not be reported as of such time or if the yields reported as of such time are not ascertainable in accordance with the preceding clause, then the arithmetic mean of the yields under the respective headings "This Week" and "Last Week" published in the Statistical Release under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the Weighted Average Life to Maturity of the principal being prepaid (taking into account the application of such prepayment required in accordance with the maturities stated on the face of the Bonds, if any). If no maturity K12 exactly corresponds to such Weighted Average Life to Maturity, yields for the two published maturities most closely corresponding to such Weighted Average Life to Maturity shall be calculated pursuant to the Telerate Service or the Statistical Release, as the case may be, and the Reinvestment Rate shall be interpolated from such yields on a straight -line basis, rounding in each of such relevant periods to the nearest month. For the purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make -Whole Amount shall be used if required by the first sentence. of the definition of Reinvestment Rate. "Statistical Release shall mean the then most recently published statistical release designated "H.15(519)" any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded U.S. Government Securities adjusted to constant maturities or, if such statistical release is not published at the time of any determination hereunder, then such other reasonably comparable index which shall be designated by the holders of 66 -2/3% in aggregate principal amount of the outstanding Bonds. "Weighted Average Life to Maturity" of the principal amount of the Bonds or, as the case may be, the Taxable Note being prepaid shall mean, as of the time of any determination thereof, the number of years obtained by dividing the then Remaining Dollar -Years of such principal by the aggregate amount of such principal. The term "Remaining Dollar - Years" of such principal shall mean the amount obtained by (1) multiplying (i) the remainder of (A) the amount of principal that would have become due on each scheduled payment date if such prepayment had not been made, less (B) the amount of principal on the Bonds scheduled to become due on such date after giving effect to such prepayment and the application thereof in accordance with the maturities stated on the face of the Bonds or, as the case may be, the Taxable Note, if any, by (ii) the number of years (calculated to the nearest one - twelfth) which will elapse between the date of determination and such scheduled payment date, and (2) totalling the products obtained in (1). "Mortgage" means the Mortgage, Assignment of Rents and Security Agreement dated as of November 15, 1993 from the Borrower to the Trustee, constituting a first lien on and security interest in the Project, for the equal and ratable benefit of the holders of the Bonds and the holder of the Taxable Note. "NBD" means National Bank of Detroit, a national banking association. "Note" means the Note referred to in Section 4.2 of the Loan Agreement and pledged hereunder, in the principal amount of $8,030,384.77, to be executed and delivered by the Borrower to the Issuer concurrently with the sale and delivery by the Issuer of the Bonds. "Ordinary Services" and "Ordinary Expenses" mean those services normally rendered and those expenses normally incurred by a trustee under instruments similar to this Indenture. -11- "Outstanding" or "Bonds outstanding" means all Bonds which have been duly authenticated and delivered by the Trustee under this Indenture, except Bonds in lieu of which others have been authenticated under Section 208. If this Indenture shall have been discharged pursuant to Article VIII hereof, no Bonds shall be deemed to be outstanding within the meaning of this provision. "Person" means any individual, firm association, trust, partnership, corporation or public body. "Prior Act" means Indiana Code 18- 6 -4.5, as from time to time amended. "Prior Assignment of Lease" means the Assignment of Lease dated as of March 15, 1981, from the Borrower and FBT to me Prior Trustee, assigning to the Prior Trustee the Borrower's interest in and to the FBT Lease dated as of March 15, 1981 between the Borrower, as lessors and FBT, as lessee. "Prior Bond Purchase Agreement" means the Bond Purchase Agreement dated as of March 15, 1981, among the Issuer, the Borrower, the Banks and the Prior Purchasers. "Prior Construction Loan Agreement" means the Construction Loan Agreement dated as of March 15, 1981 among the Borrower, the Prior Trustee and the Bank. "Prior Loan Agreement" means the Loan Agreement dated as of March 15, 1981 executed by and between the Issuer and the Borrower and any amendments and supplements thereto. "Prior Mortgage" means the Mortgage, Assignment of Rents and Security Agreement dated as of March 15, 1981 from the Borrower to the Prior Trustee, constituting a first lien on and security interest in the Project, for the equal and ratable benefit of the holders of the Prior Bonds and the holder of the Prior Taxable Note. "Prior Note" means the Note referred to in Section 4.2 of the Prior Loan Agreement and pledged under the Prior Indenture, in the principal amount of $9,000,000, to be executed and delivered by the Borrower to the Issuer concurrently with the sale and delivery by the Issuer of the Prior Bonds. "Project" means the Real Estate and the economic development facilities located thereon, described in Exhibit A to the Loan Agreement as it may from time to time be amended and supplemented. "Purchase Date" means the date on which the Bonds shall be purchased by the Purchaser pursuant to the Bond Purchase Agreement. "Purchaser" means Allstate Insurance Company, Northbrook, Illinois. spa "Purchasers" means The Aetna Casualty and Surety Company, Hartford, Connecticut and Nationwide Mutual Insurance Company, Columbus, Ohio. "Qualified Investments" means (i) bonds, notes or other direct obligations of the United States of America, (ii) obligations fully guaranteed as to interest and principal by the United States of America, (iii) certificates of deposit maturing within one year from the date of acquisition issued by the Trustee or by a bank or trust company organized under the laws of the United States or any State thereof, having capital, surplus and undivided profits aggregating at least $100,000,000, (iv) commercial paper given the highest rating by Moody's Investors Services Inc., or Standard & Poor's Corporation, and (v) repurchase agreements secured by any of the investments described in clauses (i) through (iv) above. "Real Estate" means the real property described in Exhibit A to the Loan Agreement as it may from time to time be amended and supplemented. "Revenues" means all amounts from all sources received by the Trustee under the provisions hereof. "Taxable Note" means the promissory note of the Borrower, in the original principal amount of $2,235,000, dated on or about November 30, 1993, payable to the order of Allstate or its nominee, if any, and any amendment or supplement thereto, any extension thereof, and any substitution therefor or refinancing thereof. "Trustee" means NBD Bank, N.A., as Trustee hereunder, and any successor trustee pursuant to Section 1005 or 1008 at the time serving as successor trustee hereunder. ARTICLE II THE BONDS Section 201. Authorized Amount of Bonds. No Bonds may be issued under the provisions of this Indenture except in accordance with this Article. The total principal amount of Bonds that may be issued is $8,030,384.77. Section 202. Issuance of Bonds. The Bonds shall be designated "City of South Bend, Indiana, Economic Development Revenue Refunding Bonds (First Bank Center Project) ". The Bonds shall bear interest from their respective dates and shall be issuable as fully registered Bonds without coupons in any denomination. Unless the Issuer shall otherwise direct the Bonds shall be lettered and numbered R -1 and upward. Each Bond shall be dated as of the Purchase Date, regardless of when issued and authenticated. If a Bond is issued and authenticated after the first interest payment date following the Purchase Date, the Trustee shall certify on the Bond the date to which interest has been paid next preceding the date on which it is authenticated. -13- The Bonds shall be payable on the following dates and in the following manner: the principal balance of the Bonds, together with interest thereon from the Purchase Date at the rate of five and fifty -two one hundredths percent (5.52 %) per annum, shall be payable in installments as follows: (i) installments of interest only (computed on the actual number of days elapsed and on the basis of a 365 -day year), payable on the first day of the month following the Purchase Date; (ii) two hundred nineteen equal installments, each in the amount of [ ]% of the principal amount thereof and each including principal and interest (computed on the basis of a 360 -day year of twelve 30 -day months), payable on the first day of the second month following the Purchase Date and on the first day of each month thereafter until 219 such payments shall have been made; and (iii) a final installment, payable on the first day of the 220th month following the Purchase Date, in the amount of the entire unpaid principal balance of and interest on the Bonds; and provided, however, that under the circumstances set forth in Section 210 hereof relating to taxability for Federal income tax purposes of interest on the Bonds, the holders of the Bonds may be entitled to receive additional interest and other payments pursuant to said Section 210. The Bonds shall bear interest on any overdue installment of principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest at a rate per annum determined by adding four percent (4 %) to the interest rate on or with respect to such installment of principal in effect at the payment date of such installment. In the event any installment of principal of or interest on the Bonds is not paid when due, a delinquency charge equal to four percent (4 %) of such installment shall be payable, upon demand of any holder thereof, to reimburse such holder for extra expense incurred in the administration of such delinquent payments. Each combined installment of principal and interest, when paid, shall be first applied to the payment of interest accrued to and including the date fixed for payment on the unpaid principal amount of the Bonds, and the balance thereof to payment on account of the principal of the Bonds. Section 203. Place of Payment. The principal of, premium, if any, and interest on the Bonds shall be payable in any coin or currency of the United States of America which, at the respective dates of payment thereof, is legal tender for the payment of public and private debts, and such principals premium, if any, and interest shall be payable at the principal office of the Trustee, in the City of Indianapolis, Indiana. Subject to the provisions of the -14- following paragraph of this Section, Payment (as defined below) on any fully registered Bond on any interest payment date shall be made to the person appearing on the Bond registration books of the Issuer as the registered owner thereof and shall be paid by check or draft mailed to the registered owner at his address as it appears on such registration books or at such other address as is furnished the Trustee in writing by such holder. So long as any Bond is registered in the name of any Institutional Holder or a nominee thereof, the Trustee will, upon written request from such purchaser or its nominee given not less than 10 days prior to the payment or prepayment of the Bonds, thereafter cause all subsequent Payments (as defined below) on the Bonds registered in the name of such purchaser or its nominee to be made to such purchaser or its nominee at such address in the continental United States as shall be specified by such purchaser or nominee in such written request; such Payments shall be by bank wire transfer (or as otherwise directed) in immediately available Federal Reserve funds, on each such date such Payment is due, provided that the party to receive such Payment has facilities for the receipt of a wire transfer. The Trustee will transmit any such wire transfer from its offices not later than 11:00 A.M., Indianapolis, Indiana time, on each such Payment date as due, unless immediately available funds for such purpose have not then been made available to the Trustee for such purpose by the Borrower under Section 4.1 of the Loan Agreement, in which case such wire transfer shall be transmitted by the Trustee as soon as such funds are available to it. The Trustee shall keep a record of all such payments. Payments of principal and premium, if any, made in respect of any registered Bond shall be made to or upon the order of the registered owner or his legal representative. As used in this Section the term "Payment" shall mean all payments or prepayments of principal, premium, if any, and interest on any Bond and all payments payable in respect of such Bond pursuant to Section 8.3 of the Loan Agreement. Section 204. Execution; Limited Obligation. The Bonds shall be executed on behalf of the Issuer with the official manual signature of its Mayor and attested with the official manual signature of its City Clerk, and shall have impressed or printed thereon the corporate seal of the Issuer or a facsimile of the corporate seal of the Issuer. The Bonds, together with interest thereon, shall be limited obligations of the Issuer payable solely from the Revenues (except to the extent paid out of moneys attributable to the Bond proceeds or the income from the temporary investment thereof) and shall be a valid claim of the respective holders thereof only against the Bond Fund and the Revenues pledged to such Fund and other moneys held by the Trustee and also against certain other security described herein. The Bonds and the interest thereon do not now and shall never constitute an indebtedness or a loan of credit of the Issuer, the State of Indiana or any political subdivision thereof, or a charge against their general taxing powers within the meaning of any constitutional or statutory provision of the State of Indiana. In case any officer whose signature shall appear on the Bonds shall cease to be such officer before the delivery of such Bonds, such signature shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery. SNI Section 205. Authentication. No Bond shall be valid or obligatory for any purpose or entitled to any security or benefit under this Indenture unless and until a certificate of authentication on such Bond substantially in the form hereinabove set forth shall have been duly executed by the Trustees 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 or signatory 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 206. Form of Bonds. The Bonds issued under this Indenture shall be substantially in the form hereinabove set forth with such appropriate variations, omissions and insertions as are permitted or required by this Indenture. Section 207. Delivery of Bonds; Payment of Purchase Price of Bonds. Upon the execution and delivery of this Indenture, the Issuer shall execute and deliver to the Trustee and the Trustee shall authenticate the Bonds to be issued up to the aggregate principal amount of $8,030,384.77 and deliver them to or upon the direction of the Issuer as hereinafter in this Section 207 provided. Prior to the delivery by the Trustee of any of the Bonds there shall be filed with the Trustee: 1. A copy, duly certified by the City Clerk of the Issuer, of the ordinance adopted by the Common Council of the Issuer and approved by the Mayor of the Issuer authorizing the execution and delivery of the Loan Agreement, the Bond Purchase Agreement and this Indenture and the issuance of the Bonds. 2. A copy of each of the documents, certificates and opinions required to be delivered as a condition to the Purchaser's obligations to purchase the Bonds under the Bond Purchase Agreement. 3. A request and authorization to the Trustee on behalf of the Issuer and signed by the Mayor and the City Clerk of the Issuer to authenticate and deliver the Bonds in the aggregate principal amount of $8,030,384.77 to the purchasers therein identified. [The proceeds of such Bonds shall be paid over to the Trustee and deposited to the credit of the Bond Fund as provided in Article VI hereof.] 4. The acknowledgement by the Purchaser that all of the conditions precedent to the purchase by the Purchaser of the Bonds, contained in the Bond Purchase Agreement, have been complied with to the satisfaction of the Purchaser. The purchase by the Purchaser of the Bonds shall constitute such an acknowledgement. Pursuant to the Bond Purchase Agreement, the Purchaser will purchase the Bonds and will pay the purchase price therefor to the Trustee for the account of the Issuer for deposit into the Bond Proceeds Fund maintained by the Trustee pursuant to Section 602 hereof. -16- Section 208. 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 Issuer and the Trustee evidence of such loss, theft or destruction satisfactory to the Issuer and the Trustee, together with indemnity satisfactory to them; if the owner of such Bond is an Institutional Holder, then an indemnity agreement of such owner shall be sufficient and satisfactory indemnity for this purpose. In the event any such Bond shall have matured, instead of issuing a duplicate Bond the Issuer may pay the same without surrender thereof. The Issuer and the Trustee may charge the owner of such Bond with their reasonable fees and expenses in this connection. Section 209. 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 Bond Registrar of the Issuer. Upon surrender for transfer of any Bond at the principal office of the Trustee, duly endorsed by, or accompanied by a written instrument or instruments of transfer in a form satisfactory to the Trustee and duly executed by the registered owner or his attorney duly authorized in writing, and containing a notation of the principal and interest which has been paid thereon, 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 an aggregate principal amount equal to the unpaid principal amount of the Note so surrendered. Bonds may be exchanged at said office of the Trustee for a like aggregate principal amount of fully registered Bonds of other authorized denominations of the same maturity. The execution by the Issuer of any fully registered Bond 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 Trustee shall not be required to transfer or exchange any Bond during the period of five (5) days next preceding any interest payment date of such Bond, nor to transfer or exchange any Bond after the publication of notice has been made calling such Bond for prepayment, nor during a period of five (5) days next preceding publication of a notice of prepayment of any Bonds. The Person in whose name any fully registered Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of either principal or interest on any such Bond 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. -17- In the case of Bonds issued upon exchange or transfer, the Trustee shall require that the bondholder requesting exchange or transfer pay any tax or other governmental charge required to be paid with respect to such exchange or transfer. Section 210. Taxability. The Issuer acknowledges that it is intended that interest on the Bonds will not be wholly excludable from the taxable investment income or the gross income of any holder thereof (other than by reason of any such holder being a substantial user or related person as defined in Section 103(b)(9) of the Code) for Federal income tax purposes, and the stated interest rate of the Bonds reflects such exemption. Accordingly, in the event of a Determination of Taxability (as defined in the Loan Agreement): (a) The interest rate on the Bonds shall be increased to 6.90% per annum, effective as of the date from which interest on the Bonds first became not wholly excludable. On the first day of the first month following the Determination of Taxability, in addition to the regular monthly payment, a payment shall be made for all past additional interest at such higher rate due from the date that interest on the Bonds first became taxable to the first day of the first month following the Determination of Taxability. If, on the first day of the second month following the Determination of Taxability, any monthly payments under the Bonds consist of principal and interest, the amount of such monthly payments shall be recomputed by determining the monthly payment necessary to fully amortize the then outstanding principal sum over the then remaining term of the Bonds, at the higher rate of interest of 6.90% per annum (provided, however, that this provision is not intended to authorize the extension of the final maturity on the Bonds). The provisions of this paragraph shall be self- executing without the need for any modification or amendment of the Bonds; and, (b) At their sole option, and as provided in Section 301(b) hereof, the holders of one -half in aggregate principal amount outstanding of the Bonds may declare the entire principal amount and interest thereof due and payable, effective not less than 10 days following written notice of the exercise of said option by such holders. All amounts received by the Trustee pursuant to this Section 210 shall be allocated and paid to the holders and the prior holders of the Bond in relation to the periods for which such Bonds were held and the increased interest rates payable with respect to such periods. The provisions of this Section 210 shall survive payment in full of the Bonds and release and termination of this Indenture. ARTICLE III PREPAYMENT OF BONDS BEFORE MATURITY Section 301. Prepayment. (a) The Bonds are subject to prepayment in whole or in part (pro rata as provided in Section 304 hereof) at the option of the Trustee from moneys deposited with the Trustee in the Bond Fund pursuant to the terms of the Mortgage. If -18- called for prepayment as a result of such event, the Bonds shall be subject to prepayment by the Issuer in whole at a prepayment price of 100% of the principal amount thereof plus accrued interest to the prepayment date. The Bonds shall not, however, be subject to prepayment under this Subsection 301(a), if and so long as the Taxable Note is outstanding, unless any such prepayment shall be accompanied by a proportional prepayment of the Taxable Note. (b) The Bonds are subject to prepayment at the option of the Borrower on behalf of the Issuer prior to maturity on any installment payment date on or after May 1, 1997, in whole or in part (pro rata as provided in Section 304 hereof) in integral multiples of $1,000, by payment of the principal amount of the Bonds, or portion thereof to be prepaid, and accrued interest thereon to the prepayment date together with a premium equal to the Make -Whole Amount, determined as of two Business Days prior to the date of such prepayment pursuant to this Subsection 301(b). The provisions of this Section 301(b) shall not be deemed to require the payment of any penalty or premium upon the maturity of the Bonds in accordance with the maturities stated on the face thereof. The Bonds shall not, however, be subject to prepayment under this Subsection 301(b), if and so long as the Taxable Note is outstanding, unless any such prepayment shall be accompanied by a proportional prepayment of the Taxable Note. (c) The Bonds are also subject to prepayment, in whole, at the option of the holders of two - thirds in aggregate principal amount of the Bonds at the time outstanding, at any time after the occurrence of a Determination of Taxability (as defined in Section 8.1 of the Loan Agreement) at a prepayment price of 100% of the principal amount thereof plus accrued interest to the prepayment date. Any such option must be exercised by such holders by notice to the Borrower, the Issuer and the Trustee at least 10 days prior to the prepayment date. Section 302. Notice of Prepayment. Except as to a prepayment under Section 301(c), notice of the call for any prepayment of Bonds pursuant to Section 301 hereof, identifying the Bonds or portions thereof to be prepaid, shall be given by mailing a copy of the prepayment notice by registered or certified mail not less than sixty (60) nor more than ninety (90) days prior to the date fixed for prepayment to the registered owner of each Bond to be prepaid at the address shown on the Bond registration books of the Trustee. Prior to the date that the prepayment notice is first mailed as aforesaid funds shall be placed with the Trustee to pay such Bonds and accrued interest thereon to the prepayment date and the premium, if any. The Bonds, or portions thereof, to be prepaid, upon the happening of the above conditions, shall no longer be protected by this Indenture and shall not be deemed to be outstanding under the provisions of this Indenture. The Trustee shall prepay, in the manner provided in this Section 302, and only on the circumstances contemplated by Section 301, such an aggregate principal amount of such Bonds at the principal amount thereof plus the applicable premium, if any, and accrued interest to the prepayment date as will exhaust as nearly as practicable such funds. Such prepayment shall be made in the manner provided In Section 304 hereof. -19- Section 303. Cancellation. All Bonds which have been prepaid shall be cancelled and cremated or otherwise destroyed by the Trustee and shall not be reissued and a counterpart of the certificate of cremation or other destruction evidencing such cremation or other destruction shall be furnished by the Trustee to the Issuer and the Borrowers provided, however, that one or more new fully registered Bonds shall be issued for the unprepaid portion of any fully registered Bond without charge to the holder thereof. Section 304. Partial Payment or Prepayment of Bonds. (a) Upon surrender of any Bond for payment or prepayment in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to the holder thereof, at the expense of the Issuer, a new fully registered Bond or Bonds of authorized denominations in aggregate principal amount equal to the unprepaid portion of the bond surrendered. (b) Any holder of any fully registered Bond shall, if it does not elect to surrender the same for a new Bond, endorse on such Bond before any sale or other transfer thereof, a notice of such partial prepayment on the following form which shall be typed or printed on the reverse side of such Bond: PREPAYMENTS ON ACCOUNT OF PRINCIPAL PRINCIPAL BALANCE OF PREPAYMENT AMOUNT PRINCIPAL DATE PREPAID AMOUNT UNPAID SIGNATURE Such partial prepayment shall be valid upon payment of the amount thereof to the registered owner of any such fully registered Bond and the Issuer and the Trustee shall be fully released and discharged from all liability to the extent of such payment irrespective of whether such endorsement shall or shall not have been made upon the reverse of such fully registered Bond by the owner thereof and irrespective of any error or omission in such endorsement. (c) The aggregate principal amount of any partial prepayment of the Bonds shall be allocated pro rata among the holders of the Bonds at the time outstanding. (d) Any partial prepayment of the Bonds shall be applied in inverse order of the maturities of the installments thereon, and there shall be no reduction in the monthly installments thereon. -20- ARTICLE IV GENERAL COVENANTS Section 401. Payment of Principal and Interest. The Issuer covenants that it will promptly pay the principal of, premium, if any, 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, interest and premium, if any, are payable solely from the Revenues, which Revenues are hereby specifically pledged to the payment thereof in the manner and to the extent herein specified, and nothing in the Bonds or in this Indenture should be considered as pledging any other funds or assets of the Issuer other than those assigned and pledged hereby. Neither the Issuer nor the State of Indiana nor any political subdivision thereof shall in any event be liable for the payment of the principal of, premium, if any, or interest on any of the Bonds or for the performance of any pledge, obligation or agreement undertaken by the Issuer. Section 402. Performance of Covenants; Issuer. 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 pertaining thereto. The Issuer covenants that it is duly authorized under the Constitution and laws of the State of Indiana, including particularly and without limitation the Act, to issue the Bonds authorized hereby and to execute this Indenture, to enter into and perform its obligations under the Loan Agreement and to pledge the Revenues herein described and hereby pledged 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 thereof are and will be valid and enforceable obligations of the Issuer according to the import thereof. Section 403. Enforcement of Loan Agreement and Note. The Issuer hereby authorizes the Trustee to enforce the payment of all amounts payable under the Loan Agreement and the Note and to require the Borrower to perform its obligations thereunder, whether or not the Issuer is in default hereunder. Section 404. Filing of Financing Statements. The Issuer shall cause financing statements and all supplements thereto and other instruments as may be required from time to time to be kept filed in such manner and in such places as may be required by law in order fully to preserve and protect the security of the owners of the Bonds and the rights of the Trustee hereunder and to perfect the lien of, and the security interest created by, the Indenture. The Trustee shall be responsible for enforcing the provisions of this Section 404. Section 405. Inspection of Project Books. The Issuer covenants and agrees that all books and documents in its possession relating to the Project and the Revenues shall at all times be open to inspection by such accountants or other agents as the Trustee may from time to time designate. -21- Section 406. List of Bondholders. The Issuer will keep on file at the principal office of the Trustee a list of names and addresses of the registered owners of all Bonds. At reasonable times and under reasonable regulations established by the Trustee, said list may be inspected and copied by the Borrower or by owners (or a designated representative thereof) of ten percent 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 407. Rights under Loan Agreement. The Loan Agreement, a duly executed counterpart of which has been filed with the Trustee, sets forth the covenants and obligations of the Issuer and the Borrower, including provisions that subsequent to the initial issuance of Bonds and prior to their payment in full or provision for payment thereof in accordance with the provisions hereof, the Loan Agreement and the Note may not be effectively amended, changed, modified, altered or terminated (other than as provided therein) without the concurring written consent of the Trustee and, in certain cases, the Bondholders as provided in Sections 1202 and 1203 hereof, and reference is hereby made to the Loan Agreement and the Note for a detailed statement of said covenants and obligations of the Borrower under the Loan Agreement and the Note, and the Issuer agrees that the Trustee in its name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Borrower under and pursuant to the Loan Agreement and the Note for and on behalf of the Bondholders, whether or not the Issuer is in default hereunder. ARTICLE V BOND FUND Section 501. Source of Payment of Bonds. The Bonds herein authorized and all payments by the Issuer hereunder are not general obligations of the Issuer but are limited obligations payable solely from the Revenues and as authorized by the Act and provided herein. The Bonds are secured as provided herein. Section 502. Creation of the Bond Fund; Restoration Fund. There is hereby created by the Issuer and ordered established with the Trustee a trust fund to be designated "City of South Bend, Indiana, Economic Development Revenue Refunding Bonds (First Bank Center Project) Bond Fund" which shall be used to pay the principal of, premium, if any, and interest on the Bonds and the Taxable Note on a pari passu basis. There is also hereby created by the Issuer and ordered established with the Trustee a trust fund, to be a subaccount of the Bond Fund, designated the "Restoration Fund" which may be used to either (i) prepay the principal of, premium, if any, and interest on Bonds and the Taxable Note on a pari passu basis or (ii) pay for restoration of the premises (as defined in the Mortgage) in accordance with the terms of Sections 1.05 and 1.14 of the Mortgage. Section 503. Payments into the Bond Fund. There shall be deposited into the Bond Fund, as and when received: -22- (a) all Payments of principal, interest and premium, if any, payable in respect of the Note; (b) all moneys deposited pursuant to Section 905 hereof (relating to moneys received by the Trustee as a result of the exercise of remedies hereunder); (c) all amounts received by the Trustee pursuant to the Mortgage except that all funds received by Trustee under Sections 1.05 and 1.14 of the Mortgage and which the Trustee has elected to apply to restoration of the premises shall be deposited in the Restoration Fund; (d) all amounts received by the Trustee pursuant to the Assignment of Lease; and (e) all other moneys received by the Trustee under and pursuant to any of the provisions of the Loan Agreement or any other document when accompanied by directions that such moneys are to be paid into the Bond Fund. Section 504. Use of Moneys in the Bond Fund. Except as provided in Section 509 hereof, and except for moneys received by the Trustee pursuant to the Mortgage and the Assignment of Lease, moneys in the Bond Fund shall be used solely for the payment of the principal of, premium, if any, and interest on the Bonds and for the prepayment of the Bonds prior to maturity. Any moneys in the Bond Fund which are in excess of (i) moneys, if any, received by the Trustee as insurance or condemnation proceeds, and (ii) principal of, premium, if any, and interest on the Bond due within thirty (30) days (or a longer period if the Bond has been set for prepayment), shall be paid to the Borrower. Any and all moneys received by the Trustee pursuant to the Mortgage (except for moneys received as insurance or condemnation proceeds or as tax or insurance escrows, which moneys shall be held and applied as provided in the Mortgage) and held in the Bond Fund shall be used solely for the payment of the principal of, premium, if any, and interest on the Bonds and the Taxable Note, and shall be applied in accordance with the provisions of Section 905 hereof. Any and all moneys received by the Trustee pursuant to the Assignment of Lease and held in the Bond Fund prior to the occurrence of an Event of Default hereunder shall be held and applied as provided in the Assignment of Lease. From and after the occurrence of an Event of Default hereunder, all such moneys shall be applied in accordance with the provisions of Section 905 hereof. Section 505. Custody of the Bond Fund. The Bond Fund shall be in the custody of the Trustee but in the name of the Issuer and the Issuer hereby authorizes and directs the Trustee to withdraw sufficient funds from the Bond Fund to pay the principal of, premium, if any, and interest on the Bonds as the same become due and payable and to make said funds so withdrawn available to the Trustee for the purpose of paying said principal, premium and interest, which authorization and direction the Trustee hereby accepts. -23- Section 506. Nonpresentment of Bonds. In the event any Bond held by a holder which is not an Institutional Holder shall not be presented for payment when the principal thereof becomes due, either at maturity or otherwise, or at the date fixed for prepayment thereof, if funds sufficient to pay such Bonds shall have been made available to the 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, 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, said Bond. Section 507. Trustee's Fees, Charges and Expenses. Pursuant to the provisions of the Loan Agreement the Borrower has agreed to pay to the Trustee: (i) an amount equal to the annual fee of the Trustee for the Ordinary Services of the Trustee rendered as Trustee, and its Ordinary Expenses incurred under this Indenture, as and when the same become due, (ii) the reasonable fees, charges and expenses of the Trustee, as Bond Registrar and paying agent, as and when the same become due, and (iii) the reasonable fees, charges and expenses of the Trustee for the necessary Extraordinary Services and Extraordinary Expenses of the Trustee under this Indenture, as and when the same become due. Section 508. Moneys to Be Held in Trust. All moneys required to be deposited with or paid to the Trustee for account of the Bond Fund under any provision of this Indenture shall be held by the Trustee in trust, and except for moneys deposited with or paid to the Trustee for the prepayment of Bonds, notice of the prepayment of which has been duly given, shall, while held by the Trustee, constitute part of the trust estate and be subject to the lien hereof. Section 509. Repayment to the Borrower from the Bond Fund. Any amounts remaining in the Bond Fund, after (i) payment in full of the principal of, premium, if any, and interest on the Bonds and the Taxable Note, and (ii) payment in full of all of the liabilities of the Issuer hereunder and of the liabilities of the Borrower under the Note, the Taxable Note, the Loan Agreement and the Mortgage and any other agreement or document executed by the Borrower in connection therewith, shall be paid to the Borrower. Section 510. Bond Proceeds Fund; Disbursements. There is hereby created and established with the Trustee a trust fund in the name of the Issuer to be designated "City of South Bend, Indiana, Economic Development Revenue Refunding Bonds (First Bank Center Project) Bond Proceeds Fund ". Moneys in the Bond Proceeds Fund shall be expended in accordance with the provisions of the Escrow Agreement. The Trustee is hereby authorized and directed to issue its checks for each disbursement required by the aforesaid Escrow Agreement. -24- ARTICLE VI PROCEEDS OF BONDS; BOND PROCEEDS FUND Section 601. Deposits in the Bond Proceeds Fund. The Bond Proceeds Fund shall be a temporary closing account for the purposes stated in this Section. The proceeds from the sale of the Bonds shall be received by the Trustee and deposited to the credit of the Bond Proceeds Fund concurrently with the initial delivery of the Bonds. The funds thus received by the Trustee shall be disbursed, paid and transferred pursuant to instructions of the Escrow Agreement. ARTICLE VII INVESTMENTS Section 701. [Intentionally Omitted]. Section 702. Investment of Bond Fund Moneys. Any moneys held as part of the Bond Fund shall, at the written request of the Authorized Partnership Representative, be invested or reinvested by the Trustee. The said written request shall specify the issuer or obligor, the principal amount, maturity date and interest rate of such investment. Any such investments shall be held by or under control of the Trustee and shall be deemed at all times a part of the Bond Fund and the interest accruing thereon and any profit realized therefrom shall be credited to such fund and any loss resulting from such investments shall be charged to such fund. The Trustee shall sell and reduce to cash funds a sufficient portion of investments under the provisions of this Section 702 whenever the cash balance in the Bond Fund is insufficient to pay the principal of, premium, if any, and interest on the Bonds as and when payable. Section 703. Investments Through Trustee's Bond Department. The Trustee may make any and all investments permitted by the provisions of Sections 701 and 702 through its own bond department. Section 704. Arbitrage. With respect to the authority to invest granted in Article VII of this Indenture, the Trustee covenants that at any time that it has discretion as to such investments it will not use or invest the proceeds of the Bonds in any manner which will cause the Bonds to become arbitrage bonds within the meaning of Section 103(c) of the Code. With respect to Section 103(c) of the Code, the Borrower has made certain covenants to the Issuer in Section 3.6 of the Loan Agreement, which covenants by this reference are incorporated herein and made a part hereof, and the Issuer hereby covenants with the holders of the Bonds that so long as any principal installment of the Bonds remains outstanding the Issuer will not take or authorize the taking of any action which will cause the -25- Bonds to be classified as "arbitrage bonds" within the meaning of said Section 103(c) and any lawful regulations thereunder. ARTICLE VIII SATISFACTION AND DISCHARGE Section 801. Satisfaction and Discharge of the Indenture. If (a) the Issuer shall pay or cause to be paid to the owners of the Bonds the principal, premium, if any, and interest to become due thereon at the times and in the manner stipulated therein and herein, and (b) all fees and expenses of the Trustee and any alternate paying agent shall have been paid, and (c) all other amounts payable to the owners of the Bonds and the Trustee under the provisions of the Bonds, this Indenture or the Loan Agreement shall have been duly paid, then these presents shall cease, determine and be void, and thereupon the Trustee shall cancel and discharge the lien of this Indenture, and execute and deliver to the Issuer such instruments in writing as shall be requisite to evidence such cancellation and discharge, and shall assign and deliver to the Issuer any property at the time subject to the lien of this Indenture which may then be in its possession, except amounts in the Bond Fund required to be paid to the Borrower under Section 509 hereof and except cash or securities held by the Trustee for the payment of interest on and retirement of the Bonds. Notwithstanding the provisions of this Section 801, however, the provisions of Section 210 hereof shall survive payment of the Bonds and release and termination of this Indenture. ARTICLE IX DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS Section 901. Events of Default. If any of the following events occur, it is hereby defined as and declared to be and to constitute an "Event of Default": (a) Default in the due and punctual payment of any installment of principal of, or premium, if any, or interest on any Bonds whether at the stated or any accelerated maturity thereof, (b) The occurrence and continuation of an Event of Default under the Loan Agreement as defined in Section 6.1 of the Loan Agreement; or (c) The occurrence and continuation of an Event of Default under the Mortgage as defined in Section 4.01 of the Mortgage; or (d) The failure by the Issuer to perform or observe any other of the covenants, agreements or conditions on the part of the Issuer in this Indenture or in the Bonds contained. -26- Section 902. Acceleration. Upon the occurrence of an event of default the Trustee shall, upon the written request of Allstate, if and so long as Allstate is a holder of any Bonds, and otherwise the holders of a majority in aggregate principal amount of Bonds then outstanding shall, by notice in writing delivered to the Issuer, declare the principal of all Bonds then outstanding and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Upon any declaration of acceleration hereunder the Issuer and the Trustee shall declare the entire unpaid principal amount of the Note to be immediately due and payable in accordance with Section 6.2 of the Loan Agreement. Section 903. Remedies; Rights of Bondholders. Upon the occurrence of an Event of Default, if requested to do so by Allstate, if and so long as Allstate is the holder of any Bonds, and otherwise by the holders of a majority in aggregate principal amount of the Bonds then outstanding, the Trustee will pursue any available remedy by suit at law or in equity to enforce the payment of the principal of, premium, if any, and interest on the Bonds then outstanding, and will give any notices, if any, required to be given to the Borrower in Section 6.1 of the Loan Agreement or Section 4.01 of the Mortgage or Section 901 or Section 910 hereof. 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, subject to Section 907 hereof, 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. No delay or omission to exercise any right or power accruing upon any default or event of default shall impair any such right or power or shall be construed to be a waiver of any such default or event of default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any default or event of default hereunder, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent default or event of default or shall impair any rights or remedies consequent thereon. Section 904. Right of Bondholders to Direct Proceedings. Anything in this Indenture to the contrary notwithstanding, Allstate, if and so long as Allstate is the holder of any Bonds, and otherwise the holders of a majority in aggregate principal amount of Bonds then outstanding shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the time, the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture. Section 905. Application of Moneys. (a) Moneys Other Than from the Mortgage and the Assignment of Lease. All moneys received by the Trustee (except for any moneys -27- received by the Trustee pursuant to the Mortgage and the Assignment of Lease) pursuant to any right given or action taken under the provisions of this Article, upon acceleration of the Bonds pursuant to Section 902, 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, be deposited in the Bond Fund and all such moneys in the Bond Fund shall be applied as follows: (i) Unless the principal of all the Bonds shall have become or shall have been declared due and payable, all such moneys shall be applied: FIRST To the payment to the persons entitled thereto of all installments of interest then due on the Bonds, in the order of the maturity of the installments of such interest and, if the amount available shall not be. sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discrimination or privilege; and SECOND -To the payment to the persons entitled thereto of the unpaid principal of and premium, if any, on any of the Bonds which shall have become due (other than Bonds called for prepayment 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. (ii) If the principal of all the Bonds shall have become due or shall have been declared due and payable, all such moneys shall be applied to the payment of the principal then due and unpaid on the Bonds (either to a holder or .a former holder of the Bond) and to the payment of the interest then due and unpaid on the Bonds (either to a holder or a former holder of the Bond), in such order as the holders thereof shall elect. (b) Moneys from the Mortgage and the Assignment of Lease. All moneys received by the Trustee pursuant to the Mortgage and the Assignment of Lease, 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 in connection therewith, and unless otherwise directed to the Restoration Fund, be deposited in the Bond Fund and all such moneys in the Bond Fund shall be applied as follows: (i) Unless the principal of all the Bonds and the Taxable Note shall have become or shall have been declared due and payable, all such moneys shall be applied: FIRST —To the payment to the persons entitled thereto of all installments of interest then due on the Bonds and the Taxable Note, in the order of the -28- maturity of the installment, of such interest and, if the amount available shall not be sufficient to pay in full any particular installments then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discrimination or privilege, and SECOND —To the payment to the persons entitled thereto of any unpaid installments of principal of and premium, if any, on the Bonds and the Taxable Note, 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 such installments of principal of and premium, if any, 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. (ii) If the principal of all the Bonds and the Taxable Note shall have become due or shall have been declared due and payable, all such moneys shall be applied to the payment of the principal then due and unpaid on the Bonds and the Taxable Note and to the payment of the interest then due and unpaid on the Bonds and the Taxable Note (either to a holder or a former holder of the Bonds or the Taxable Note), in such order as the holders thereof shall elect. (c) Whenever all principal of, premium, if any, and interest on all Bonds and on the Taxable Note 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 to the Borrower as provided in Section 509 hereof. Section 906. 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, but only upon the direction to the Trustee in accordance with Section 904, 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 or judgment shall be for the ratable benefit of the holders of the outstanding Bonds. Section 907. 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 (i) a Default has occurred of which the Trustee has been notified as provided in subsection (g) of Section 1001, or of which by said subsection it is deemed to have notices and (ii) such Default shall have become an Event of Default and the holders of a majority in aggregate principal amount of Bonds then outstanding shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, and have offered to the Trustee indemnity as provided in Section 1001, and (iii) the Trustee shall thereafter fail or refuse to -29- exercise the power hereinbefore granted, or to institute such action, suit or proceeding in its, his or their own name or names; and 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 ratable 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 payment of the principal of and interest on any Bond at and after maturity thereof, or the obligation 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 908. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely, then and in every such case the Issuer, the Borrower and the Trustee shall be restored to 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 909. Waivers of Events of Default. The Trustee shall waive any Event of Default hereunder and its consequences and rescind any declaration of acceleration of maturity of principal of and interest on the Bonds upon the written request or consent of the holders of at least a majority in aggregate principal amount of all Bonds then outstanding; provided, however, that there shall not be waived or rescinded any Event of Default specified in subsection (a) of Section 901 hereof unless prior to such waiver or rescission all arrears of principal and of interest, with interest on overdue installments of principal and (to the extent permitted by law) on overdue installments of interest at a rate per annum determined by adding four percent (4 %) to the interest rate on or with respect to such installment of principal in effect at the payment date of such installment, and with all delinquency charges payable pursuant to Section 202, 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. -30- ARTICLE X THE TRUSTEE Section 1001. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default: (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into.this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, .and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that: (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by one of its responsible officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of a majority in principal amount of the Bonds outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and (4) 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. -31- (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 1002. Notices to Bondholders. Within 5 days after the occurrence of any Default hereunder known to the Trustee, the Trustee shall transmit by registered or certified mail to all Holders of Bonds, the Borrower and the Issuer notice of such Default hereunder, known to the Trustee, unless such Default shall have been cured or waived. The Trustee shall transmit to all Holders of Bonds by registered or certified mail a copy of each notice or other communication received by the Trustee pursuant to the provisions hereof. Section 1003. Certain Rights of Trustee. Except as otherwise provided in Section 1001 hereof: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by a request or direction, signed on behalf of the Issuer by its principal officer; (c) whenever in the administration of this Indenture, the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon either a certificate signed on behalf of the Issuer by its principal officer or on behalf of the Borrower by the Authorized Borrower Representative; (d) the Trustee may consult with counsel and the written advice of such counsel or any opinion of Independent Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Bondholders pursuant to this Indenture, unless such Bondholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document but the Trustee, in its discretion, may make such further inquiry or -32- investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer or the Borrower personally or by agent or attorney; (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; and (h) the Trustee shall not be required to furnish any bond or surety for the performance of its obligations hereunder. Section 1004. Not Responsible for Recitals or Issuance of Bonds. The recitals contained herein and in the Bonds, except the Trustee's certificate of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Bonds, the sufficiency of the security granted hereunder or the effectiveness of any recording or filings undertaken to perfect such security. Section 1005. May Hold Bonds. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Bonds and may otherwise deal with the Issuer with the same rights it would have if it were not Trustee. Section 1006. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer or the Borrower. Section 1007. Compensation and Reimbursement of the Trustee. Under the terms and provisions of the Bond Purchase Agreement and particularly Section 7.1 thereof, the Borrower has agreed to pay all fees and expenses of the Trustee and all indemnities payable to the Trustee under this Indenture. It is understood that such fees and expenses and indemnities include: (a) reasonable compensation for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, reimbursement upon the request of the Trustee for all reasonable expenses, disbursements and advances incurred or made by it in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and -33- (c) indemnification for and against any loss, liability or expense incurred by the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder except for any loss, liability or expense occasioned by the neglect or misconduct of it.' The Trustee agrees to look solely to the Borrower for such payment, reimbursement and indemnification and that the Trustee shall have no lien on, or security interest in, the trust estate as security for such payments, reimbursements and indemnifications, except to the extent provided for in Section 905 hereof. Section 1008. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America or of any state, authorized under such laws to exercise corporate trust powers and under the laws of the State of Indiana to exercise such corporate trust powers within the State of Indiana, subject to supervision or examination by Federal or state authority. Any Trustee which is a successor trustee to the Trustee originally named herein shall have a combined capital and surplus of at least $100,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 1009. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 1010. (b) The Trustee may resign at any time by giving written notice thereof to the Issuer. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time by action of the holders of at least 51% in principal amount of the Bonds outstanding, delivered to the Trustee and to the Issuer. (d) If at any time: (1) the Trustee shall cease to be eligible under Section 1008 and shall fail to resign after written request therefor by the Issuer or by any such Bondholder, or -34- (2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, (i) the Issuer may remove the Trustee, or (ii) any Bondholder who has been a bona fide holder of a Bond for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Issuer shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by action of the holders of at least 51% in principal amount of the Bonds outstanding delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Issuer. If no successor Trustee shall have been so appointed by the Issuer or the Bondholders and accepted appointment in the manner hereinafter provided, any Bondholder who has been a bona fide holder of a Bond for at least 6 months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The Issuer shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first -class mail, postage prepaid, to the holders of Bonds at their addresses as shown in the Bond Register maintained pursuant to Section 209 hereof, and to the Borrower. Each notice shall include the name and address of the principal corporate trust officer of the successor Trustee. Section 1010. Acceptance of Appointment. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Issuer or the successor Trustee, such retiring Trustee shall upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 1007. Upon request of any such successor Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts. -35- No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article, to the extent operative. Section 1011. Merger or Consolidation. Any corporation into which the Trustee may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, to the extent operative, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Bonds shall have been authenticated, but not delivered, by the Trustee then in office, any. successor by merger or consolidation to such authenticating Trustee may adopt such authentication and deliver the Bonds so authenticated with the same effect as if such successor Trustee had itself authenticated such Bonds, Section 1012. Co,- trustees and Separate Trustee. At any time or times, for the purpose of meeting the legal requirements of any jurisdiction in which any of the trust estate may at the time be located, the Issuer and the Trustee shall have power to appoint, and, upon the written request of the Trustee or of the holders of at least 25% in principal amount of the Bonds outstanding, the Issuer shall for such purpose join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint, one or more Persons approved by the Trustee either to act as co- trustee, jointly with the Trustee, of all or any part of the trust estate, or to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section 1012. If the Issuer does not join in such appointment within 15 days after the receipt by it of a request so to do, or in case an Event of Default has occurred and is continuing, the Trustee alone shall have power to make such appointment. Should any written instrument from the Issuer be required by any co- trustee or separate trustee so appointed for more fully confirming to such co- trustee or separate trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Issuer. Every co- trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: (a) The Bonds shall be authenticated and delivered, and all rights, powers, duties and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised solely, by the Trustee. (b) The rights, powers, duties and obligations hereby conferred or imposed upon and exercised or performed by the Trustee in respect of such property shall be -36- conferred or imposed upon and exercised by the Trustee or by the Trustee and such co- trustee or separate trustee jointly, as shall be provided in the instrument appointing such co- trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed by such co- trustee or separate trustee. (c) The Trustee at any time, by an instrument in writing executed by it with the concurrence of the Issuer, may accept the resignation of or remove any co- trustee or separate trustee appointed under this Section, and, in case an Event of Default has occurred and is continuing, the Trustee shall have power to accept the resignation of, or remove, any such co- trustee or separate trustee without the concurrence of the Issuer, upon the written request of the Trustee, the Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co- trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section. (d) No co- trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the trustee or any other such trustee hereunder, (e) Any Act of the holders delivered to the Trustee shall be deemed to have been delivered to each such co- trustee and separate trustee. Section 1013. Trustee's Discretion. Except as specifically provided in this Indenture or the Agreement, whenever this Indenture or the Loan Agreement calls for or allows discretionary action on the part of the Trustee, including without limiting the generality of such actions, the giving or withholding of any consent, waiver, approval, or declaration, such action shall not be taken without the approval of Aetna, if and so long as Aetna is the holder of any Bonds, and otherwise by the holders of a majority in aggregate principal amount of Bonds outstanding the Trustee shall take any action authorized by it to be taken hereunder. ARTICLE XI SUPPLEMENTAL INDENTURES Section 1101. Supplemental Indentures. The Issuer and the Trustee shall not, without the consent of the holders of all of the Bonds, enter into an indenture or indentures supplemental to this Indenture. -37- ARTICLE XII AMENDMENT OF LOAN AGREEMENT OR NOTE Section 1201. Amendments, etc., to Loan Agreement or Note. The Issuer and the Trustee shall not, without the consent of all the Bondholders, consent to any amendment, change or modification; of the Loan Agreement or the Note. ARTICLE XIII MISCELLANEOUS Section 1301. Consents, etc., of Bondholders. Any consent, request, direction, approval, objection or other instrument required by this Indenture to be signed and executed by the Bondholders may be in any number of concurrent writings of similar tenor and may be signed or executed by such Bondholders in person or by agent appointed in writing. Proof of the execution of any such consent, request, direction, approval, objection or other instrument or of the writing appointing any such agent and of the ownership of Bonds, if made in the following manner, shall be sufficient for any of the purposes of this Indentures and shall be conclusive in favor of the Trustee with regard to any action taken under such request or other instrument, namely: 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. Section 1302. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds is intended or shall be construed to give to any person other than the parties hereto and the holders of the Bonds any legal or equitable right, remedy or claim under or in respect to this Indenture or any covenants, conditions and provisions herein contained, this Indenture and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the parties hereto and the holders of the Bonds as herein provided. Section 1303. 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. -38- 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 1304. Notices. It shall be sufficient service of any notice, request, complaint, demand or other paper on the Issuer, the Trustee or the Borrower if the same shall be duly mailed by registered or certified mail, postage prepaid, addressed as follows: If to the Issuer: City of South Bend, Indiana County -City Building South Bend, Indiana 46601 Attention: Mayor If to the Trustee: NBD Bank, N.A. One Indiana Square Indianapolis, Indiana 46266 Attention: Corporate Trust Department If to the Borrower: First Bank Center Limited Partnership c/o Hunter, Keith, Marshall & Eaton, Incorporated 5100 IDS Center Minneapolis, Minnesota 55402 Attention: Mr. Robert J. Keith All notices given by the Issuer to the Trustee or by the Trustee to the Issuer shall also be given to the Borrower and to each Bondholder and to FBT Bancorp, Inc., Post Office Box 1602, South Bend, Indiana 46634, Attention: Treasurer. Section 1305. Trustee as Paying Agent and Registrar. The Trustee is hereby designated and agrees to act as principal paying agent and Bond Registrar for and in respect to the Bonds. Section 1306. Payment Due on Sundays and Holidays. In any case where the date of maturity of interest on or principal of the Bonds or the date fixed for prepayment of any Bonds shall be on a Sunday or a legal holiday or a day on which banking institutions are authorized by law to close in the City of Indianapolis, Indiana, then payment of interest or principal (and premium, if any) need not be made on such date in such city but may be made on the next succeeding business day not a Sunday or a legal holiday or a day upon which banking institutions are authorized by law to close with the same force and effect as if made on the date of maturity or the date fixed for prepayment, and no interest shall accrue for the period after such date. Section 1307. 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. -39- Section 1308. Applicable Law. This Indenture shall be governed exclusively by the applicable laws of the State of Indiana. .I IN WITNESS WHEREOF, the Issuer and the Trustee have caused these presents to be signed, attested and sealed in their respective names by their duly authorized officers, all as of November 15, 1993. (SEAL) ATTEST: City Clerk (SEAL) ATTEST: Its CITY OF SOUTH BEND, INDIANA By Its: Mayor NBD BANK, N.A., as Trustee By— Its -41- Vice President