HomeMy WebLinkAboutRegarding Issurance of economic development revenue refunding bonds Regency Place Project • '1(
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8314-92
ORDINANCE No.
Passed by the Common Council of the City of South Bend, Indiana
November 9, 92
'9
Attest:.
�� City Clerk
IRENE K. GAMMON
Attest: �• President of Common Council
Presented by me to the Mayor of the City of South Bend, Indiana—
November 10, 92
19
City Clerk
IRENE K. GAMMON
Approved and signed by me I 1� =g C/°)N
6 Mayor
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SUBSTITUTE
ORDINANCE NUMBER £.3/V 907
OF THE
COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA REGARDING ISSUANCE OF ECONOMIC DEVELOPMENT REVENUE
REFUNDING BONDS (REGENCY PLACE PROJECT) .
WHEREAS, pursuant to Title 36, Article 7, Chapter 12 of the Indiana Code, as amended
(the "Act"), the Commission has heretofore issued $4,340,000 principal amount of City of South
Bend Health Care Facilities Revenue Bonds Fountainview Place of South Bend Issue (FHA
Insured Project), Series A (the "1982 Bonds") on October 1, 1982 for the purpose of financing
the costs of a project, consisting of the acquisition and improvement of certain premises in the
City and construction thereon and equipment of a nursing home facility (the "Project"), owned
by Health Quest Realty V, an Indiana limited partnership (the "Developer"); and
WHEREAS, the City loaned (the "1982 Loan") the proceeds of the 1982 Bonds to the
Developer pursuant to a Loan Agreement dated as of October 1, 1982 (the "1982 Financing
Agreement") between the City and the Developer, pursuant to which the Developer agreed to
make payments to provide sufficient funds to pay the principal of and interest on the 1982
Bonds; and
WHEREAS, the 1982 Loan is evidenced by the Developer's note (the "Note") in the
aggregate principal amount of$3,853,800, and a Mortgage securing the Note constituting a first
lien on the Project (the "Mortgage"); and
WHEREAS, the United States Secretary of Housing and Urban Development, acting
through the Federal Housing Commissioner ("FHA"), has insured the advances of funds secured
by the Mortgage, and the Note was initially endorsed for insurance by FHA pursuant to Section
232 of the National Housing Act, as amended, and the regulations thereunder; and
WHEREAS, the City, as requested by the Developer, has determined to issue, sell and
deliver $3,610,000 City of South Bend, Health Care Facilities Revenue Refunding Bonds,
Regency Place of South Bend Issue(FHA Insured Project) Series 1992 A (the "Bonds")pursuant
to the Act to make funds available for the refunding of the 1982 Bonds and the refinancing of
the Project; and
WHEREAS, the 1982 Bonds shall be called for redemption on February 1, 1993; and
10845.1
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WHEREAS, upon the redemption of the 1982 Bonds, the Note and the Mortgage will be
held by the Trustee as security for the Bonds and FHA will continue to insure the advances of
funds secured by the Mortgage and Note; and
WHEREAS, the City desires to sell the Bonds through a private placement thereof with
certain investors, through Bank One, Columbus, N.A. (the "Placement Agent"); and
WHEREAS, there have been prepared and submitted to the Common Council of the City
(the "Common Council") proposed forms of:
(i) the Trust Indenture dated as of November 1, 1992 (the "Indenture")
between the City and Society National Bank, Indiana, as trustee (the "Trustee") pursuant
to which the Bonds will be issued;
(ii) a Preliminary Private Placement Memorandum (the "Preliminary
Placement Memorandum") to be used by the Placement Agent in connection with the sale
of the Bonds;
(iii) a Bond Placement Agreement (the "Placement Agreement") between the
City and the Placement Agent in connection with the sale of the Bonds; and
(iv) the Loan Agreement (the "Loan Agreement") dated as of November 1,
1992 between the City and the Developer.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA:
Section 1. Incorporation of Recitals. The Recitals contained in this Ordinance are true
and correct and are incorporated in this Ordinance by this reference.
Section 2. Findings: Public Benefits. The Common Council of the City hereby fords
and determines that the refunding of the 1982 Bonds would be of benefit to the health and
general welfare of the City and would comply with the Act.
Section 3. Issuance of the Bonds. The Common Council hereby authorizes the issuance
of the Bonds by the City, for the purpose of refunding the 1982 Bonds issued by the City to
acquire, improve, furnish or equip the Project. The principal amount of the Bonds shall not
exceed $3,610,000. The Bonds shall be dated November 1, 1992; the Bonds shall be numbered
as the Trustee shall determine and shall be fully registered without coupons. The Bonds shall
bear interest at such rate not to exceed 10.5% per annum and shall have maturities and
redemptions as set forth in the Indenture approved by the Mayor of the City (the "Mayor") or
Clerk of the City (the "Clerk").
10845.1 2
The principal of the Bonds shall be payable upon presentation thereof at the principal
corporate trust office of the Trustee under the Indenture. The interest on the Bonds shall be paid
by check or draft of the Trustee sent to the registered owners of the Bonds; provided, however,
if requested in writing by an owner of the Bonds and if proper instructions are provided to the
Trustee as required under the Indenture, the Trustee is hereby authorized to pay the interest on
the Bonds by wire transfer to the owners thereof.
The Bonds shall be executed on behalf of the City by, and bear the manual or facsimile
signature of, the Mayor and Clerk, and the seal of the City shall be thereunto affixed (or
imprinted or engraved if in facsimile).
The Bonds shall be in the form set forth in the final form of the Indenture.
Section 4. Sale of Bonds. The Common Council hereby authorizes the placement of the
Bonds to the original purchaser thereof pursuant to the Indenture and the Placement Agreement.
Section 5. Limited Obligation. THE BONDS AND THE INTEREST THEREON DO
NOT AND SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF, OR A CHARGE
AGAINST THE GENERAL CREDIT OR TAXING POWER OF, THE CITY, BUT ARE
LIMITED OBLIGATIONS OF THE CITY PAYABLE SOLELY FROM REVENUES AND
OTHER AMOUNTS DERIVED FROM THE LOAN AGREEMENT.
Section 6. The Indenture. The Indenture is hereby approved in the form submitted to
this meeting, and a copy of the Indenture shall be filed with the minutes of this meeting. The
Mayor and the Clerk are hereby authorized and directed to execute and deliver the Indenture
without further approval of the Common Council in substantially the form herein approved with
such additions, deletions and modifications thereto as may be approved under the Act, the
execution of the Indenture being conclusive evidence of such approval and of the approval of
the Common Council; and the Clerk is hereby authorized and directed to affix the seal of the
City to the Indenture and to attest the same.
Section 7. Trustee. Society National Bank, Indiana, is hereby appointed Trustee under
the Indenture. The Indenture may provide that the Trustee thereunder, or another corporate
entity, shall act as bond registrar and authenticating agent.
Section 8. Delivery of Bonds. After execution on behalf of the Mayor and the Clerk,
the Bonds shall be delivered to the Trustee, which is hereby authorized and requested to
authenticate and deliver the Bonds to the Placement Agent for the benefit of the original
purchaser in accordance with and upon compliance with the provisions of the Indenture.
Section 9. Bond Counsel. Kutak Rock is hereby appointed Bond Counsel in connection
with the issuance and sale of the Bonds.
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Section 10. The Placement Agreement. The Placement Agreement is hereby approved
in the form submitted to this meeting, and a copy of the Placement Agreement shall be filed with
the minutes of this meeting. The Mayor and the Clerk are hereby authorized and directed to
execute and deliver the Placement Agreement in substantially the form herein approved with
such additions, deletions and modifications thereto as may be approved under the Act, the
execution of the Placement Agreement being conclusive evidence of such approval and of the.
approval of the Common Council.
Section 11. The Loan Agreement. The Loan Agreement is hereby approved in the form
submitted to this meeting, a copy of which shall be filed with the minutes of this meeting. The
Mayor and the Clerk are hereby authorized and directed to execute and deliver the Loan
Agreement in substantially the form herein approved with such additions, deletions and
modifications thereto as may be approved under the Act, the execution of the Loan Agreement
being conclusive evidence of such approval and of the approval of the Common Council.
Section 12. Preliminary Placement Memorandum. The use by the Placement Agent of
the Preliminary Placement Memorandum in connection with the placement of the Bonds by the
Placement Agent is hereby approved, and the Common Council hereby authorizes the
preparation and use of a final Placement Memorandum containing such additions, deletions and
modifications to the Preliminary Placement Memorandum as may be approved by the City as
evidenced by the signature of the Mayor thereon. The Mayor is hereby authorized and directed
to execute and deliver the final Placement Memorandum.
Section 13. Blue Sky Survey. The Mayor and the Clerk are hereby authorized in the
name and on behalf of the City to take any and all action which the Placement Agent shall
request and which the Mayor and the Clerk may deem necessary or advisable with the advice
of counsel for the City in order to effect the registration or qualification (or exemption
therefrom) of the Bonds for issue, offer, sale or trade under the Blue Sky or securities laws of
any of the states of the United States of America and in connection therewith, to execute,
acknowledge, verify, deliver, file or cause to be published any applications, reports, consents
to service of process and other papers and instruments which may be required under such laws,
and to take any and all further action which he may deem necessary or advisable in order to
maintain any such registration or qualification for as long as the Mayor and the Clerk deem
necessary or as required by law or by the Placement Agent, provided, however, the Mayor and
the Clerk need not consent to service of process in any jurisdiction other than the State of
Indiana.
Section 14. Other Action. The Mayor and the Clerk are hereby authorized and directed
to execute and deliver, in the name and on behalf of the City, any and all additional documents
and instruments necessary or proper to do and cause to be done any and all acts and things
necessary or proper for carrying out the transactions contemplated by this Ordinance (including
10845.1 4
the preambles hereto and the documents mentioned herein) and the issuance and sale of the
Bonds and securing of the Bonds.
Section 15. No Personal Liability. No stipulation, obligation or agreement herein
contained or contained in the Indenture, the Placement Agreement, the Loan Agreement, the
Bonds or in any other agreement or document executed on behalf of the City shall be deemed
to be a stipulation, obligation or agreement of any member of the Common Council, officer,
agent or employee of the Common Council in his individual capacity, and no such member of
the Common Council, officer, agent or employee shall be personally liable on the Bonds or be
subject to personal liability or accountability by reason of the issuance thereof.
Section 16. Action Approved and Confirmed. All acts and doings of the officers of the .
City which are in conformity with the purposes and intent of this Ordinance and in the
furtherance of the issuance of the Bonds and the execution, delivery and performance of the
documents and agreements authorized hereby are in all respects approved and confirmed.
Section 17. Severability. If any provision of this Ordinance shall be held or deemed to
be illegal, inoperative or unenforceable, the same shall not affect any other provision or cause
any other provisions to be invalid, inoperative or unenforceable to any extent whatsoever.
Section 18. Repealer: Effective Date. Any ordinances, resolutions or orders or parts
thereof in conflict with this Ordinance are to the extent of such conflict hereby repealed. This
Ordinance shall take effect immediately upon its adoption by the Common Council and approval
by the Mayor.
Section 19. Inspection Copies. Two copies of the Indenture, Loan Agreement,
Placement Agreement, Preliminary Placement Memorandum incorporated into this Ordinance
were duly filed in the Office of the Clerk of the City and are available for public inspection in
accordance with Section 36-1-5-4 of the Indiana Code.
SOUTH BEND COMMON COUNCIL
Mem6/er
Filed in Clerk's Office
10845.1 a 5 —
1 st READING 1/- 9
PUBLIC HEARING / 9-9 a NOV 9
3 rd READING //
NOT APPROVED IRENE GAMMON
REFERRED //- 9—9 0{ , CITY CLERK,SO.BEND,IN.
P.
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TRUST INDENTURE
between
CITY OF SOUTH BEND, INDIANA
and
SOCIETY NATIONAL BANK, INDIANA
as Trustee
Securing _
$4,340,000
City of South Bend
Health Care Facilities Revenue Refunding Bonds
Regency Place of South Bend Issue
(FHA Insured Project)
Series 1992 A
Dated as of November 1, 1992
Filed in Clerk's Office
3152.1
IRENE GAR.NON
CITY CLERK,SO.BEND,IN.
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TABLE OF CONTENTS
P
PARTIES
PREAMBLE
GRANTING CLAUSES
ARTICLE I
DEFINITIONS
Section 101. Definitions
Section 102. Rules of Interpretation
Section 103. Miscellaneous Rules
ARTICLE II
THE BONDS
Section 201. Authorized Amount of Bonds; Details
of Bonds
Section 202. Authorization of Bonds; Sale and
Delivery of the Bonds
Section 203. Execution
Section 204. Authentication
Section 205. Mutilated, Lost, Stolen or
Destroyed Bonds
Section 206. Transfer of Registration and
Exchange of Bonds; Persons
Treated as Owners
Section 207. Temporary Bonds
Section 208. Book-Entry System
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds
Section 302. Reduction in Debt Service Reserve Fund
Section 303. Partial Redemption
Section 304. Selection of Bonds for Redemption
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Section 305. Notice of Redemption
Section 306. Cancellation
Section 307. Payment Upon Redemption
Section 308. Effect of Redemption
ARTICLE IV
FUNDS; INVESTMENTS
Section 401. Pledge and Assignment
Section 402. Application of Bond Proceeds
Section 403. Establishment of Funds
Section 404. Application of Net Revenues
Section 405. Application of Expense Fund
Section 406. Bond Fund
Section 407. Debt Service Reserve Fund
Section 408. Investment of Moneys in Funds
Section 409. Transfer of Moneys to Redemption Fund
Section 410. Rebate Fund
Section 411. Nonpresentment of Bonds
Section 412. Final Balances
Section 413. Procedure When Funds Are Sufficient
to Pay all Bonds
ARTICLE•V
GENERAL COVENANTS AND REPRESENTATIONS
Section 501. Payment of Principal of and Interest •
on Bonds
Section 502. Instruments of Further Assurance
Section 503. Corporate Existence and Maintenance
Section 504. Recordation and Filing
Section 505. Priority of Lien; No Modification
of Security; No Additional
Indebtedness
Section 506. Reports
Section 507. Tax Covenants
Section 508. Application of Proceeds of Insurance
3152.1 it
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Page
Section 509. Mortgage, Security Agreement and Regulatory
Agreement Controlling
Section 510. Application of Proceeds of Condemnation
Compensation
Section 511. Extension of Time for Payment of Interest,
Etc. Prohibited
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Section 601. Events of Default
Section 602. Acceleration; Other Remedies
Section 603. Rights of Bondholders
Section 604. Waiver by Issuer
Section 605. Application of Money
Section 606. Remedies Under Mortgage and FHA
Mortgage Insurance
Section 607. Application of FHA Mortgage Insurance
Benefits
Section 608. No Obligation of FHA
Section 609. Remedies Vested in Trustee
Section 610. Remedies of Bondholders
Section 611. Termination of Proceedings
Section 612. Waivers of Events of Default
ARTICLE VII
THE TRUSTEE
Section 701. Certain Duties and
Responsibilities
Section 702. Notice of Default
Section 703. Certain Rights of Trustee
Section 704. Money Held in Trust
Section 705. Compensation and Reimbursement
Section 706. Successor Trustee
Section 707. Resignation by the Trustee
Section 708. Removal of the Trustee
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Section 709. Appointment of Successor Trustee
Section 710. Qualification of Successor
Section 711. Instruments of Succession
Section 712. Merger of Trustee
Section 713. Enforcement of the Note, Mortgage
and Servicing Agreement; Amendments
to Note and Mortgage
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 801.- Supplemental Indentures Not
Requiring Consent of Bondholders
Section 802. Supplemental Indentures Requiring
Consent of Bondholders
ARTICLE IX
SATISFACTION AND DISCHARGE OF INDENTURE
Section 901. Defeasance
ARTICLE X
MISCELLANEOUS
Section 1001. Consent and Other Instruments of
Bondholders
Section 1002. Limitation of Rights
Section 1003. Severability
Section 1004. Notices
Section 1005. Payments Due on Saturdays, Sundays
and Holidays
Section 1006. Counterparts
Section 1007. Situs
Section 1008. No Recourse
Section 1009. Successors and Assigns
Section 1010. Books, Records and Accounts
Section 1011. Subordination to HUD Regulations
3152.1 iv
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A ,
Page
TESTIMONIUM
SIGNATURES AND SEALS
EXHIIBIT A - Form of Bonds
3152.1 V
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TRUST INDENTURE
THIS TRUST INDENTURE dated as of November 1, 1992 by and between the CITY
OF SOUTH BEND (the "Issuer"), a municipal corporation and a political subdivision of the
State of Indiana, and [NAME] (the "Trustee"), a corporation organized and duly existing under
the laws of the State of Indiana;
WITNESSETH:
WHEREAS, the Issuer has, pursuant to Title 36, Article 7, Chapter 12 of the Indiana
Code, as amended (the "Act"), and by Ordinance No. adopted by the Board of Trustees of
the Issuer on [DATE], created as a department of the Issuer, the South Bend Economic
Development Commission (the "Commission"); and
WHEREAS, pursuant to the Act the Commission has heretofore authorized and approved
the financing of the costs of a project, consisting of the acquisition and improvement of certain
premises in the Issuer and construction thereon and equipment of a nursing home containing 52
skilled care beds and 92 intermediate care beds (the "Project"), owned by Health Quest Realty
V, an Indiana general partnership (the "Developer"); and
WHEREAS, the Project was financed with the proceeds of$4,340,000 principal amount
of City of South Bend Health Care Facilities Revenue Bonds Fountainview Place of South Bend
Issue (FHA Insured Project), Series A (the "1982 Bonds") issued by the Issuer on November
1, 1982 pursuant to the Act; and
WHEREAS, the Issuer loaned (the "1982 Loan") the proceeds of the 1982 Bonds to the
Developer pursuant to a Loan Agreement dated as of November 1, 1982 (the "1982 Financing
Agreement") between the Issuer and the Developer, pursuant to which the Developer agreed to
make payments to provide sufficient funds to pay the principal of and interest on the 1982
Bonds; and
WHEREAS, the 1982 Loan is evidenced by the Developer's note (the "Note") (FHA
Form No. ) in the aggregate principal amount of$3,853,800, and a Mortgage securing the Note
(FHA Form No. ) constituting a first lien on the Project (the "Mortgage"); and
WHEREAS, pursuant to a commitment dated [DATE](the "Commitment for Mortgage
Insurance") issued to Blyth Eastman Paine Webber Health Care Funding, Inc. (the "Mortgage
Banker") and a Regulatory Agreement (FHA Form No. ) with the Developer (the
"Regulatory Agreement"), the United States Secretary of Housing and Urban Development,
acting through the Federal Housing Commissioner ("FHA"), insured the advances of funds
secured by the Mortgage, and the Note was initially endorsed for insurance by FHA pursuant
to Section 232 of the National Housing Act, as amended, and the regulations thereunder; and
3152.1
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WHEREAS, the Issuer, as requested by the Developer, has determined to issue, sell and
deliver "$4,340,000 City of South Bend, Health Care Facilities Revenue Refunding Bonds,
Fountainview Place of South Bend Issue (FHA Insured Project) Series 1992 A" (the "Bonds")
pursuant to the Act and this Indenture to make funds available for the refunding of the 1982
Bonds and the refmancing of the Project; and
WHEREAS, upon the redemption of the 1982 Bonds, the Note and the Mortgage will be
held by the Trustee as security for the Bonds and FHA will continue to insure the advances of
funds secured by the Mortgage and Note; and
WHEREAS, the Issuer, by Ordinance No. [ ] adopted by the City Council of the Issuer
on [Date], approved the issuance of the Bonds for the purpose of redeeming the 1982 Bonds;
and
WHEREAS, all requirements of law have been fully complied with, and all other acts
and things necessary to make the Bonds,when executed by the Issuer and when authenticated
and delivered by the Trustee, duly issued, legal, valid and binding obligations of the Issuer, and
all other acts and things necessary to constitute this Indenture a legal, valid and binding
instrument for the security of the Bonds have been done and performed;
NOW, THEREFORE, the Issuer, in consideration of the premises and the acceptance by
the Trustee of the trusts hereby created and of the purchase and acceptance of the Bonds by the
owners thereof, and for other good and valuable consideration, the receipt of which is hereby
acknowledged, in order to secure the payment of the principal of, premium, if any, and interest
on the Bonds according to their tenor and effect and the performance and observance by the
Issuer of all the covenants expressed or implied herein and in the Bonds, does hereby bargain,
sell, convey, pledge, assign and grant a security interest unto the Trustee in and to the
following, subject only to the provisions of this Indenture permitting the application thereof or
to the purposes and on the terms and conditions set forth herein (said property being herein
referred to as the "Trust Estate"), to wit:
GRANTING CLAUSE ONE
All right, title and interest of the Issuer in the Loan Agreement (hereinafter defined), the
Loan and the Note, the Mortgage and all other security therefor or certificates or instruments
evidencing the same, and all amendments, modifications and renewals thereof, and all FHA
mortgage insurance or casualty insurance proceeds or condemnation awards payable with respect
thereto, and any interest earnings thereon, provided, however, that the Trust Estate shall not
include either (a) any payments received by the Trustee which are to be applied by the Trustee
(as mortgagee under the Mortgage), pursuant to paragraph (9)(c)(I) or (II) of the Mortgage or
3152.1 2
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(b) any funds held by the Trustee (as mortgagee under the Mortgage) on behalf of the Developer
pursuant to the Mortgage or the Regulatory Agreement.
GRANTING CLAUSE TWO
All right, title and interest of the Issuer in and to any money held under this Indenture
by the Trustee except for (i) moneys and investment obligations held by the Trustee for the
redemption of Bonds notice of the redemption of which has been duly given, (ii) moneys and
investment obligations held by the Trustee for the payment of the principal of, premium, if any,
and accrued interest on the Bonds that have become due and payable but not presented to the
Trustee for such payment and (iii) money and investment obligations held in the Rebate Fund.
GRANTING CLAUSE THREE
Except for the Rebate Fund, all funds, moneys and securities and any and all other rights
and interest in property whether tangible or intangible from time to time hereafter by delivery
or by writing of any kind, conveyed, mortgaged, pledged, assigned or transferred as and for
additional security hereunder for the Bonds by the Issuer or by anyone on its behalf or with its
written consent to the Trustee, which is hereby authorized to receive any and all such property
at any and all times and to hold and apply the same subject to the terms hereof.
TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby
conveyed and assigned, or agreed or intended so to be, to the Trustee and its successors in said
trust and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal
and proportionate benefit, security and protection of all 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, provided that the Rebate Fund and any
money or investments required to be deposited therein and any other amount required to be paid
to the United States of America shall be held for the benefit of the United States of America and
not for the benefit of the owners of the Bonds;
PROVIDED, HOWEVER, that if the Issuer or its successors or assigns shall pay or
cause to be paid to the owners of the Bonds the principal, interest and premium, if any, to
become due thereon at the times and in the manner provided in Article IX and if the Issuer shall
keep, perform and observe, or cause to be kept, performed and observed all its covenants,
warranties and agreements contained herein, this Indenture and the estate and rights hereby
granted shall, at the option of the Issuer, cease 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 satisfy the lien hereof, and reconvey to the Issuer
any property at the time subject to the lien of this Indenture which may then be in its possession,
3152.1 3
except for the Rebate Fund, except funds held by the Trustee for the payment of interest or
premium, if any, and the principal of the Bonds; otherwise, this Indenture shall be and remain
in full force and effect, and upon the trusts and subject to the covenants and conditions
hereinafter set forth.
3152.1 4
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ARTICLE I
DEFINITIONS
Section 101. Definitions. The terms defined in this Section 101 or in the Preamble
hereto (except as herein otherwise expressly provided or unless the context otherwise requires) •
for all purposes of this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 101 or in the Preamble hereto.
"Act" means Title 36, -Article 7, Chapter 12 of the Indiana Code, as amended.
. "Beneficial Owner"- means, with respect to Bonds while in• a Book-Entry Form, each
person who beneficially owns such Bond(s) and on whose behalf, directly or indirectly, such
Bond is held by the Depository pursuant to a Book-Entry System.
"Bond Counsel" means any attorney at law or firm of attorneys, of nationally recognized -
standing in matters pertaining to the federal tax exemption of interest on bonds issued by states -
and political subdivisions, and duly admitted to practice law before the highest court of any state
of the United States of America or the District of Columbia.
"Bond Fund" means the Bond Fund established pursuant to Section 401.
"Bondholder",or "holder" or "registered owner," when used with respect to any bond,
means the person or persons in whose name such bond is registered, provided that, with respect
to Bonds while in Book-Entry. Form, for purposes of any consent or approval hereunder, the
term "Bondholder" shall mean the Beneficial Owner.
"Bond Register" and "Bond Registrar" have the-respective meaning specified in Section
207.
"Bond Year" means the annual period ending on (1) November 1 of each year
(commencing November 1, 1992) occurring on or before the final Payment Date on the Bonds.
"Bonds" means$4,340,000 City of South Bend Health Care Facilities Revenue Refunding
Bonds Fountainview Place of South Bend Issue (FHA Insured Project) Series 1992 A.
"Book-Entry Form" means Bonds which are held in the name of the Depository (or its
nominee) with each maturity evidenced by a single Bond certificate.
"Book-Entry System" means a system of record keeping, securities clearance and funds
transfer and settlement maintained for securities.by the Depository and Participants.
3152.1
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"Business Day" means any clay other than a Saturday, Sunday, a legal holiday or a day
on which banking institutions in the State or in the State of New York are authorized or required
by law to remain closed.
"Certified Resolution" means a copy of one or more resolutions or ordinances certified
by the Clerk of the Issuer under its seal to have been duly adopted by the Board of Trustees of
the Issuer, and to be in effect on the date of such certification.
"Closing Date" means the date of initial issuance and delivery of the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended, and with respect to a
specific section thereof, such reference shall be deemed to include the Regulations promulgated
under such section.
"Debt Service" means the amount of principal of, premium and interest on the Bonds due
on any Payment Date.
"Debt Service Reserve Fund" means the Debt Service Reserve Fund established pursuant
to Section 401 hereof.
"Debt Service Reserve Fund Requirement" means an amount equal to the sum of (i) 12
months' interest on the original principal amount of the Bonds, (ii) one percent of the then
outstanding principal amount of the Note, (iii) one percent of the original principal amount of
the Bonds and (iv) one month's interest on the then outstanding principal amount of the Note.
"Depository" means The Depository Trust. Company in New York, New York, its
successors or assigns, or any other person who shall be a Holder of all Bonds directly or
indirectly for the benefit of Beneficial Owners and approved by the Owner, the Trustee and
Newman and Associates, Inc. to act as the Depository, provided that any Depository shall be
registered or qualified as a "clearing agency" within the meaning of Section 17A of the
Securities Exchange Act, as amended.
"Developer" means Health Quest Realty V, an Indiana general partnership.
"FHA" means the Federal Housing Administration, an organizational unit within HUD.
"FHA Insurance Account" means the account of the Mortgage Payment Fund so
designated which is established pursuant to Section 4 of the Servicing Agreement.
"HUD" means the U.S. Department of Housing and - Urban Development and its
successors and assigns.
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"Indenture" means this Trust Indenture and all indentures supplemental hereto.
"Investment Instructions" means the Investment and Rebate Instructions dated [Date] from
Issuer to Trustee.
. "Letter of Representations" means the Letter of Representations among the Depository,
the Issuer and the Trustee entered into in connection with issuance of the Bonds and any
amendments or supplements-thereto.
• "Loan" means the loan from the Issuer to the Developer to provide for the prepayment
• of the 1982 Bonds.
"Loan Agreement" means the Loan Agreement dated as of November 1, 1992-between
the Issuer and the'Developer, and any amendments or supplements thereto. •
"Mortgage" means the Mortgage (FHA Form No.-4118-D) executed by the Developer
concurrently with the delivery of the 1982 Bonds, delivered by the Developer to the Mortgage
Banker, and assigned to the Trustee, as mortgagee, and any supplemental mortgage hereafter
. granted on the Project (including any additional mortgage securing an additional note insured
by FHA under Sections 232 or 241 of the National Housing Act, as amended) from the
• Developer to the Trustee, as mortgagee, or granted to the Mortgage Banker and assigned to the
Trustee, together with the building loan agreement(s) and regulatory agreement(s) incorporated.
therein by reference.
"Mortgage Banker" means Blyth Eastman Paine Webber Health Care Funding, Inc.
"Mortgage Payment Fund" means the fund so designated which is established pursuant
to Section 4 of the Servicing Agreement.
"Mortgage Principal and Interest Account" means the account of the Mortgage Payment
Fund so designated which is established pursuant to Section 4 of the Servicing_Agreement.
"National Housing Act" means the National Housing Act of 1934, as amended.
"1954 Code" means the Internal Revenue Code of 1954, as amended and in effect prior •
to the enactment of the Tax Reform Act of 1986, and with respect to a specific section thereof,
such reference shall be deemed to include the Regulations promulgated under such section.
"1982 Bonds" means the same as that term is defined in the Preamble to this Indenture.
"Net Revenues" means all income, revenues, proceeds and other amounts received by
the Issuer or the Trustee from or in connection with the Mortgage Loan (including and
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prepayments thereof) and any and all interest, profits or other income derived from the
investment of amounts in any funds or accounts (but not the Rebate Fund) estblished pursuant
to this Indenture, but shall not include (i) amounts retained by the Mortgage Servicer as a
servicing fee, (ii) any payments received by the Trustee which are to be applied by the Trustee
(as mortgagee under the Mortgage), pursuant to paragraph (9)(c)(I) or (II) of the Mortgage (iii)
any funds held by the Trustee (as mortgagee under the Mortgage) on behalf of the Developer
pursuant to the Mortgage or the Regulatory Agreement,
"Note" means the Mortgage Note (FHA Form No. 4118-B) executed by the Developer
concurrently with the delivery of the 1982 Bonds, and delivered by the Developer to the
Mortgage Banker, and assigned to the Trustee, as mortgagee under the Mortgage in the original
principal amount of $3,861,100 and any supplement or superseding or additional note secured
by the Mortgage (including any additional note insured by FHA pursuant to Sections 232 or 241
of the National Housing Act, as amended) or any portion thereof which note or portion thereof
will heretofore evidence the indebtedness of the Developer under the Loan Agreement and
secures the Bonds.
. "Notice Address" means, with respect to each of the Persons listed below, the address
set forth below until such time as such Person shall have notified each of the other Persons listed
below of a new Notice Address.
If to the Issuer: City of South Bend
[Address]
South Bend, Indiana
Attention:
If to the Trustee: [To Come]
Attention: _
If to HUD or FHA: U.S. Department of Housing and
Urban Development
451 Seventh Street, S.W.
Washington, D.C. 20410
"Ordinance" means Ordinance No. [ ] of the Issuer adopted on [Date].
"Outstanding," when used with respect to the Bonds, means all Bonds theretofore
authenticated and delivered under this Indenture, except:
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(a) Bonds theretofore cancelled by the Trustee or theretofore delivered to the
Trustee for cancellation;
(b) Bonds for the payment or redemption of which money or obligations shall
have been theretofore deposited with the Trustee in accordance with Article IX; and
(c) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered under this Indenture.
In determining whether the holders of a requisite aggregate principal amount of
Outstanding Bonds have concurred in any request, demand, authorization, direction, notice,
consent or waiver under the provisions of this Indenture, Bonds that are owned by the Developer
or the Issuer or any affiliate of any one of said entities (for the purpose of this definition, an
"affiliate" of any specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified Person) shall be
disregarded and deemed not to be outstanding hereunder for the purpose of any such
determination. For purposes of this definition, "control," when used with respect to any
specified Person, means the power to direct the. management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. Bonds so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to
vote such Bonds and that the pledgee is not a Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Developer, the Issuer or any
other obligor on the Bonds. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of Counsel shall be full protection to the Trustee. The Trustee may
conclusively assume that all Bonds are not so owned unless it has written notice to the contrary
which references this Indenture.
"Payment Date" means, (1) with respect to the Series A Bonds, while the Certificates bear .
interest at the Weekly Reset Rate on the first day of each month; while the Ceritifates bear
interest at the Term Reset Rate each February 1 and August I; and the first day of each month
upon receipt by the Trustee of the Notice of Termination of Custody Agreement substantially
in the form attached hereto as Exhibit [ ], payment date on each February 1 and August 1 and
(ii) with respect to the Series B Bonds, February 1 and August 1 commencing on February 1,
1993.
"Person" means any individual, corporation, partnership,joint venture, association,joint
stock company, trust company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
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"Project" means the nursing home containing 52 skilled care beds and 92 intermediate
care beds located in the Issuer and more particularly described in Exhibit A to the Loan
Agreement, financed with the proceeds of the 1982 Bonds.
"Qualified Expenses" means expenses of the Trustee and the Rebate Analyst.
"Rating Agency" means Standard & Poor's and its successors and assigns.
"Rebate Fund" means the Rebate Fund established pursuant to Section 402.
"Regular Record Date" means, with respect to a Payment Date, the close of business on
the fifteenth day of the month immediately preceding such Payment Date whether or not a
business day..
"Regulations" means the proposed, temporary or final income tax regulations
promulgated under the Code, or under the 1954 Code, and effective under the Code, as such.
regulations may be amended from time to time.
"Regulatory Agreement" means the Regulatory Agreement(FHA Form No. - ) between-
the Developer and FHA dated [Date].
•
"Reserve Fund for Replacements" means the fund so designated which is established
pursuant to Section 4 of the Servicing Agreement, as required by paragraph 2 of the Regulatory
Agreement.
"Servicing Agreement" means the Servicing Agreements entered into between the
Mortgage Banker and the Trustee dated as of September I, 1982,.and any amendments or
supplements thereto.
"State" means the State of Indiana.
"Tax and Insurance Account" means the account of the Mortgage Payment Fund so
designated which is established pursuant to Section 4 of the Servicing Agreement.
• "Trustee" means [Name]. as trustee under this indenture and any successors in trust
hereunder.
"Trustee's Annual Fee" mean the annual fee charged by the Trustee for performance of
its obligations hereunder, initially in the amount of$ , which shall be subject to change
from time to time at the option of the Trustee.
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"Trust Estate" means the property rights, money, securities and other amounts pledged
and assigned pursuant to the Granting Clauses of this Indenture.
Section 102. Rules of Interpretation. The following rules shall apply to the construction
of this Indenture unless the context required otherwise: (a) the singular includes the plural and
the plural, the singular; (b) words importing any gender include the other genders; (c) references •
to statutes are to be construed as including all statutory provisions consolidating, amending or
replacing the statute to which reference is made and all regulations promulgated pursuant to such
- statutes; (d) references to "writing" include printing, photocopy, typing, lithography and other
means of reproducing words in a tangible visible form; (e) the words "including," "includes"
and "include" shall he deemed to be followed by the words "without limitation"; (f) references
to the introductory paragraph, preliminary statements, articles, sections (or subdivisions of
sections), exhibits, appendices, annexes or schedules are to -those of this Indenture unless
. otherwise indicated; (g) references to agreements and other contractual instruments shall be • -
deemed to include all subsequent amendments and other modifications to such instruments, but
only to the extent that such amendments and other modifications are permitted or not prohibited
by the terms of this Indenture; (h) references to Persons include their respective successors and
assigns.permitted or not prohibited by the terms of this Indenture; (i) an accounting term not
- otherwise defined has the meaning assigned to it in accordance with generally accepted
accounting principles; (j) "or" is not exclusive; (k) provisions apply to successive events and
transactions; (1) references to documents or agreements which have been termianted or released
or which have expired shall he of no force and effect after such termination, release or
expiration; (in) references to mail shall be deemed to refer to first-class mail, postage prepaid,
unless another type of mail is specified; (n) all references to time shall be to New York City
time; (o) references to specific persons, positions or officers shall include those who or which
succeed to or perform their respective functions, duties or responsibilities referred to in the Bond
proceedings and (p) the terms "herein," "hereunder," "hereby," "hereto," "hereof" and any
similar terms refer to this Indenture as a whole and not to any particular article, section or
subdivision hereof; and the term "heretofore" means before the date of execution of this
Indenutre, the term "now" means at the date of execution of this Indenture, and the term
"hereafter" means after the date of execution of this Indenture.
Section 103. Miscellaneous Rules. (a) Counsel Options. Any opinion of Counsel may
be qualified by reference to the constitutional powers of the United States of America and the
State, the police and sovereign powers of the State,judicial discretion, equitable principles, and
bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors' rights
and similar matters.
(b) Consolidated Certiticationspinions and instruments. In any case where several
matters are required to be certified by, or covered by an opinion of, any specified person, it
shall not be necessary that all such matters be certified by, or covered by the opinion of, only
one such person, or that they be so certified or covered by only one document, but one such
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person may certify or give an opinion with respect to some matters and one or more other such
persons as to other matters, and any such person may certify or give an opinion as to such
matters in one or several documents. When any person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions or other instruments
under this Indenture, such instruments may, but need not, be consolidated and form one •
instrument.
[End of Article Ij
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ARTICLE II
THE BONDS
Section 201. Authorized Amount of Bonds; Details of Bonds. Bonds may not be issued
under this Indenture except in accordance with this Article. The Bonds initially issued hereunder
in the aggregate principal amount of$4„340,000 shall consist of bonds designated "City of South
Bend Health Care Facilities Revenue Refunding Bonds Fountainview Place of South Bend Issue
(FHA Insured Project) Series 1992 A.” The Bonds shall provide that the principal of, premium,
if any, and interest on the Bonds shall be payable only out of the Trust Estate and that there
• shall be no other recourse against the Issuer or any property now or hereafter owned by it.
The Bonds shall be dated November 1, 1992, and shall be issuable in fully registered
form without coupons in denominations of$5,000 or any integral multiple thereof. The Bonds
shall bear interest, computed on the basis of a 360-day year of twelve 30-day months and
payable semiannually on each Payment Date until the principal sum is paid or duly provided for,
at the rates per annum, and shall mature on dates and in amounts as follows:
Maturity Principal Interest
Date Amount Rate
February 1, 2012 10.5%
August 1, 2012 10.5%
•
The Person in whose name any Bond is registered on the Regular Record Date with
respect to a Payment Date shall be entitled to receive the interest payable on such Payment Date
(unless such Bond has been called for redemption on a redemption date which is prior to such
Payment Date) notwithstanding the cancellation of such Bond upon any registration of transfer
or exchange thereof subsequent to such Regular Record Date and prior to such Payment Date;
provided, however, that, if and to the extent the Issuer shall default in the payment of the
interest due on any Payment Date, such defaulted interest shall be paid as provided in the next
paragraph.
Any interest on any Bond that is payable, but is not punctually paid or duly provided for,
on any Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to
the Bondholder on the relevant Regular Record Date by virtue of having been such Bondholder.
The Trustee may elect to make payment of any Defaulted Interest to the Persons in whose names
the Bonds (or their respective predecessor Bonds) are registered at the close of business on a
special record date for the payment of such Defaulted Interest (a "Special Record Date"), which
shall be fixed in the following manner. The Trustee shall determine the amount of Defaulted
Interest proposed to be paid on each Bond and the date of the proposed payment, shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than
3132.1 13
(6) Certified copies of the Regulatory Agreement, Servicing Agreement and
FHA insurance;
(7) [Copies of the executed Tender Option Documents]; and
(8) Such other documents, certificates and opinions of counsel as the Issuer
and Bond Counsel have advised the Trustee that they have reasonably requested.
Section 203. Execution. The Bonds shall be executed on behalf of the Issuer by the
manual or facsimile signature of the [President]of the Issuer Council of the Issuer, attested by
the manual or facsimile signature of the [Clerk-Treasurer or Assistant Clerk-Treasurer] of the
Issuer under the corporate seal, or facsimile thereof, of the Issuer. Any facsimile signatures
shall have the same force and effect as if said officers had manually signed the Bonds. Any
reproduction of the official seal of the Issuer on the Bonds shall have the same force and effect
as if the official seal of the Issuer had been impressed on the Bonds.
In case any officer whose signature or facsimile of whose signature shall appear on any
Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all purposes as if he had remained in
office until delivery.
Section 204. Authentication. Only such Bonds as shall have endorsed thereon a
certificate of authentication substantially in the form set forth in Exhibit A hereto, as applicable,
duly executed by the Trustee shall be entitled to any right or benefit under this Indenture. No
Bond shall be valid or obligatory for any purpose unless and until such certificate of
authentication shall have been duly executed by the Trustee, and such executed certificate 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 representative of the Trustee, but it shall
not be necessary that the same person sign the certificate of authentication on all the Bonds.
Section 205. 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 and
deliver a new Bond in lieu of such mutilated, lost, stolen or destroyed Bond, of like maturity
and denomination as that mutilated, lost, stolen or destroyed. Any mutilated Bond shall first be
surrendered to the Issuer, and in the case of any lost, stolen or destroyed Bond, there shall first
be furnished to the Trustee by the person in whose name the Bond is registered evidence of such
loss, theft or destruction satisfactory to it together with indemnity satisfactory to it. In the event
any such Bond shall have matured, instead of issuing a duplicate Bond, upon the furnishing of
evidence of such loss, theft or destruction together with indemnity satisfactory to it, by the
person in whose name such Bond is registered, the Trustee may pay the same without surrender
3152.1 14
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thereof. The Trustee may charge the holder or owner of such Bond with its reasonable fees and
expenses in connection with such replacement.
Section 206. Transfer of Registration and Exchange of Bonds; Persons Treated as
Owners. The Trustee is hereby appointed Bond Registrar and shall cause a register (herein
sometimes referred to as the "Bond Register") to be kept for the registration of Bonds and the
registration of transfers of Bonds. The registration of any Bond may be transferred only upon
an assignment duly executed by the registered holder or his duly authorized representative in
such form as shall be satisfactory to the Trustee, and upon surrender of such Bond to the Trustee
for cancellation. Whenever any Bond or Bonds shall be surrendered for registration of transfer,
the Issuer shall execute and the Trustee shall authenticate and deliver to the transferee a new
Bond or Bonds of like_maturity of authorized denomination or denominations and for the
aggregate principal amount of such Bond or Bonds so surrendered.
In the case of the transfer of any Bond pursuant to the preceding paragraph, any Bond
may be exchanged at the office of the Trustee, for a new Bond or Bonds, of any authorized
denomination or denominations and for the aggregate principal amount of such Bond then
remaining Outstanding.
In all cases in which the registration of Bonds shall be transferred and Bonds shall be
exchanged hereunder, the Trustee may make a charge sufficient to reimburse it for any tax, fee
or other governmental charge required to be paid with respect to such transfer or exchange. The
Trustee shall not be required to transfer any Bond after the mailing of notice calling such Bond
for redemption has been made.
The Person in whose name any Bond shall be registered shall be deemed and regarded
as the absolute owner thereof for all purposes and payment of or on account of the principal of
and interest on, and premium, if any, on any such Bond shall be made only to or upon the order
of such person thereof, or his legal representative, and neither the Issuer nor the Trustee shall
be affected by any notice to the contrary. 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 to be paid.
Section 207. Temporary Bonds. Until definitive Bonds are ready for delivery, there may
be executed, and upon the written request of the Issuer, the Trustee shall authenticate and
deliver, in lieu of definitive Bonds, one or more temporary typewritten, printed, engraved or
lithographed Bonds, in any appropriate denomination, in fully registered form, and of
substantially the tenor hereinabove set forth and with such appropriate omissions, insertions and
variations as may be required.
If temporary Bonds shall be issued, the Issuer shall cause the definitive Bonds to be
prepared and to be executed and delivered to the Trustee, and the Trustee, upon presentation to
it at its principal corporate trust office of any temporary Bond, shall cancel the same and
3152.1 15
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authenticate and deliver in exchange therefor, without charge to the owner thereof, a definitive
Bond or Bonds of an equal aggregate principal amount of the same maturity and bearing interest
at the same rate as the temporary Bond surrendered. Until so exchanged, the temporary Bonds
shall in all respects be entitled to the same benefit and security of this Indenture as the definitive
Bonds to be issued and authenticated hereunder. Interest on temporary Bonds, when due and
payable, if the definitive Bond shall not be ready for exchange, shall be paid on presentation of
such temporary Bonds for notation of such payment thereon by the Trustee.
Section 208. Book-Entry System. The Bonds shall be initially issued in Book-Entry
Form by using and delivering to the Depository one typed Bond for each stated maturity of the
Bonds, registered to Cede & Co., and entering into the Letter of Representations. While the
Bonds remain issued in Book-Entry Form, the provisions of this Indenture which conflict with.
the operation of the Book-Entry System shall not apply, and the provisions of the Letter of
Representation relating to such Book-Entry System and the following provisions shall prevail.
(a) Registration. Recording and Transfer of Ownership. The Depository (or its
nominees) shall be and remain recorded on the Bond Register as the Holder of all Bonds which
are in Book-Entry Form. No transfer of any Bond in Book-Entry Form shall be made, except
from one Depository to another (or its nominee) or except to terminate the Book-Entry Form.
All Bonds of each stated maturity in Book-Entry Form shall be issued and remain in a single
Bond certificate registered in the name of the.Depository (or its nominee); provided, however,
that upon termination of the Book-Entry Form pursuant to the Letter of Representations or as
otherwise directed by written notice of the Developer to the Issuer, the Trustee and Depository,
the Issuer shall, upon delivery of all Bonds from the Depository, promptly execute, and the
Trustee shall thereupon authenticate and deliver, Bonds to all persons who were Beneficial
Owners thereof immediately prior to such termination, and the Trustee. shall register such
Beneficial Owners as Holders of the applicable Bonds. The Trustee, as bond registrar and
paying agent, shall maintain accurate books and records of the principal balance, if any, of each
such Outstanding Bond in Book-Entry Form, which shall be conclusive for all purposes
whatsoever. Upon the authentication of any new Bond in Book-Entry Form in exchange for a
previous Bond, the Trustee shall designate thereon the principal balance remaining on such Bond
according to the Trustee's books and records.
(b) Notices. The Issuer and Trustee shall each give notices to the Depository of such
matters and at such times as are required by the Letter of Representations. All notices of any
nature required or permitted hereunder to be delivered to a Holder of a Bond in Book-Entry
Form shall be transmitted to Beneficial Owners of such Bonds at such times and in such manner
as shall be determined by the Depository and the Participants in accordance with the Book-Entry
System and Letter of Representations.
(c) Payments. All payments of principal of and interest on Bonds while in
Book-Entry Form shall be paid to the Depository in accordance with the Book-Entry System and
3152.1 16
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Letter of Representations in same-day funds by wire transfer. All payments of principal of and
interest on any Bonds in Book-Entry Form due Beneficial Owners shall be made at such times
and in such manner as shall be determined by the Depository and the Participants in accordance
with the Book-Entry System and Letter of Representations.
(d) Limitations on Liability. With respect to Bonds in Book-Entry Form, and any
Beneficial Owners thereof, except as expressly provided to the contrary herein, the Issuer, the
Developer and the Trustee shall have no responsibility, liability or obligation of any nature
whatsoever with respect to (i) the nonpayment to any Beneficial Owner or any other person,
other than the Depository, of any amount due for principal or interest; (ii) the failure to give any
notice or other information to the applicable Beneficial Owner; (iii) the inaccuracy of the records
of the Depository or any Participant, or (iv) the failure in any manner of the Depository or any
Participant to timely or properly comply with procedures or requirements of the Book-Entry
System. No such payment, failure or inaccuracy shall cause an Event of Default under this
Indenture or the Loan Agreement.
[End of Article II]
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3152.1 17
[
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds. The Bonds are subject to redemption prior to
maturity as provided below.
(a) Optional Redemption. The Bonds are subject to redemption prior to maturity by the
Issuer, but only upon the request of the Developer, in whole at any time, or in part by lot
thereafter, from optional prepayments of principal on the Mortgage Note made by the Developer
and deposted in the Redemption Fund established under the Trust Indenture, in an aggregate
amount which, together with all such prior redemptions under this paragraph during the then
current calendar year, does not exceed fifteen percent (15%) of the original principal amount
of the Mortgage Note, as initially endorsed by FHA. Any such redemption shall be made at a
redemption price of one hundred percent (100%) of the principal amount thereof, plus interest
accrued to the redemption date.
The Bonds are also subject to redemption prior to maturity by the Issuer, but only upon
the request of the Developer, in whole at any time from optional prepayments of principal on
the Mortgage Note made by the Developer and deposited in the Redemption Fund established
under this Indenture. Any such redemption shall be made at a redemption price (shown below
as a percentage of the principal amount to be redeemed which is in excess of the amounts
redeemed pursuant to the preceding paragraph during the then current calendar year), plus
interest accrued to the redemption date:
Redemption Period Redemption Price
Closing Date to July 31, 1993 102%
August 1, 1993 to July 31, 1994 101-1/2%
August 1, 1994 to July 31, 1995 101%
August 1, 1995 to July 31, 1996 100-1/2%
August 1, 1996 and thereafter 100%
(b) Redemption Provisions. The Bonds are subject to special mandatory redemption
prior to their respective stated maturities upon payment of the applicable redemption price,
without premium, by such maturity or maturities as are determined in accordance with
Section 4.03 (1) as a whole, or in part (and if in part, the Bonds maturing February 1, 2011
shall be redeemed first, until all such Bonds have been redeemed, and then the Bonds maturing
August 1, 2011 shall be redeemed, and by lot within a maturity in integral multiples of$5,000
on the first day of any month for which notice of redemption may be timely given, from moneys
transferred from the Bond Fund to the Redemption Fund, and (2) as a whole on any interest
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ARTICLE 11I
REDEMPTION OF BONDS
Section 301. Redemption of Bonds. The Bonds are subject to redemption prior to
maturity as provided below.
(a) Optional Redemption: The Bonds are subject to redemption prior to maturity by the
Issuer, but only upon the request of the Developer, in whole at any time, or in part by lot
• thereafter, from optional prepayments of principal on the Mortgage Note made by the Developer
and deposted in the Redemption Fund established under the Trust Indenture, in an aggregate
amount which, together with all such prior redemptions under this paragraph during the then
current calendar year, does not exceed 15% of the original principal amount of the Mortgage
Note, as initially endorsed by FHA. Any such redemption shall be made at a redemption price
of 100% of the principal amount thereof, plus interest accrued to the redemption date.
The Bonds are also subject to redemption prior to maturity by the Issuer, but only upon
the request of the Developer, in whole at any time from optional prepayments of principal on
the Mortgage Note made by the Developer and deposited in the Redemption Fund established
under this Indenture, or from the proceeds of refunding bonds. Any such redemption shall be
made at a redemption price (shown below as a percentage of the principal amount to be
redeemed which is in excess of the amounts redeemed pursuant to the preceding paragraph
during the then current calendar year), plus interest accrued to the redemption date:
Redemption Period Redemption Price
Closing Date to July 31, 1993 102%
August 1, 1993 to July 31, 1994 101-1/2%
August 1, 1994 to July 31, 1995 101 %
August 1, 1995 to July 31, 1996 100-.112%
August 1, 1996 and thereafter 100%
(b) Mandatory Special Redemption Provisions. The Bonds are subject to special
mandatory redemption prior to their respective stated maturities upon payment of the applicable
redemption price, without premium, by such maturity or*maturities as are determined in
accordance with Section 308 (1) as a whole, or in part (and if in part, the Bonds maturing
February 1, 2011 shall be redeemed first, until all such Bonds have been redeemed, and then
the Bonds maturing August 1, 2011 shall be redeemed until all such Bonds have been redeemed,
and by lot within a maturity in integral multiples of $5,000 on the first day of any month for
which notice of redemption may be timely given, from moneys transferred from the Bond Fund
to the Redemption Fund, and (2) as a whole on any Payment Date for which notice of
3152.1 19 -
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redemption may be timely given, if the sum of the amount of moneys held in the Bond Fund and
Redemption Fund equals or exceeds the redemption price of Outstanding Bonds plus Qualified
Expenses then due and payable, from any amounts held in such funds.
(c) Casualty and Condemnation Redemption. The Bonds are also subject to
redemption in whole or in part on the earliest practicable date for which proper notice of
redemption can be given at a redemption price of 100% of the principal amount, plus accrued
interest to the date fixed for redemption to the extent the proceeds of any condemnation award
or insurance recovery are applied to the prepayment of the Note (along with a proportionate
reduction of the Debt Service Reserve Fund as described in Section 302). .
(d) Extraordinary Redemption From FHA Mortgage In3urance Benefits in Cash. To
the extent that FHA Mortgage Insurance benefits are paid to the Trustee in cash, the Trustee
shall redeem the Bonds, in whole or in part, on the earliest practicable date for which proper
notice of redemption can be given at a redemption price of 100% of the principal amount, plus
accrued interest to the date fixed for redemption.
. (e) Redemption After Receipt of FHA Mortgage Insurance Benefits in Debentures.
If FHA Mortgage Insurance benefits are paid to the Trustee in FHA debentures and such FHA
debentures can be sold or tendered to HUD at a price sufficient to redeem the Bonds, the
Trustee shall redeem Bonds therefrom on the earliest practicable date for which proper notice
of redemption can be given at a redemption price of 100% of the principal amount, plus accrued
interest to the date fixed for redemption.
(0 Redemption in the Event of Lotion Default or Bankruptcy. The Bonds shall be
called for redemption in whole or in part without notice at a redemption price of 100% of the
principal amount, plus accrued interest to the date of redemption in the event that prepayment
of the Note is required to be made (i) by FHA following a default under the Loan in order to
avoid an FHA Mortgage Insurance claim or (ii) without notice while under the supervision of
a trustee in bankruptcy proceedings (along with a proportionate reduction of the Debt Service
Reserve Fund as described in Section 303).
Section 302. Reduction in Debt Service Reserve F md. If a redemption of Bonds occurs
as a result of a reduction in the principal balance of the Loan (other than pursuant to a
redemption under Section 301(b) hereof), the Trustee shall transfer from the Debt Service
Reserve Fund to the Bond Fund any amount by which the balance maintained following such
redemption in the Debt Service Reserve Fund exceeds the Debt Service Reserve Fund
Requirement; provided, however, that if the Loan is in default, such redemption will not occur
until full FHA Mortgage Insurance proceeds have been received by the Trustee. The Trustee
will then redeem Bonds in an amount equal, as nearly as practicable, to the amount of the funds
transferred to the Bond Fund.
3152.1 20
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Section 303. Partial Redemption. (a) If a redemption occurs of less than all the
Outstanding Bonds of a particular maturity pursuant. to Section 301 above, the particular Bonds
to be redeemed within each maturity shall be selected by the Trustee by lot subject to the
provisions of paragraph (b) below.
(b) If a redemption of less than all the Outstanding Bonds pursuant to the provisions
of Section 301(a), (c), (d), (e) or (t) hereof occurs, the Trustee shall redeem a principal amount
of Bonds of each maturity (and shall reduce the scheduled mandatory redemptions provided in
Section 301(b)hereof) so that the reduction in Debt Service on the Bonds during each six-month
period ending on a Payment Date is reasonably proportionate to the decrease in scheduled
payments on the Loan in such period.
. (c) Notwithstanding the foregoing provisions of this Section 303, the Bonds shall be
redeemed only in a principal amount of $5,000 or an integral multiple thereof.
(d) Upon surrender of any Bond redeemed in part only, the Issuer shall execute and
the Trustee shall authenticate and deliver to the holder thereof, without expense to such holder,
a new Bond or Bonds of the same maturity and series and of authorized denominations equal in
aggregate principal amount to the unredeemed portion of the Bond surrendered. The Trustee
may employ such experts as it may deem necessary to advise it as to the manner of carrying out
such redemption and is entitled to rely on such advice.
Section 304. Selection of Bonds for Redemption. For purposes of selecting Bonds for
redemption, Bonds shall be deemed to be composed of $5,000 portions and any such portion
may be separately redeemed. The Trustee shall promptly notify the Issuer in writing of the
Bonds or portions thereof selected for redemption: With respect to redemptions pursuant to
Section 4.02(A) and (B) above, it less than all the Bonds are to be redeemed, the Bonds so to
be redeemed shall be selected so that the Bonds maturing on February 1, 2012 shall first be
redeemed until all such Bonds have been redeemed and then the Bonds maturing on August 1,
2012 shall be redeemed. All Bonds to be redeemed shall be selected by lot within a maturity
in such manner as the Trustee may determine. The Trustee's selection of Bonds for redemption
shall be final and conclusive.
Section 305. Notice of Redemption. Except as provided below, notice of redemption
shall be given not less than 30 nor more than 45 days prior to the date fixed for redemption by
first-class mail, postage prepaid, to the registered owner of each Bond to be redeemed, at the
address of such registered owner shown on the Bond Register, and a second notice of
redemption shall be sent by certified mail, return receipt requested, at such address to the holder
of any Bond who has not submitted his Bond to the Trustee for payment on or before the date
60 days following the date fixed for redemption of such Bond in each case stating: (i) the
complete official caption of the issue of which the Bonds being redeemed are a part; (ii) the date
of mailing of the notice of redemption; (iii) the date fixed for redemption; (iv) the redemption
•
3152.1 7l
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price or prices; (v) the numbers of the Bonds to be redeemed, by giving the individual certificate
number of each Bond to be redeemed (or stating that all Bonds between two stated certificate
numbers, both inclusive, are to be redeemed or that all of the Bonds of one or more maturities
have been called for redemption); (vi) the CUSIP numbers of all Bonds being redeeied; (vii) in
the case of a partial redemption of Bonds, the principal amount of each Bond being redeemed; •
(viii) the date of issue of the Bonds as originally issued; (ix) the rate or rates of interest borne
by each Bond being redeemed; (x) the maturity date of each Bond being redeemed; (xi) the place
or places where amounts due upon such redemption will be payable; (xii) the notice shall be void
and of no effect in the event that the Trustee does not have sufficient Money to pay the •
redemption price of the Bonds on the redemption date; and (xiii) the name, address, telephone
. number and contact person at the office of the Trustee with respect to such redemption. The
. notice shall require that such Bonds be surrendered at the principal corporate trust office of the
Trustee for redemption at the redemption price and shall state that further interest on such Bonds
will not accrue from and after the redemption date. CUSIP number identification with .
appropriate dollar amounts for such CUSIP number also shall accompany all redemption
payments, provided that no such notice of redemption shall be sent unless the Trustee has in
its possession funds sufficient to pay the redemption price of the Bonds to be redeemed and that
neither failure to receive such notice no any defect in any notice so mailed shall affect the
sufficiency of the proceedings for the redemption of such Bonds.
Notice of such redemption also shall be sent by certified mail, return receipt requested,
overnight delivery service or other secure means, postage prepaid, to any holder of$1,000,000
or more in aggregate principal amount of ponds to be redeemed, to certain municipal registered
Securities Depositories (described below) which are known to the Trustee to be holding Bonds
and to at least two of the national Information Services (described below) that disseminate
securities redemption notices, when possible, at least five days prior to the mailing of notices
required by the first paragraph above, but in any event at least 30 days, but not more than
45 days, prior to the redemption date, provided that neither failure to receive such notice nor
any defect in any notice so mailed shall affect the sufficiency of the proceedings for the
redemption of such Bonds or give rise to any liability of the Trustee to the Developer, the Issuer
or any holder of any of the Bonds.
Notwithstanding the foregoing or any other provision of this Indenture, in the event of
a redemption by reason of the Trustee receiving payments on the Loan made by the Developer
without notice or prepayment penalty while under the supervision of a trustee in bankruptcy,
prior notice of redemption of bonds shall not be required if the circumstances do not permit the
Trustee to give such notice in accordance with the preceding paragraphs.
Securities Depositories include The Depository Trust Company, 711 Stewart Avenue,
Garden City, New York 1 1530, Fax: (516) 227-4039 or 4I90; Midwest Securities Trust
Company, Capital Structures-Call Notification, 440 South LaSalle Street, Chicago, Illinois
60605, Fax: (312) 663-2343; Pacific Securities Depository Trust Company, Pacific and
3152.1 '32
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•
Company, Post Office Box 7041, San Francisco, California 94120, Fax: (415) 393-4128;
Philadelphia Depository Trust Company, Reorganization Division, 1900 Market Street,
Philadelphia, Pennsylvania 19103, Attention: Bond Department, Fax: (215) 496-5058; any such
other securities depositories as the Issuer may designate in writing to the Trustee.
Information Services include Financial Information, Inc., "Daily Called Bond Service,"
10th Floor, 30 Montgomery Street, Jersey City, New Jersey 07302, Attention: Editor; Kenny
Information Services, "Called Bond Service." 28th Floor, 55 Broad Street, New York,
New York 10004; Moody's Investors Service "Municipal and Government," 8th Floor,
99 Church Street, New York, New York 10007, Attention: Municipal News Reports; and
Standard and Poor's Corporation "Called Bond Record," 25 Broadway, New York, New York
10004; or any other such services as the Issuer may designate in writing to the Trustee.
Failure to give notice by mailing to the holder of any Bond designated for redemption
or any defect in such notice shall not affect the validity of the proceedings for the redemption
of any other Bond.
Section 306. Cancellation. All Bonds that have been surrendered for payment or
redemption, any Bonds purchased from any fund established under this Indenture, shall be
cancelled and destroyed by the Trustee and shall not be reissued. A counterpart of the certificate
of destruction evidencing such destruction shall be furnished by the Trustee to the Issuer.
Section 307. Payment Upon Redemption. Prior to each redemption date, the Trustee
shall make provisions for the payment of Bonds to be redeemed on such date by setting aside
and holding in trust an amount from the Bond Fund or otherwise received by the Trustee. Upon
presentation and surrender of any such Bond at the principal corporate trust office of the Trustee
on or after the date fixed for redemption, the Trustee shall pay the principal of and premium,
if any, on such Bond as of the applicable Regular Record Date; otherwise, interest shall be
payable to the owner thereof as of the date nixed for redemption.
Section 308. Effect of Redemption. Notice of redemption having been given as provided
in Section 304 hereof, the Bonds or portions thereof designated for redemption shall become due
and payable on the date fixed for redemption and, unless the Issuer defaults in the payment of
the principal thereof and premium, if any, thereon, or the accrued interest due with respect
thereto, such Bond or portions thereof shall cease to bear interest from and after the date fixed
for redemption whether or not such Bonds are presented and surrendered for payment on such
date. If any Bond or portion thereof called for redemption is not so paid upon presentation and
surrender thereof for redemption, such Bond or portion thereof shall continue to bear interest
at the rate set forth thereon until paid or until due provision is made for the payment of same.
[End of Article III]
3162.1 23
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ARTICLE IV
FUNDS; INVESTMENTS
Section 401. Pledge and Assignment. Subject only to the provisions of this Indenture
permitting the application thereof for or to the purposes and on the terms and conditions set forth
herein, there are hereby pledged to secure the payment of the principal of,premium, if any, and
interest on the Bonds in accordance with their terms and the provisions of this Indenture, all Net
Revenues, and any other amounts held in any fund or account established pursuant to this
Indenture and all of the right, title and interest of the Issuer in each FHA debenture. Said
pledge shall constitute a lien on and security interest in such assets and shall attach, be perfected
and be valid and binding from and after delivery by the Trustee of the Bonds, without any
physical delivery thereof or further act.
Section 402. Application of Bond Proceeds. From the proceeds of the Bonds, the
Trustee shall deposit $[Amount] to the Bond Fund to pay the accrued interest on the Bonds and
$[ ] to an escrow fund. Moneys held by the Trustee in the escrow fund shall be
transferred to the trustee for the 1982 Bonds to pay the outstanding principal of, premium, if
any, and accrued interest, if any, on the 1982 Bonds on [ ], 1993.
Section 403. Establishment of Funds, The following funds and accounts shall be
established and maintained by the Trustee under this Indenture in trust for the benefit of the
Owners of the Bonds (except that the Rebate Fund shall be in trust for the benefit of the United
States of America):
(a) the Bond Fund;
(b) the Expense Fund;
(c) the Debt Service Reserve Fund;
(d) the Redemption Fund; and
(e) the Rebate Fund.
Except as provided in Section 401 and except for prepayments of the Mortgage Note which shall
be deposited in the Redemption Fund, all Net Revenues as received from the Mortgage Servicer
shall be promptly deposited by the Trustee in the Bond Fund. All moneys at any time deposited
into the Bond Fund shall be held by the Trustee in trust for the benefit of the Owners at any
time of the Bonds, and the Issuer shall have no beneficial right or interest in any of such
moneys, except as provided in this Indenture.
•
3152.1 24
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Section 404. Application of Net Revenues. Upon receipt by the Trustee, all
prepayments of the Mortgage Note shall be deposited to the Redemption Fund and used in
accordance with Section 410 hereof and all other Net Revenues shall be distributed in the
following order of priority:
(1) Into the Bond Fund to pay Debt Service on the Bonds in accordance with
Section 406;
(2) Into the Expense Fund, the amount, if any, needed to pay Qualified
Expenses;
(3) Into the Debt Service Reserve Fund, an amount required to maintain the
Debt Service Reserve Fund Requirement; and
(4)• Commencing January 1, 1993, into the Redemption Fund, the balance, if
any, in excess of the next principal and interest payment due on the Bonds.
• Section 405. Application of Expense Fund. Subject to Sections 404, 407 and 410, all •
amounts in the Expense Fund shall be used and withdrawn by the Trustee solely for the purpose
of paying Qualified Expenses.
Section 406. Bond Fund. (a) The Trustee shall deposit into the Bond Fund the amounts
required by Sections 404, 407 and 408, and any other amounts received by the Trustee that are
subject to the lien and•pledge of the Indenture and not otherwise deposited. w • -
(b) _ Subject to Section 410, all amounts in the Bond Fund shall be used and withdrawn
by the Trustee solely for the purpose of paying interest on the Bonds as it shall become due and
- payable (including accrued interest on any Bonds purchased or redeemed prior to maturity
pursuant to this Indenture), and paying the principal of the Bonds when due and payable.
(c) The Trustee shall apply any money credited to the Bond Fund that has been set
aside for scheduled mandatory redemption to the purchase of the Bonds scheduled to be
redeemed in the manner provided in this Section; provided that no Bonds shall be purchased
during the period of 30 days next preceding the date of a scheduled mandatory redemption
established for the Bonds or after notice of such redemption shall have been given. The
purchase price paid by the Trustee (calculated excluding accrued interest but including any
brokerage and other charges) for any Bond purchased pursuant to this Section shall not exceed
the redemption price of such Bond applicable upon its redemption through application of the
money available for such purchase on the next date on which such Bond could be redeemed in
accordance with its terms by operation of the scheduled mandatory redemption provisions.
Subject to the limitations hereinbefore set forth or referred to in this Section, the Trustee shall
purchase Bonds at such times, for such prices, in such amounts and in such manner (whether
3152.1 25
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after solicitation for tenders or otherwise) as the Trustee in its discretion may determine and as - .
• shall not exceed the principal amount of Bonds subject to scheduled mandatory redemption on -
the next Payment Date. All Bonds so purchased by the Trustee shall be cancelled as provided
in Section 305. Not less than 30 nor more than 45 days before the date of each scheduled
mandatory redemption, the Trustee shall call for redemption Bonds in an aggregate principal
• amount equal to such scheduled mandatory redemption, reduced by the principal amount of
Bonds purchased pursuant to the foregoing provisions of this paragraph, and on the date such
scheduled mandatory redemption is due the Trustee shall apply the money set aside therefor in
the Bond Fund to the payment of the redemption price of the Bonds so called for redemption.] .
(d) Unless the Mortgage Note and Mortgage have been assigned to FHA pursuant to
Section 606 hereof, all income from the investment of moneys in the Bond Fund shall be
retained in the Bond Fund.
(e) In accordance with Section 407 hereof, if the amount in the Bond Fund is
insufficient to pay principal of or interest on the Bonds when dtie, the Trustee shall-transfer from
the Bond Fund to the Debt Service Reserve Fund the amount of such deficiency.
Section 4.07. Debt Service Reserve Fund. On the Closing Date, the Issuer shall deposit
with the Trustee an amount equal to $400,000 which the Trustee shall deposit into the Debt
Service Reserve Fund. Amounts shall be maintained within the Debt Service Reserve Fund at
all times equal to or. not less than the Debt Service Reserve Fund Requirement, subject to the
provisions of Section 406. The Trustee shall transfer amounts in the Debt Service Reserve Fund
to the Bond Fund to pay the principal of and interest on the Bonds only after written notice of
default under the Mortgage Note has been given to HUD pursuant to Section 606(b) hereof.
In connection with any proposed partial redemption of Bonds (other than a redemption
pursuant to Section 301(b)), the Trustee shall compute the reduction in the Debt Service Reserve
Fund Requirement which will result from such redemption and transfer any amount on deposit
in the Debt Service Reserve Fund which will exceed the Debt Service. Reserve Fund
• Requirement following such redemption to the Bond Fund to be used in connection with such
redemption; provided, however, that if the Loan is in default, such redemption pursuant to
Section 301(d) will not occur until full FHA Mortgage insurance proceeds have been received.
The Trustee shall deposit all investment earnings received from the investment of the
Debt Service Reserve Fund in the Bond Fund.
Section 408. Investment of Moneys in Funds. All moneys in any of the funds and
accounts established under this Indenture shall be invested by the Trustee in Investments •
pursuant to written direction of the Developer. If no written direction of the Developer is
received in a timely manner, such moneys shall be invested in Investment Securities described
in Clause 5 of the definition thereof.. All Investment Securities shall be acquired subject to the
3152.1 26
•
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F . t
limitations set forth in [the Tax Regulatory Agreement], to the limitations as to maturities
hereinafter in this Section set forth and to such additional limitations or requirements consistent
with the foregoing as may be established by written direction of the Developer. No Investment
- Security which is subject to redemption at the option of the Issuer may be purchased at a
premium above the amount of the premium payable upon any such redemption. To the extent
the Investment Agreement is not in effect or does not meet the requirements of Clause 4 of the
definition of Investment Securities, or if moneys available for investment are below the minimum
permitted to be invested under the Investment Agreement, then the Trustee may use investments
set-forth in Clause 5, provided that such investments shall not be in excess of the yield on the
Bonds as set forth in the Tax Regulatory Agreement. If the Investment Agreement is not in
effect, the Trustee shall immediately notify the Rating Agency of its termination,
Moneys in all funds-and accounts established under this Indenture shall be invested in the
Investment Agreement or in Investment Securities paying interest and maturing not later than
the dates on which it is estimated that such moneys will be required by the Trustee. Investments
in all funds and accounts may be commingled for purposes of making investments, and all gains
or losses shall be allocated pro rata. Moneys in all funds and accounts shall be invested under
the-Investment Agreement so long as the Investment Agreement is in effect. Any moneys in the .
funds and accounts established under this Indenture which are not the subject of the Investment
Agreement shall be invested in Investment Securities maturing on a date which is the earlier of
90 days from the date such investment is made or the date such funds are needed.
All interest and other profit derived from such investments (other than with respect to
moneys on deposit in the Rebate Fund or in the Expense Fund, in each case earnings and profits
shall be retained within the funds from which they arose) shall be deposited when received in
the Bond Fund. Investment Securities acquired as an investment of moneys in any fund or
account established under this Indenture shall be credited to such fund or account.
Section 409. Transfer of Moneys to Redemption Fund. Whenever amounts held in the
Bond Fund, the Expense Fund and the Redemption Fund are sufficient to redeem, pursuant to
Section 307 hereof, all Outstanding Bonds on the next date for which notice of redemption may
be given pursuant to Section 304 and to pay all Qualified Expenses, all such amounts, net of -
Qualified Expenses, shall be transferred to the Redemption Fund and all such Investment
Securities shall be liquidated to the extent necessary to provide moneys sufficient for such
redemption.
Section 410. Rebate Fund. The Rebate Fund shall be administered by the Trustee in
accordance with the provisions of this Section 4.10 and the Investment Instructions.
•
The Trustee shall engage for the account and at the expense of the Developer a
professional to make the calculation(s) required by the Investment Instructions on each
Computation Date (as defined in the Investment Instructions). The Trustee is required to make
•
3152.1 ?7
4.,
• SENT BY:KUTAKROCK ;11— 4-92 ; 2:31PM ; 20222304917 12192371125#42
deposits and disbursements from the Rebate Fund in accordance with the Investment Instructions
and to invest the Rebate Fund pursuant to said Investment Instructions and deposit income from
such'investments immediately upon receipt thereof in the Rebate Fund.
The Investment Instructions shall be amended from time to time to accord with any
regulations promulgated under or any amendment to Section 148(f) of the Code that affects the
method of calculation of any rebate required-to be paid to the United States, with the written
approval of Bond Counsel. If such regulations under or amendments to Section 148(f) of the
Code operate to void the rebate requirements contained therein, any and all provisions of this
Indenture and the Investment Instructions requiring amounts to be rebated to the United States
shall cease to apply; provided, however, there is first delivered to the Trustee a written direction
from the Issuer and an opinion of Bond Counsel to the effect that the discontinuance of the
rebate payment by the Trustee on behalf of the Issuer to the United States will not adversely
affect the exclusion of interest on the Bonds from gross income for federal income tax purposes.
The Trustee may, but shall not be obligated to, advance funds to pay for-the calculations •
required hereinabove, The Trustee shall have no responsibility for the accuracy or completeness
of such calculations or for any matter relating to arbitrage rebate other than selection, in good
faith, of a certified CPA or other professional and the Trustee's duty to follow the Investment -
Instructions.
•Section 411. Nonpresentment of Bonds. In the event any Bonds shall not be presented
for payment when the principal thereof becomes due, either at maturity or at the date fixed for
redemption thereof or otherwise, if funds sufficient to pay such Bonds shall have been made
available to the Trustee for the benefit of the holder thereof and shall have remained unclaimed
for five years after such principal or interest has become due and payable, to the extent
permitted by law and subject to receipt of indemnification satisfactory to the Trustee, such funds
shall be paid to the Developer; and all liability of the Issuer and the Trustee to the holder thereof
for the payment of such Bond shall forthwith cease, determine and be completely discharged;
provided, however, that the Trustee, before being required to make any such payment to the
Developer, shall cause to be published once in a financial newspaper or journal of general
national circulation, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days nor more than 90 days from the date of such
. publication, any unclaimed balance of such money then remaining will be paid to the Developer.
The cost of such publication shall be paid from any funds then on deposit in the Bond Fund in
• excess of the amount needed to pay principal and interest on the Bonds on the next succeeding
Payment Date, and then from the unclaimed funds so held by the Trustee and otherwise by the -
Developer. The obligation of the Trustee under this Section to pay any such funds to the
Developer shall be subject to any provisions of law applicable to the Trustee or to such funds
providing other requirements for-disposition of unclaimed property.
3152.1 28
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Rr
Section 412. Final Balances,. Provided there is no event of default under the Collateral
Agreement and such Collateral Agreement has not otherwise been terminated, upon final -
payment of all principal of, premium, if any, and interest on the Bonds, and upon satisfaction
of all claims against the Issuer and the Trustee hereunder, including the payment of all fees, • -
charges and expenses of the Trustee and the Issuer that are properly due and payable hereunder, •
and any other fees and charges that are properly payable under Section 4.03 hereof, or upon the
making of adequate provision for the payment of such amounts, as permitted hereby, all money
remaining in all funds or accounts under this Indenture (other than the Rebate Fund) shall be •
paid to the Depositor.
Section 413. Procedure When Funds Are Sufficient to Pay All Bonds. (a) If at any time
the amounts held by the Trustee in the funds established under this Article IV are-sufficient to
pay all principal of, redemption premium, if any, and interest on all Bonds then Outstanding on
the next regular payment date thereof, together with any amounts due the Trustee, the Trustee
shall notify the Issuer, the Mortgage Servicer and the Developer to that effect and thereafter the
Trustee shall apply, subject to any applicable FHA requirements, the amounts in such funds first
to the payment or prepayment of such principal and interest, and second, to the payment of any
amounts due to itself, and the Trustee shall credit such payments to prepayment of the.Mortgage
Note and the Mortgage, in accordance with the prepayment provisions of the Mortgage Note and
Mortgage, and the redemption provisions of the Bonds.
. (b) Upon payment of the principal of and interest on all Bonds Outstanding, together
with any amounts clue to the Trustee; the Trustee will cancel the Mortgage Note and deliver the
same to the Developer and -shall execute such instruments and take such other action as the
Developer may request to satisfy and discharge the Mortgage.
(End of Article IV)
3112.1 19
- r
against all actions, proceedings, claims and demands of all Persons, all paid for solely from the
Trust Estate.
Section 505. Priority of Lien: No Modification of Security; No Additional Indebtedness.
The Issuer shall duly observe and comply with all valid requirements of any municipal or
governmental authority relative to any part of the fmancing contemplated hereby, and shall not
create or suffer to be created any lien or charge upon the Trust Estate hereunder prior to or on
a parity with or inferior to the pledge, security interest and lien created hereby for the payment
of the principal of, premium, if any, and interest on the Bonds.
The Issuer shall not, without the prior written consent of the Trustee, alter, modify or
cancel, or agree to consent to alter, modify or cancel any agreement that relates to or affects the
security for the Bonds in accordance with the standards set forth in the Indenture.
Section 506. Reports. The Trustee shall furnish, at a requesting Bondholder's expense,
to any Bondholder who requests copies thereof and furnishes an address to which such reports
and statements are to be sent, copies of (a) any reports furnished to the Trustee with regard to
the Project (including, but not limited to, the most recent annual financial and management
audits with respect to the project and payment status reports with respect to the Note) and (b)
annual statements of the Trustee with regard to fund balances. The Trustee shall also furnish
to any rating agency rating the Bonds notice of any transfer of funds by the Trustee from the
Debt Service Reserve Fund to the Bond Fund as a result of a default on the Loan and such
additional information as is reasonably requested in order to maintain the rating on the Bonds,
and shall provide a copy of such information to any Bondholder who owns $1,000,000 or more
in aggregate principal amount of Bonds and to any other Bondholder who requests such
information.
Section 507. Tax Covenants. The Issuer covenants with the holders of the Bonds that
notwithstanding any other provisions hereof or of any other instrument, and for so long as the
Bonds remain Outstanding, money on deposit in the funds and accounts created hereunder,
whether or not such money was derived from the proceeds of the sale of the Bonds or from any
other source, will not be used in any manner which would cause the Bonds to be "arbitrage
bonds" under Section 148 of the Code and the Regulations thereunder or otherwise cause or
permit the interest on the Bonds to become included in gross income for federal income tax
purposes under the Code, and the Trustee agrees it will invest funds held under the Indenture
in accordance with the terms of this Indenture and the Investment Instructions. This covenant
shall extend, throughout the term of the Bonds, to all funds created hereunder and all money on
deposit to the credit of any such fund.
The Issuer and the Trustee each covenant for the benefit of the holders of the Bonds to
enforce all obligations relating to the tax-exempt status of the Bonds.
3152.1 30
,
Section 508. Application of Proceeds of Insurance. (a) Paragraph 7 of the Mortgage
provides that amounts paid by any insurance company in pursuance of a contract of insurance
shall be paid to the mortgagee under the Mortgage, and, at its option, may be applied to the debt
or released for the repairing or rebuilding of the Project. The Trustee (as mortgagee under the
Mortgage) shall recover and hold all proceeds of hazard insurance payable to the Trustee;
provided that the Developer shall have the sole right to settle any insurance claim. Pending the
application of such insurance proceeds pursuant to paragraph (B) below, such insurance proceeds
shall be held by the Trustee (as mortgagee under the Mortgage) in a separate account (the
"Insurance Account"). No such amounts may be so applied or released without the prior
approval of FHA. In the event of any damage to any property covered by insurance as required
by Section of the Loan Agreement, the Loan Agreement provides that the Developer shall
immediately notify the Trustee and the Mortgage Banker and prepare an estimate of the costs
of repairing or replacing the damaged property and prepare plans and specifications therefor.
If the fire and extended coverage insurance proceeds exceed $50,000, the estimate of costs of
repair or replacement and a copy of any such plans and specifications shall be filed with the
Trustee, the Mortgage Banker and FHA.
(b) If, within ninety (90) days from the occurrence of such damage or destruction,
the Developer and the Trustee agree in writing that the efficient utilization of the Project has not
been impaired to such extent that the ability of the Developer, taking into account all fmancial
resources of the Developer, to make the payments required under the Note, Mortgage and
Regulatory Agreement will have been materially adversely affected prior to the completion of
the replacement or restoration of such part of the Project so damaged or destroyed, the proceeds
of insurance received by reason of such occurrence (after deducting any reasonable expenses
incurred by the Trustee or the Developer in collecting the same) shall, subject to any applicable
FHA requirements, be applied to the repair or replacement of the property damaged or
destroyed, or at the written option of the Developer, shall be credited as a prepayment of the
last installments of principal becoming due under the Note, shall be deposited in the Bond Fund
and applied to the purchase of Bonds. If no such agreement shall be reached within such ninety
(90) day period, all respective insurance proceeds (after such deduction) shall, subject to any
applicable FHA requirements, be credited to prepayment of the last installments of principal
becoming due under the Note and Mortgage.
(c) If the insurance proceeds are to be credited to prepayment of the Note and
Mortgage, such proceeds and any income earned on the investment thereof shall then become
part of the Trust Estate and shall be deposited in the Bond Fund and applied to the Extraordinary
Mandatory Redemption of Bonds.
(d) If the insurance proceeds are to be applied to the repair or replacement of the
property damaged or destroyed, and if such proceeds exceed $50,000, the insurance proceeds
and any income earned in the investment thereof shall be disbursed by the Trustee from the
Insurance Account in accordance with the requisition procedures established under the Servicing
3152.1 31
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Agreement. If such insurance proceeds are $50,000 or less, such proceeds shall, at the request
of the Developer, be paid to or upon the order of the Developer, which shall keep them separate
from all other funds and use them only to pay the costs of repair or replacement of the property
damaged or destroyed. The Loan Agreement provides that the Developer shall commence and
diligently prosecute, or cause to be commenced and diligently prosecuted, the repair or
replacement of the property damaged or destroyed in accordance with any plans and
specifications approved by an independent architect and shall pay any amounts required for the
completion of such repair or replacement if the insurance proceeds (including any income earned
on the investment thereof) are insufficient therefor. If, following the completion of such repair
or replacement, any moneys remain in the Insurance Account, such moneys shall, subject to any
applicable FHA requirements, be paid to the Developer.
Section 509. Mortgage. Security Agreement and Regulatory Agreement Controlling.
Notwithstanding any other provision of this Indenture, the Trustee and the Issuer agree for
themselves, their successors and assigns, that should any conflict arise between this Indenture
and the Mortgage or the Regulatory Agreement, the Mortgage or the Regulatory Agreement, as
the case may be, shall be controlling.
Section 510. Application of Proceeds of Condemnation Compensation. (a) Paragraph
8 of the Mortgage provides that all proceeds of condemnation shall be assigned to the mortgagee
under the Mortgage, to the extent of any indebtedness that remains unpaid. The Trustee (as
mortgagee under the Mortgage) shall recover and hold all such proceeds of condemnation.
Pending the application of such condemnation proceeds pursuant to paragraph (B) below, such
condemnation proceeds shall be held by the Trustee (as mortgagee under the Mortgage) in a
separate account (the "Condemnation Account"). No such amounts may be applied or released
without.the Prior approval of FHA. Upon the institution of any condemnation proceedings with
respect to the Project, or any portion thereof, the Loan Agreement provides that the Developer
shall immediately notify the Trustee and the Mortgage Banker. The Developer shall have the
sole right to settle any condemnation award.
(b) The Trustee as (mortgagee under the Mortgage) shall determined whether to apply
the proceeds of condemnation to the prepayment of the last installments of principal becoming
due under the Note and Mortgage, and if such proceeds are applied to the prepayment of the
Note and Mortgage, such proceeds and any income earned on the investment thereof less the
reasonable expenses of the Trustee and the Developer in collecting the same shall then become
part of the Trust Estate, and shall be deposited in the Bond Fund and applied to the
Extraordinary Mandatory Redemption of Bonds. Any such proceeds received from a taking of
less than substantially all of the Project shall be applied as follows:
(1) if no part of the improvements included in the Project is taken or damaged,
and the Trustee (as mortgagee under the Mortgage) in its discretion determines that the
efficient utilization of the Project is not impaired by such taking, then all of the
3152.1 32
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condemnation proceeds (after deducting the reasonable expenses of the Trustee and the
Developer in collecting the same), and any income earned on the investment thereof,
shall, subject to any applicable FHA requirements, be paid to the Developer;
(2) if any part of such improvements is taken or damaged, and if the Trustee
(as mortgagee under the Mortgage) in its discretion determines that the repair, rebuilding,
restoration, or rearrangement of the Project is not possible so as to restore the
operational condition of the Project to substantially the condition existing immediately
preceding such condemnation, then all of the condemnation proceeds (less the reasonable
expenses incurred by the Trustee or the Developer in collecting the same) and any
income earned on the investment thereof, shall, subject to any applicable FHA
requirements, be credited to the prepayment of the last installments of principal becoming
due under the Note and Mortgage, shall become part of the Trustee Estate, and shall be
deposited into the Bond Fund and applied to the Extraordinary Mandatory Redemption
of Bonds; and
(3) if any part of such improvements is taken or damaged, and if the Trustee
(as mortgagee under the Mortgage) in its discretion so determines, than all of the
condemnation proceeds (less the reasonable expenses incurred by the Trustee or the
Developer in collecting the same) and any income earned on the investment thereof,
shall, subject to any applicable FHA requirements, be disbursed to the Developer for the
repair, rebuilding, restoration or rearrangement of the Project, insofar as may be
possible, so as to restore the operational condition thereof to that existing immediately
preceding such condemnation, such net condemnation proceeds to be disbursed by the
Trustee from the Condemnation Account in accordance with the requisition procedure
established under the Servicing Agreement; and in such event, the Loan Agreement
provides that the Developer shall commence and diligently prosecute, or cause to be
commenced and diligently prosecuted, such repair, rebuilding, restoration or
rearrangement of the Project, and shall pay any amounts required for the completion
thereof if the condemnation proceeds (including any income earned on the investment
thereof) are insufficient therefor; and if, following the completion of such repair,
rebuilding, restoration or rearrangement, any moneys remain in the Condemnation
Account, such moneys shall, subject to any applicable FHA requirements, be paid to the
Developer.
Section 511. Extension of Time for Payment of Interest. Etc. Prohibited. The Issuer
shall not directly or indirectly extend or assent to the extension of the time for payment of any
interest coupon appertaining to, or claim for interest on, any of the Bonds and shall not directly
or indirectly be a party to or approve any arrangement therefore by purchasing or funding or
in any manner keeping alive any such coupon or claim for interest; and no coupon or claim for
interest which in any way at or after maturity has been transferred or pledged apart from the
Bond to which it relates or which shall in any manner have been kept alive after maturity by
3152.1 33
extension or by purchase thereof by or on behalf of the Issuer shall be entitled, in case of a
default hereunder, to any benefit or security under this Trust Indenture except after the prior
payment in full or the principal of all Bonds and of all coupons and claims for interest
appertaining thereto not so transferred, pledged, kept alive or extended.
[End of Article V]
3099.1 34
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ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
Section 601. Events of Default. Each of the following shall be an "event of default"
under this Indenture:
(a) default in the due and punctual payment of any interest on any Bond; or
(b) default in the due and punctual payment of the principal of or premium,
if any, on any Bond whether at the stated maturity thereof, or on proceedings for
redemption thereof, or on the maturity thereof by declaration; or
(c) if the Issuer files a petition under Chapter IX of the Bankruptcy Code; or
(d) default, and the continuation thereof for a period of 30 days following
notice to the Trustee, in the performance or observance of any other of the covenants,
agreements or conditions on the part of the Issuer in this Indenture or in the Bonds after
written notice to the Issuer from the Trustee or the registered owners of at least 25% of
the Bond Obligations at such time specifying such default and requiring the same to be
remedied.
Section 602. Acceleration; Other Remedies. Upon the occurrence of an event of default
as provided in Section 601(a) or (b), the Trustee may, and upon the written request of the
holders of not less than 25% of the Bond Obligations, 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. There shall be no acceleration upon the occurrence of an event
of default as described in Section 601(c) or (d) hereof.
If at any time after the Bonds shall have been so declared due and payable, and before
any judgment or decree for the payment of the money due shall have been obtained or entered,
the Issuer or the Developer shall pay to or deposit with the Trustee a sum sufficient to pay all
principal of the Bonds then due (other than solely by reason of such declaration) and all unpaid
installments of interest (if any) upon all the Bonds then due, with interest at the rate borne by
the Bonds on such overdue principal and (to the extent legally enforceable) on such overdue
installments of interest, and the reasonable expenses of the Trustee shall have been made good
or cured or adequate provisions shall have been made therefor, and all other defaults hereunder
have been made good or cured or waived in writing by owners of a 100% of the Bond
Obligations, then and in every case, the Trustee on behalf of the holders of all the Bonds shall
3099.1 35
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rescind and annul such declaration and its consequences; but no such rescission and annulment
shall extend to or shall affect any subsequent default, nor shall it impair or exhaust any right or
power consequent thereon.
Upon the happening and continuance of an event of default, the Trustee in its own name
and as trustee of an express trust, on behalf and for the benefit and protection of the holders of
all Bonds, may also proceed to protect and enforce any rights of the Trustee and, to the full
extent that the holders of such Bonds themselves might do, the rights of such Bondholders under
the laws of the State or under this Indenture by such of the following remedies as the Trustee
shall deem most effectual to protect and enforce such rights.
(1) by mandamus or other suit, action or proceeding at law or in equity, to
enforce the payment of the principal of, premium, if any, or interest on the Bonds then
Outstanding, or for the specific performance of any covenant or agreement contained
herein or in the Loan Agreement, the Note, or the Mortgage, or to require the Issuer to
carry out any other covenant or agreement with Bondholders and to perform its duties
under the Act;
(2) by pursuing any available remedies under the Loan Agreement, the Note
or the Mortgage;
(3) in connection with an event of default under Section 601(a) or (b), by
realizing or causing to be realized through sale or otherwise upon the security pledged
hereunder; and
(4) by action or suit in equity, to enjoin any acts or things that may be
unlawful or in violation of the rights of the holders of Bonds.
No remedy by the terms of this Indenture conferred upon or reserved to the Trustee or
to the Bondholders is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee
or to the Bondholders hereunder or under the Loan Agreement, the Note or the Mortgage, 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 thereto.
Section 603. Rights of Bondholders. If any event of default shall have occurred and if
requested in writing so to do by the owners of not less than 25% of the Bond with respect to
2975.1 36
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which there is a default, and if indemnified as provided herein, the Trustee shall be obliged to
exercise one or more of the rights and powers conferred by this Article as the Trustee, being
advised by counsel, shall deem most expedient in the interest of the Bondholders. Subject to the
provisions of Section 607, the holders of a majority of the Bond shall have the right at anytime,
by an instrument in writing executed and delivered to the Trustee, to direct the time, 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, in accordance with the provisions of law and of this Indenture.
Section 604. Waiver by Issuer. Upon the occurrence of an event of default, to the
extent that such right may then lawfully be waived, neither the Issuer nor anyone claiming
through or under it shall set up, claim or seek to take advantage of any appraisal, valuation,
stay,extension or redemption laws now or hereinafter in force, in order to prevent or hinder the
enforcement of the Indenture; and the Issuer, for itself and all who may claim through or under
it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all
right of appraisement and redemption to which it may be entitled under the laws of the State and
the United States.
Section 605. Application of Money. Any money received by the Trustee in the event
of a default pursuant to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in the case of the distribution of such money on account of principal
or premium, if any, or interest, upon presentation of Bonds, and notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
(a) to the payment of all amounts then due on the Bonds for principal;
premium, if any, and interest, in respect of which or for the benefit of which money has
been collected (other than Bonds which have matured or otherwise become payable prior
to such event of default and money for the payment of which is held in the Bond Fund),
ratably without preference or priority of any kind, according to the amounts due and
payable on such Bonds, for principal, premium, if any, and interest respectively; and
(b) to the payment of all amounts due the Trustee under Section 706.
Section 606. Remedies Under Mortgage and FHA Mortgage Insurance. (a) If the
Developer fails to make any payment required under the Note or Mortgage and such failure
continues for a period of 30 days, or if the unpaid principal balance of the Note shall have been
accelerated as a result of any nonmonetary default by the Developer under the terms of the
Mortgage; or if FHA shall have requested and the Trustee shall have declared, such an
acceleration upon a default by the Developer under the Regulatory Agreement, then the Trustee
shall immediately give written notice of such default to the holders of all Bonds in the same
manner prescribed in Article III hereof for notices of redemption.
r
2975.1 37
(b) If the Developer fails to make any payment required under the Note or Mortgage
and such failure continues for a period of 30 days, or if following a default by the Developer
in the performance of any covenant in the Regulatory Agreement, FHA shall have requested,
and the Trustee shall have declared, an acceleration of the unpaid principal balance of the Note,
the Trustee shall promptly (and in no event later than 15 days after the end of the 30-day grace
period for failure to make payments under the Note and Mortgage) give, or cause the Mortgage
Banker to give, written notice to FHA (i) of the occurrence of such default, (ii) of the Trustee's
election to assign the Note and Mortgage to FHA, (iii) of the Trustee's intention to file a claim
for the FHA mortgage insurance in accordance with FHA regulations, and (iv) of the fact that
the Mortgage was given to secure the Bonds. Simultaneously with the giving of such notice to
FHA, the Trustee shall give notice of its intent to file such claim to all Bondholders in the same
manner prescribed in Article III hereof for notices of redemption. Unless directed in writing
to the contrary by the holders of one hundred percent (100%) in aggregate principal amount of
the Bonds Outstanding within 20 days of the date such notice was sent to FHA and the
Bondholders, the Trustee shall take all actions necessary to assign the Note and Mortgage to
FHA and to recover such claim on the FHA mortgage insurance. In no event shall the
assignment of the Note and Mortgage be completed later than the last business day preceding
the 30th day following the giving of notice to FHA, unless an extension to such time period is
approved by FHA in writing, but in no event shall such extension exceed six months. If, prior
to the date the Note and Mortgage are assigned to FHA(pursuant to this paragraph or paragraph
(C) below) the Developer (i) pays all amounts due under the Note, Mortgage and Regulatory
Agreement and cures any other defaults thereunder, and (ii) delivers to the Trustee investment
obligations which are in an equal principal amount, bear interest at the same rate and mature on
the same date as the investments, if any, in the Reserve Account which have been sold to pay
interest on the Bonds pursuant to Section 406 hereof, then (iii) notwithstanding the provisions
of this paragraph and paragraph (C) below, the Trustee shall withdraw its notice of assignment
to.FHA (and give notice to the Bondholders that such notice of assignment has been withdrawn,
provided the Trustee shall first have received confirmation from FHA that withdrawing notice
of assignment will not adversely affect FHA's insurance of the Note, or be construed as a waiver
or reduction thereof. The preceding sentence shall not apply to any subsequent default by the
Developer as described in the first sentence of this paragraph.
(c) If a non-monetary default by the Developer under the terms of the Mortgage shall
have occurred, the Trustee shall, within 30 days after the occurrence of such default, on the
basis of its determination as to which course of action shall be in the best interest of the
Bondholders and without liability for any such determination, either:
(1) declare, or cause the Mortgage Banker to declare, an acceleration of the
unpaid principal balance of the Note by notice in writing to the Developer, and shall
promptly (and in no event later than 15 days after the end of the 30-day grace period
following the occurrence of such default under the Mortgage) give, or cause the
Mortgage Banker to give written notice to FHA (i) of the occurrence of such default, (ii)
2975.1 38
of the Trustee's election to assign the Note and Mortgage to FHA, (iii) of the Trustee's
intention to file a claim for the FHA mortgage insurance in accordance with FHA
regulations, and (iv) of the fact that the Mortgage was given to secure the Bonds; and
simultaneously with the giving of such notice to FHA, the Trustee shall give notice of
its intent to file such claim to all Bondholders in the same manner prescribed in Article
III hereof for notices of redemption; and, unless directed in writing to the contrary by
the holders of one hundred percent (100%) in aggregate principal amount of the Bonds
Outstanding within 20 days of the date such notice was sent to FHA and the
Bondholders, the Trustee shall take all actions necessary to assign the Note and Mortgage
to FHA and to recover such claim on the FHA mortgage insurance; provided that in no
event shall the assignment of the Note and Mortgage be completed later than the last
business day preceding the 30th day following the giving of notice to FHA or such longer
period as FHA may prescribe by regulations, unless an extension to such time period is
approved by FHA in writing; or
(2) enter into an agreement with the Developer approved by FHA, extending
the time for curing such default.
(d) In the event that FHA shall make payment of a claim for FHA mortgage insurance
in cash, whether in whole or in part, the Trustee shall apply such cash proceeds as provided in
Section [ ] hereof.
(e) In the event that FHA shall make payment of a claim for FHA mortgage insurance
in FHA debentures, whether in whole or in part, the Trustee shall apply such debentures as
provided in Section [ ] hereof, and give notice to the holders of all Bonds Outstanding in the
same manner prescribed in Article III hereof for notices of redemption that the Trustee has
received such FHA debentures. Except as provided in Section [ ] hereof, the Trustee shall
hold such FHA debentures to their maturity, or until the principal of and interest on all Bonds
outstanding have been paid, whichever is the earlier, and shall apply the principal thereof to the
payment of the principal of the Bonds Outstanding; provided, however, that at the written
request of the holders of one hundred percent (100%) in aggregate principal amount of the
Bonds Outstanding, or upon the determination by the Trustee (in the absence of such request)
that the proceeds of the sale of the FHA debentures and all other investments of amounts
deposited in the funds and accounts established hereunder would produce sufficient funds
together with all immediately available funds held by the Trustee hereunder to pay the principal
of and interest on all Bonds Outstanding, the Trustee shall sell such debentures and other
investments, deposit the proceeds so obtained and such other immediately available funds in the
Redemption Fund and apply the same as provided in Section [ ] hereof.
(f) In the event the Note and Mortgage are assigned to FHA upon a claim under the
FHA mortgage insurance, the Trustee shall, upon receipt of a direction by FHA pursuant to 24
2975.1 39
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C.F.R. Section 207.258(b)(5)(i), pay to FHA any amounts then remaining [on deposit in the
Equity Account and the Mortgage Account of the Construction Fund].
Section 607. Application of FHA Mortgage Insurance Benefits. (a)Moneys in the Bond
Fund and Debt Service Reserve Fund shall (except as provided in Section 606(F) hereof) be
deemed held for the benefit of the holders of the Bonds, and shall not be subject to such rights
of FHA.
(b) Upon receipt of the final payment of mortgage insurance proceeds from FHA, the
Trustee shall calculate the "Funds Available for Extraordinary Mandatory Redemption," being
the sum of: (i) all mortgage insurance proceeds paid in cash, including accrued interest on FHA
debentures to their date of delivery ("Cash Proceeds"); (ii) all uninvested moneys held in all
funds and accounts established under this Indenture; and (iii)the amount which could be realized
from the sale of all investments (not including FHA debentures) deposited to the credit of all
funds and accounts established under this Trust Indenture ("Investments on Hand"). In the event
that all mortgage insurance proceeds are paid by FHA in cash and the Funds Available for
Extraordinary Mandatory Redemption are sufficient to redeem all Bonds Outstanding pursuant
to extraordinary Mandatory Redemption on the first practicable date such redemption can be
made in accordance with Article III hereof, the Trustee shall sell all Investments on Hand and
deposit the proceeds of sale, together with all Cash Proceeds and Cash on Hand in the
Redemption Fund and apply such amounts to the Extraordinary Mandatory Redemption of
Bonds. In the event that mortgage insurance benefits are paid by FHA in part in FHA
debentures and in part in cash, and the Funds Available for Extraordinary Mandatory
Redemption (if applied on the first practicable date to Extraordinary Mandatory Redemption of
Bonds) and the income and principal on the FHA debentures (if applied to Sinking Fund
Redemption pursuant to Section [ ] hereof) would be sufficient to pay when due the interest on,
and to pay at or prior to maturity the principal.of, all Bonds Outstanding, then the Trustee shall
sell all Investments on Hand and deposit the proceeds of sale, together with all Cash Proceeds
and Cash on Hand in the Redemption Fund and apply such amounts to the Extraordinary
Mandatory Redemption of Bonds; and the Trustee shall deposit the FHA debentures to the credit
of the Debt Service Account and apply the interest income thereon and the principal thereof to
Sinking Fund Redemption of Bonds pursuant to Section [ ] hereof.
(c) In the event that the mortgage insurance proceeds (whether received in the form
of cash, FHA debentures or both) together with Cash on Hand and the proceeds which could be
realized from the sale of Investments on Hand are not sufficient to pay the principal or
Redemption Price of and interest on all Bonds Outstanding in the manner described in paragraph
(B) above, and if the Trustee could make up such deficiency by investing an amount not
exceeding [$651,750] (the "Minor Portion," consisting of Cash Proceeds, Cash on Hand,
Investments on Hand, or any combination thereof) and applying the Minor Portion and the
investment income therefrom (without reinvestment) to the Sinking Fund Redemption of the
Bonds for which the application of funds pursuant to paragraph (B) above is insufficient, then
2975.1 40
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the Trustee shall deposit the Minor Portion and any FHA debentures in the Bond Fund and apply
the interest income thereon and the principal thereof to Sinking Fund Redemption of Bonds
pursuant to Section [ ] hereof; and the Trustee shall deposit all Funds Available for
Extraordinary Mandatory Redemption which are in excess of the Minor Portion in the
Redemption Fund and apply the same on the first practicable date to the Extraordinary
Mandatory Redemption of Bonds; provided, that the Minor Portion shall not be invested for a
period longer than necessary to pay the principal or Redemption Price of and interest on all
Bonds Outstanding.
(d) In the event that the mortgage insurance proceeds, Cash on Hand and the proceeds
which could be realized from the sale of Investments on Hand are not sufficient to pay the
principal or Redemption Price of and interest on all Bonds Outstanding in the manner described
in paragraph (C) above, including funds which could be derived from the investment of the
Minor Portion, then all Investments on Hand and all FHA debentures shall be sold and the
proceeds of sale, together with all Cash Proceeds and Cash on Hand shall be deposited in the
Redemption Fund and applied pursuant to paragraph (E) below.
(e) Any proceeds from the sale of FHA debentures and other investments as deposited
in the Redemption Fund pursuant to Section 6.06(E) hereof, and any amounts transferred to the
Redemption Fund pursuant to paragraph (D)of this Section 6.07, shall be applied to the payment
of the accrued interest and then to the principal then owing on the Bonds, and in case such
moneys shall be insufficient to pay the same in full, then such amounts (including the interest
and principal on any FHA debentures) shall be applied to the payment of interest and principal
ratably without preference or priority of one Bond or coupon over another.
Section 608. No Obligation of FHA. No provision of Trust Indenture shall impose any
obligation upon FHA, confer upon any party hereto, or to any Bondholder any right against
FHA, or relieve FHA of any obligation under the FHA mortgage insurance.
Section 609. Remedies Vested in Trustee. All rights of action, including the right to
file proof of claims, under this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the production thereof in any trial or other
proceedings relating thereto and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any
holders of the Bonds, and any recovery of judgment shall be for the benefit as provided herein
of the holders of the Outstanding Bonds.
Section 610. 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 hereunder or for the appointment of a receiver or any other
remedy hereunder, unless (a) a default shall have occurred of which the Trustee shall have been
notified as provided herein; (b) such default shall have become an event of default; (c) the
2975.1 41
holders of at least 25% of the Bonds shall have made written request to the Trustee and shall
have offered reasonable opportunity to the Trustee either to proceed to exercise the powers
hereinbefore granted or to institute such action, suit or proceeding in its own name; (d) such
holders shall have offered to the Trustee indemnity as provided herein; and (e) the Trustee shall
within 60 days thereafter fail or refuse to exercise the powers hereinbefore granted, or to
institute such action, suit or proceeding; 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 or the rights of any other holders of Bonds or to obtain
priority or preference over any other holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all holders of Bonds with
respect to which there is a default. Nothing contained in this Indenture shall, however, affect
or impair the right of any Bondholder to enforce the payment of the principal of, the premium,
if any, and interest on any Bond at the maturity thereof or the obligation of the Issuer to pay the
principal of, premium, if any, and interest on the Bonds issued hereunder to the respective
holders thereof, at the time, in the place, from the sources and in the manner expressed in said
Bonds.
Section 611. Termination of Proceedings. In case the Trustee shall have proceeded to
enforce any right under this Indenture by the appointment of a receiver, by entry or otherwise,
and such proceedings shall have been discontinued or abandoned for any reason, or shall have
been determined adversely, then and in every such case the Issuer and the Trustee shall be
restored to their former positions and rights hereunder with respect to the Trust Estate herein
conveyed, and all rights, remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.
Section 612. Waivers of Events of Default. The Trustee shall waive any event of default
hereunder and its consequences and rescind any declaration of maturity of principal of and
interest on the Bonds upon the written request of the holders of a majority of the Bonds with
respect to which there is a default; provided, however, that there shall not be waived (a) any
event of default in the payment of the principal of any Bonds at the date of maturity specified
therein, or upon proceedings for mandatory redemption, (b) any default in the payment when
due of the interest or premium on any such Bonds, unless prior to such waiver or rescission all
arrears of interest, with interest (to the extent permitted by law) at the rate borne by the Bonds
in respect of which such default shall have occurred on overdue installments of interest or all
arrears of payments of principal or premium, if any, when due (whether at the stated maturity
thereof or upon proceedings for mandatory redemption) as the case may be, and all expenses of
the Trustee (including attorney's fees), 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
2975.1 42
•
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
thereto.
[End of Article VI]
•
2975.1 43
,
ARTICLE VII
THE TRUSTEE
Section 701. 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.
(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 person would exercise or use under the
circumstances in the conduct of his or her 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 willful
misconduct, except_that
(1) This subsection (c) 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 a responsible officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(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 directions received pursuant to Sections
603 or 610 or the direction of the holders of a majority of the Bonds 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.
(d) No provisions 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.
2975.1 44
(e) 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.
(f) The Trustee shall not be required to furnish any bond or surety for the
performance of its obligations hereunder.
Section 702. Notice of Default. Within 90 days after the Trustee is deemed to have
notice under Section 703(j) of any default hereunder, the Trustee shall transmit by registered or
certified mail, to the holders of all Bonds then Outstanding, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or
interest on any Bond when due, the Trustee shall be protected in withholding such notice if and
so long as the Trustee in good faith determines that the withholding of such notice is in the
interests of the holders of the Bonds. For the purpose of this Section, the term "default" means
any event that is, or after notice or lapse of time or both would become, an event of default.
Section 703. Certain Rights of Trustee. Except as otherwise provided in Section 1001:
(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 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 order of the Issuer shall be sufficiently evidenced by a
request or an order signed by an authorized representative of the Issuer and any
resolution of the Issuer may be sufficiently evidenced by a certificate of the President of
the Board of Trustees of the Issuer;
(c) any notice, request, direction, election, order or demand of the Developer
mentioned herein shall be sufficiently evidenced by an instrument purporting to be signed
in the name of the Developer by any general partner of the Developer (unless other
evidence in respect thereof be herein specifically prescribed);
(d) 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 a certificate signed by an
authorized representative of the Issuer;
(e) the Trustee may consult with counsel, architects and engineers and other
experts, and the written advice of such counsel, architects or engineers and other experts
2975.1 45
i t
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;
(f) 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 holders of
the Bonds pursuant to this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction;
(g) 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 or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or 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
and the Developer, personally or by agent or attorney;
(h) 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 but the Trustee
shall be responsible for any misconduct or negligence on the part of such agent or
attorney;
(i) notwithstanding anything to the contrary contained in this Indenture, the
Trustee shall have the right, but shall not be required, to demand, with respect to the
authentication of any Bonds, the withdrawal of any cash, the release of any property, or
any action whatsoever within the purview of this Indenture, any showings, certificates,
opinions, appraisals or other information, or corporate action or evidence thereof, in
addition to those matters required by the terms hereof as a condition of such action by
the Trustee, all as is deemed desirable by the Trustee for the purpose of establishing the
right of the Issuer or the Developer, as the case may be, to the authentication of any
Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee;
(j) the Trustee shall not be required to take notice or be deemed to have
notice of any default hereunder except failure in any of the payments to the Trustee
required to be made by Article IV unless the Trustee shall be specifically notified in
writing of such default by the Issuer or the holders of at least 25% of the Bonds or shall
otherwise have actual knowledge thereof; and
(k) all notices or other instruments required by this Indenture to be delivered
to the Trustee must, in order to be effective, be delivered at the principal corporate trust
office of the Trustee at its Notice Address.
2975.1 46
` x
Section 704. Money Held in Trust. Money held by the Trustee shall be held separately
in trust, segregated from other funds of the Trustee.
Section 705. Compensation and Reimbursement. The Issuer shall pay or cause to be
paid to the Trustee reasonable compensation for its services hereunder, and also all its
reasonable expenses and disbursements, and shall indemnify the Trustee against any liabilities
which it may incur in the exercise and performance of its powers and duties hereunder;
provided, however, that except with respect to the Surplus Account, as expressly provided in
Section , the Trustee shall not look to any moneys in the Trust Estate for payment of any
fees, expenses, compensation or indemnity.
Section 706. Successor Trustee. Any corporation or association into which the Trustee
may be converted or merged, or with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or substantially as a whole, or any corporation
or association resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party shall, ipso facto, be and become successor Trustee hereunder and vested with
all the title to the whole property or Trust Estate and all the trusts, powers, discretion,
immunities, privileges and all other matters as was its predecessor, without the execution or
filing of any instruments or any further act, deed or conveyance on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 707. Resignation by the Trustee. The Trustee and any successor Trustee may
at any time resign from the trusts hereby created by giving 60 days' written notice by registered
or certified mail to the Issuer and to each registered owner of the Bonds then Outstanding;
provided that no such resignation shall take effect until a successor Trustee shall have been
appointed and shall have accepted such appointment as provided in Sections 709 and 710. If no
successor Trustee shall have been appointed and have accepted appointment within 60 days
following the giving of all required notices of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
Section 708. Removal of Trustee. Any Trustee hereunder may be removed at any time
by an instrument appointing a successor meeting the requirements of Section 710, executed by
the holders of a majority in aggregate principal amount of the Bonds then Outstanding, filed with
the Trustee and the Issuer.
Section 709. Appointment of Successor Trustee. If the Trustee or any successor trustee
resigns or is removed or dissolved, or if its property or business is taken under the control of
any state or federal court or administrative body, a vacancy shall forthwith exist in the office
of the Trustee, and the Issuer shall appoint a successor, meeting the requirements of Section
710, but only upon the receipt of written approval by FHA of the appointment, and shall mail
notice of such appointment to the holders of the Bonds, as the case may be. If the Issuer fails
to make such appointment, the holders of a majority in principal amount of the Bonds then
2975.1 47
Outstanding may do so, but only upon the receipt of written approval by FHA of the
appointment.
Section 710. Qualification of Successor. A successor trustee shall be a state or national
bank with trust powers or a bank and trust company or a trust company having capital and
surplus of at least $10,000,000, shall be a mortgagee approved by FHA, and shall immediately
upon and as a condition of becoming trustee hereunder, be assigned the Note and Mortgage and
the Security Agreement.
Section 711. Instruments of Succession. Any successor trustee shall execute,
acknowledge and deliver to the Issuer an instrument accepting such appointment hereunder; and
thereupon such successor trustee, without any further act, deed or conveyance, shall become
fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its
predecessor in the trust hereunder, with like effect as if originally named Trustee herein. The
Trustee herein shall assign the Note and Mortgage and the Security Agreement to such successor
trustee, without recourse or warranty (express or implied), and shall pay over to the successor
trustee all moneys held by it hereunder; and the Trustee herein and the Issuer shall execute and
deliver an instrument transferring to the successor trustee all the estates, properties, rights,
powers and trusts hereunder of the Trustee herein. -
Section 712. Merger of Trustee. Any corporation into which any trustee hereunder may
be merged or with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which any Trustee hereunder shall be a party, shall be the successor trustee
under this Indenture, without the execution or filing of any paper or any further act on the part
of the parties hereto, anything herein to the contrary notwithstanding, provided that such Issuer
shall meet the requirements of Section 710.
Section 713. Enforcement of the Note.Mortgage and Servicing Agreement; Amendments
to Note and Mortgage. (a) The Trustee shall maintain at all times its status in good standing as
an FHA-approved mortgagee.
(b) The Trustee shall enforce the full and punctual performance by the Developer of
all covenants, agreements and obligations on the part of the Developer to be performed under
the Note, Mortgage, Building Loan Agreement, Security Agreement, Regulatory Agreement and
Loan Agreement, and the full and punctual performance by the Mortgage Banker of all
covenants, agreements and obligations on the part of the Mortgage Banker to be performed
under the Servicing Agreement. In the event of a termination of the Servicing Agreement, or
a resignation by the Mortgage Banker, the Trustee shall use its best efforts to arrange for the
appointment of a substitute Mortgage Banker which is an FHA-approved mortgagee with
experience in servicing FHA-insured loans for multifamily housing or health care projects; and
pending the appointment of a substitute Mortgage Banker, the Trustee shall perform all duties
to be performed by the Mortgage Banker under the Servicing Agreement.
2975.1 48
(c) Except as may be permitted in this Indenture, the Trustee shall not consent to any
amendment to the Note, Mortgage or Building Loan Agreement unless the Trustee has received
the prior written consent of FHA and unless the Trustee determines that such amendment will
not adversely affect the security for the Bonds and will not adversely affect the sufficiency of
payments under the Note and Mortgage (including FHA insurance benefits) for payment of debt
service on the Bonds, taking into account income from the Debt Service Reserve Fund.
(d) The Trustee, as mortgagee under the Mortgage, may consent to the Developer's
incurring indebtedness in addition to the Note, secured by a lien on the Project on a parity with
or subordinate to (but not superior to) the lien of the Mortgage, provided the Trustee shall first
have received:
(1) if the purpose for which such additional debt is being incurred is to pay
or to complete the payment of the Costs of the Project, or to pay the Costs of Capital
Additions, (a) a certificate of need or other evidence of compliance with any applicable
requirements of Title 16, Article 1, Chapter 3.2 of the Indiana Code, as amended, and
the rules and regulations thereunder or an opinion of Counsel that no further review or
action is required under such statute and regulations, and (b) a certificate of the
Developer stating (1) the estimated Cost of completion of the Project, or the Cost of such
Capital Additions, as the case may be, (2) that the proceeds of such additional debt,
together with any funds to be provided by the Developer, will be sufficient to pay such
Costs and (3) that, except with respect to additional debt to complete the Project, no
Event of Default hereunder or the Loan Agreement, Note, Mortgage or Regulatory
Agreement has occurred and is continuing;
(2) if such additional debt is to be insured by FHA and secured by the
Mortgage, an increase in the FHA mortgage insurance to cover any increase in the
principal amount of the indebtedness secured by the Mortgage, and executed counterparts
of the evidence of indebtedness given by the Developer in respect of such additional debt,
and any amendments to the Note and the Mortgage such that the revised payments of
principal and interest to be made by the Developer shall be increased by at least an
amount sufficient to pay when due the principal of and interest on such additional debt;
(3) the consent of FHA to such additional debt and the security therefor, as
required by Section 6 of the Regulatory Agreement;
(4) if permitted by FHA, an executed counterpart of an amendment to the
Mortgage providing that a default under such additional debt shall constitute an event of
default under the Mortgage;
2975.1 49
,
(5) written confirmation from Standard & Poor's Corporation that the
incurring of such additional debt will not, in and of itself, adversely affect the rating then
in effect for the Bonds Outstanding;
(6) executed counterparts of any other instruments given or agreements made
by the Developer for the security of such additional debt, which shall provide that any
default thereunder shall constitute a default under the Mortgage, together with an opinion
of Counsel to the Developer that (a) any amendments to the Note and Mortgage and all
such other amendments, instruments or agreements are duly authorized, executed and
delivered by the Developer and are legal, valid and binding obligations, enforceable in
accordance with their terms, subject to state and federal laws and equitable principles
affecting the enforcement of creditors' rights and (b) any consents or approvals of any
governmental authorities required in connection with the issuance and related transactions
have been obtained.
[End of Article VII]
2975.1 50
t V
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 801. Supplemental Indentures Not Requiring Consent of Bondholders. The
Issuer and the Trustee may, without the consent of or notice to any of the Bondholders, enter
into an indenture or indentures supplemental to this Indenture as shall not be inconsistent with
the terms and provisions hereof or materially adverse to the interests of the holders of the Bonds
for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Indenture;
(b) to subject to the lien and pledge of this Indenture additional revenues,
properties or collateral;
(c) to grant to or confer upon the Trustee for the benefit of the Bondholders
any additional rights, remedies, powers or authority that may lawfully be granted to or
conferred upon the Bondholders or the Trustee or any of them;
(d) to modify, amend or supplement this Indenture or any indenture
supplemental hereto in such manner as to permit the qualification hereof and thereof
under the Trust Indenture Act of 1939, as amended, or any similar federal statute
hereafter in effect or under any state securities laws;
(e) to permit the Trustee to comply with any obligations imposed upon it by
law;
(f) to achieve compliance of this Indenture with any applicable federal
securities or tax laws;
(g) to maintain the exclusion of interest on the Bonds from gross income for
federal income tax purposes;
(h) to improve or maintain the rating on the Bonds; and
(i) in connection with any other change in this Indenture that, in the judgment
of the Trustee, is not to the prejudice of the Trustee or the Bondholders.
Section 802. Supplemental Indentures Requiring Consent of Bondholders. The Authority
and the Trustee may, with the consent of the holders of not less than two-thirds of the Bonds,
from time to time, enter into supplemental indentures for the purpose of modifying, altering,
2975.1 51
`
amending, adding to or rescinding any of the terms or provisions of Section 801 contained in
this Indenture or in any supplemental indenture; provided, however, that nothing in this Section
contained shall permit, or be construed as permitting, without the consent of the owners of all
the Bonds who would be affected thereby (a) an extension of the stated maturity or a reduction
in the principal amount or reduction in the rate, or extension of time of payment of interest on,
or reduction of any premium payable on the redemption of, any Bonds, without the consent of
the holders of all of the Bonds; (b) the creation of any lien prior to or on a parity with the lien
of this Indenture; (c) a reduction in the amount of the Bonds whose consent is required for the
execution of such supplemental indentures, without the consent of the holders of all the Bonds
at the time Outstanding which would be affected by the action to be taken; (d) the modification
of the rights, duties or immunities of the Trustee without the consent of the Trustee; (e) a
privilege or priority of any Bond over any other Bonds; (f) any action that, in the opinion of
Bond Counsel, may result in the loss of the exclusion of interest on the Bonds from gross
income for federal income tax purposes; or (g) any change in Section 509.
If at any time the Issuer shall request the Trustee to enter into any such supplemental
indenture for any of the purposes of this Section, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the proposed execution of such
supplemental indenture to be mailed, postage prepaid, to all Bondholders. Such notice shall
briefly set forth the nature of the proposed supplemental indenture and shall state that copies
thereof are on file at the corporate trust office of the Trustee for inspection by all Bondholders.
If, within 60 days or such longer period as shall be prescribed by the Issuer following the
mailing of such notice, the holders of not less than two-thirds of the Bonds at the time of the
execution of any such supplemental indenture shall have consented to and approved the execution
thereof as herein provided, no holder of any Bond shall have any right to object to any of the
terms and provisions contained therein, or the operation thereof, or in any manner to question
the propriety of the execution thereof, or to enjoin or restrain the Trustee or the Issuer from
executing the same or from taking any action pursuant to the provisions thereof. Upon the
execution of any such supplemental indenture as is in this Section permitted and provided, this
Indenture shall be deemed to be modified and amended in accordance therewith. The Trustee
shall not be obligated to enter into a supplemental indenture unless it shall have received an
opinion of counsel, upon which it shall rely, as conclusive evidence that execution and delivery
of a supplemental indenture has been effected in compliance with the provisions of this Article.
[End of Article VIII]
2975.1 52
•
•
ARTICLE IX
SATISFACTION AND DISCHARGE OF INDENTURE
Section 901. Defeasance. When the principal of, and interest on, all Bonds issued
hereunder have been paid, or provision has been made for payment of the same, together with
all other sums payable hereunder by the Issuer, the right, title and interest of the Trustee shall
thereupon cease and the Trustee, on demand of the Issuer, shall release the lien of this
Indenture, shall cancel the Note and return the same to the Developer, shall endorse the
Mortgage for cancellation, and shall execute such documents to evidence such release as may
be reasonably required by the Issuer and the Developer and shall turn over to the Developer or
such person, body or authority as may be entitled to receive the same all balances remaining in
any funds hereunder provided, however, that in the event of a default under the Mortgage and
payment of a claim under the mortgage insurance in FHA debentures, if any principal remains
outstanding on such FHA debentures when the principal of, and interest on all Bonds has been
paid, or provision therefor has been made, as provided below, the Trustee shall return such FHA
debentures to FHA for cancellation, unless the Issuer and the Trustee shall have received a
written opinion of nationally recognized bond counsel satisfactory to both that retention of such
FHA debentures will not adversely affect the exemption of interest on the Bonds from federal
income tax.
Proper provision for the payment of the principal of and interest on the Bonds may be
made by delivery to the Trustee of (a) cash, (b) non-callable direct obligations of the United
States of America, or non-callable obligations fully guaranteed as to principal and interest by the
United States of America, maturing on or before the dates when payments in respect of the
Bonds become due, and the principal amount of which and the interest thereon which when due
will be in an aggregate amount sufficient without reinvestment to make all payments on the
Bonds when due, or (c) any combination of cash and such obligations.
[End of Article IX]
2975.1 53
•
ARTICLE X
MISCELLANEOUS
Section 1001. Consents and Other Instruments of Bondholders. Any consent,request,
direction, approval, waiver, objection, appointment or other instrument required by this
Indenture to be signed and executed by the Bondholders may be signed and executed 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
instrument, if made in the following manner, shall be sufficient for any of the purposes of this
Indenture and shall be conclusive in favor of the Trustee with regard to any action taken under
such instrument, namely:
(a) The fact and date of the execution by any Person of any such instrument
may be proved by the certificate of any notary public or other officer of any jurisdiction,
authorized by the laws thereof to take acknowledgments of deeds, certifying that the
person signing such instrument acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a partnership
on behalf of such corporation, association or partnership, such affidavit or certificate
shall also constitute sufficient proof of his authority.
(b) The ownership of Bonds shall be provided by the Bond Register.
(c) Any request, consent or vote of the holder of any Bond shall bind every
future holder of the same Bond and the holder of every Bond issued in exchange therefor
or in lieu thereof, in respect of anything done or permitted to be done by the Trustee or
the Issuer pursuant to such request, consent or vote.
(d) In determining whether the holders of the requisite amount of the Bonds
have concurred in any demand, request, direction, consent or waiver under this
Indenture,Bonds that are owned by the Issuer or the Developer or by any person directly
or indirectly controlling or controlled by or under direct or indirect common control with
the Issuer or the Developer shall be disregarded and deemed not to be Outstanding for
the purpose of determining whether the Trustee shall be protected in relying on any such
demand, request, direction, consent or waiver. Only Bonds which the Trustee knows to
be so owned shall be disregarded. Bonds so owned which have been pledged in good
faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such Bonds. In case
of a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
2975.1 54
,
Section 1002. Limitation of Rights. With the exception of rights herein expressly
conferred, nothing expressed 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, FHA, the Developer
and the holders of the Bonds, any legal or equitable right, remedy or claim under or in respect
to this Indenture or any covenants, conditions and provisions hereof.
Section 1003. 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, statute, rule of law or 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 circumstances, or of rendering any
other provision or provisions herein contained invalid, inoperative, or unenforceable, to any
extent whatever.
The invalidity of any one or more phrases, sentences, clauses or sections in this Indenture
contained shall not affect the remaining portions of this Indenture or any part thereof.
Section 1004. Notices. Except as otherwise provided, all notices, certificates or other
communications hereunder shall be sufficiently given and shall be deemed given when mailed
postage prepaid, return receipt requested, or dispatched by telegram, addressed to the Notice
Address of the Person to whom such notices, certificates or other communications are given.
Section 1005. Payments Due on Saturdays, Sundays and Holidays. In any case where
the date of maturity of interest on or principal of the Bonds, or the date fixed for redemption
of any Bonds, shall be a Saturday, Sunday, legal holiday or a day on which banking institutions
in the state in which the principal corporate office of the Trustee is located are authorized by law
to close, then payment of interest or principal need not be made on such date but may be made
on the next succeeding business day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the period after such
date.
Section 1006. Counterparts. This Indenture may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 1007. Situs. The State shall be deemed to be the situs of the Trust Estate for
all purposes of this Indenture.
Section 1008. No Recourse. No recourse shall be had for the payment of the principal
of (or premium, if any) or the interest on the Bonds, or for any claim based thereon, or
otherwise in respect thereof, or based on or in respect of the Indenture or any indenture
2975.1 55
•
t r
c 3
supplemental hereto, against any trustee, member, officer, agent, counsel or director, as such,
past, present or future, of the Issuer or any successor, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance thereof and as part of the consideration for the issue thereof,
expressly waived and released.
Section 1009. Successors and Assigns. All the covenants and representations contained
in this Indenture, by or on behalf of the Issuer and the Trustee, shall bind and inure to the
benefit of their successors and assigns, whether so expressed or not.
Section 1010. Books. Records and Accounts. The Trustee agrees to keep proper books,
records and accounts in which complete and correct entries shall be made of all transactions
relating to the receipt, disbursements, investment, allocation and application of the proceeds
received from the sale of the Bonds, the revenues received from the Loan Agreement, the Loan,
the Funds created pursuant to this Indenture and all other moneys held by the Trustee hereunder.
The Trustee shall make such books, records and accounts available for inspection by the Issuer
or the owner of any Bond during reasonable hours and under reasonable conditions.
Section 1011. Subordination to HUD Regulations. Notwithstanding anything in this
instrument to the contrary, the provisions hereof are subject to the following:
(a) In the event of conflict between the provisions of this instrument and the
National Housing Act, the regulations and administrative requirements promulgated
thereto, such acts, regulations and administrative requirements shall control. No
amendment to this instrument shall conflict with any such acts, regulations,
administrative requirements.
(b) This instrument shall not be construed to restrict or adversely affect the
duties and obligations of the Trustee under the contracts of insurance between the Trustee
and FHA with respect to the Loan.
(c) The Bonds are not a debt of the United States of America, FHA, or any
other federal governmental agency and are not guaranteed by the full faith and credit of
the United States.
(d) Any project funds held by the Trustee, as mortgagee, for or on behalf of
the Developer shall be maintained separate and apart from the funds established and held
by the Trustee for the holders of the Bonds and the various escrows and funds, if any,
under this Indenture.
[End of Article X]
2975.1 56
• a
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed and their respective corporate seals to be hereunto affixed and attested, all as of the
date and year first above written.
ISSUER OF SOUTH BEND, INDIANA
By
President
(SEAL)
Attest:
City Clerk
[NAME], as Trustee
Attest:
By By
Title Title
The undersigned have reviewed, and agree to comply with, and be bound by, the
provisions of the within Trust Indenture, with the same force and effect as if the undersigned
were each named as parties to the Trust Indenture.
HEALTH QUEST REALTY V
By
General Partner
FOUNTAINVIEW PLACE CORPORATION
OF SOUTH BEND
By
President
HEALTH QUEST CORPORATION
By
President
2975.1 57
4*
r
ORDINANCE NUMBER [
OF THE
COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA REGARDING THE ISSUANCE OF ECONOMIC DEVELOPMENT REVENUE
REFUNDING BONDS (REGENCY PLACE PROJECT)
WHEREAS, pursuant to Title 36, Article 7, Chapter 12 of the Indiana Code, as amended
(the "Act "), the Commission has heretofore issued $4,340,000 principal amount of City of South
Bend Health Care Facilities Revenue Bonds Fountainview Place of South Bend Issue (FHA
Insured Project), Series A (the "1982 Bonds ") on October 1, 1982 for the purpose of financing
the costs of a project, consisting of the acquisition and improvement of certain premises in the
City and construction thereon and equipment of a nursing home facility (the "Project "), owned
by Health Quest Realty V, an Indiana general partnership (the "Developer "); and
WHEREAS, the City loaned (the "1982 Loan") the proceeds of the 1982 Bonds to the
Developer pursuant to a Loan Agreement dated as of October 1, 1982 (the "1982 Financing
Agreement ") between the City and the Developer, pursuant to which the Developer agreed to
make payments to provide sufficient funds to pay the principal of and interest on the 1982
Bonds; and
WHEREAS, the 1982 Loan is evidenced by the Developer's note (the "Note ") in the
aggregate principal amount of $3,853,800, and a Mortgage securing the Note constituting a first
lien on the Project (the "Mortgage "); and
WHEREAS, the United States Secretary of Housing and Urban Development, acting
through the Federal Housing Commissioner ( "FHA "), has insured the advances of funds secured
by the Mortgage, and the Note was initially endorsed for insurance by FHA pursuant to Section
232 of the National Housing Act, as amended, and the regulations thereunder; and
10"5.1
WHEREAS, the City, as requested by the Developer, has determined to issue, sell and
deliver $3,610,000 City of South Bend, Health Care Facilities Revenue Refunding Bonds,
Regency Place of South Bend Issue (FHA Insured Project) Series 1992 A (the "Bonds ") pursuant
to the Act to make funds available for the refunding of the 1982 Bonds and the refinancing of
the Project; and
WHEREAS, the 1982 Bonds shall be called for redemption on February 1, 1993; and
WHEREAS, upon the redemption of the 1982 Bonds, the Note and the Mortgage will be
held by the Trustee as security for the Bonds and FHA will continue to insure the advances of
funds secured by the Mortgage and Note; and
WHEREAS, the Authority desires to sell the Bonds through a private placement thereof
with certain investors, through Bank One, Columbus, N.A. (the "Placement Agent "); and
WHEREAS, there have been prepared and submitted to the Common Council of the City
(the "Common Council ") proposed forms of:
(i) the Trust Indenture dated as of November 1, 1992 (the "Indenture ")
between the City and Society National Bank, Indiana, as trustee (the "Trustee ") pursuant
to which the Bonds will be issued;
(ii) a Preliminary Private Placement Memorandum (the "Preliminary
Placement Memorandum ") to be used by the Placement Agent in connection with the sale
of the Bonds;
(iii) a Bond Placement Agreement (the "Placement Agreement ") between the
City and the Placement Agent in connection with the sale of the Bonds;
(iv) a Tax Regulatory Agreement and No Arbitrage Certificate to be dated the
date of issuance of the Bonds (the "Tax Regulatory Agreement ") between the City-and
the Trustee; and
(v) the Loan Agreement (the "Loan Agreement ") dated as of November 1,
1992 between the City and the Developer.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA:
Section 1. Incorporation of Recitals. The Recitals contained in this Ordinance are true
and correct and are incorporated in this Ordinance by this reference.
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Section 2. Findings Public Benefits. The Common Council of the City hereby finds
and determines that the refunding of the 1982 Bonds would be of benefit to the health and
general welfare of the City and would comply with the Act.
Section 3. Issuance of the Bonds. The Common Council hereby authorizes the issuance
of the Bonds by the City, for the purpose of refunding the 1982 Bonds issued by the City to
acquire, improve, furnish or equip the Project. The principal amount of the Bonds shall not
exceed $3,610,000. The Bonds shall be dated November 1, 1992; the Bonds shall be numbered
as the Trustee shall determine and shall be fully registered without coupons. The Bonds shall
bear interest at such rate not to exceed 10.5% per annum and shall have maturities and
redemptions as set forth in the final Private Placement Memorandum approved by the Mayor or
another Authorized Representative (as defined below).
The principal of the Bonds shall be payable upon presentation thereof at the principal
corporate trust office of the Trustee under the Indenture. The interest on the Bonds shall be paid
by check or draft of the Trustee sent to the registered owners of the Bonds; provided, however,
if requested in writing by an owner of the Bonds and if proper instructions are provided to the
Trustee as required under the Indenture, the Trustee is hereby authorized to pay the interest on
the Bonds by wire transfer to the owners thereof.
The Bonds shall be executed on behalf of the City by, and bear the manual or facsimile
signature of, the Mayor and Clerk of the City (the "Clerk "), and the seal of the City shall be
thereunto affixed (or imprinted or engraved if in facsimile).
The Bonds shall be in the form set forth in the final form of the Indenture.
Section 4. Sale of Bonds. The Common Council hereby authorizes the placement of the
Bonds to the original purchaser thereof pursuant to the Indenture and a placement agreement
approved by the Mayor or any other person authorized to do the same by the Mayor
( "Authorized Representative ").
Section 5. Limited Obligation. THE BONDS AND THE INTEREST THEREON DO
NOT AND SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF, OR A CHARGE
AGAINST THE GENERAL CREDIT OR TAXING POWER OF, THE CITY, BUT ARE
LIMITED OBLIGATIONS OF THE CITY PAYABLE SOLELY FROM REVENUES AND
OTHER AMOUNTS DERIVED FROM THE LOAN AGREEMENT.
Section 6. The Indenture. The Indenture is hereby approved in the form submitted to
this meeting, and a copy of the Indenture shall be filed with the minutes of this meeting. The
Mayor and the Clerk are hereby authorized and directed to execute and deliver the Indenture
without further approval of the Common Council in substantially the form herein approved with
such additions, deletions and modifications thereto as may be approved by the Act, the execution
10945.1
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of the Indenture being conclusive evidence of such approval and of the approval of the Common
Council; and the Clerk, or any Authorized Representative, is hereby authorized and directed to
affix the seal of the City to the Indenture and to attest the same.
Section 7. Trustee. Society National Bank, Indiana, is hereby appointed Trustee under
the Indenture. The Indenture may provide that the Trustee thereunder, or another corporate
entity, shall act as bond registrar and authenticating agent.
Section 8. Delivery of Bonds. After execution on behalf of the Mayor and the Clerk,
the Bonds shall be delivered to the Trustee, which is hereby authorized and requested to
authenticate and deliver the Bonds to the Placement Agent for the benefit of the original
purchaser in accordance with and upon compliance with the provisions of the Indenture.
Section 9. Bond Counsel. Kutak Rock is hereby appointed Bond Counsel in connection
with the issuance and sale of the Bonds.
Section 10. The Placement Agreement. The Placement Agreement is hereby approved
in the form submitted to this meeting, and a copy of the Placement Agreement shall be filed with
the minutes of this meeting. The Mayor and the Clerk are hereby authorized and directed to
execute and deliver the Placement Agreement in substantially the form herein approved with
such additions, deletions and modifications thereto as may be authorized by the Act, the
execution of the Placement Agreement being conclusive evidence of such approval and of the
approval of the Common Council.
Section 11. The Loan Agreement. The Loan Agreement is hereby approved in the form
submitted to this meeting, a copy of which shall be filed with the minutes of this meeting. The
Mayor and the Clerk are hereby authorized and directed to execute and deliver the Loan
Agreement in substantially the form herein approved with such additions, deletions and
modifications thereto as may be approved by them, the execution of the Loan Agreement being
conclusive evidence of such approval and of the approval of the Common Council.
Section 12. Tax Regulatory Agreement. The Tax Regulatory Agreement is hereby
approved in the form submitted to this meeting; a copy of which shall be filed with the minutes
of this meeting. The Mayor and the Clerk are hereby authorized and directed to execute and
deliver the Tax Regulatory Agreement in substantially the form herein approved with such
additions, deletions and modifications thereto as may be approved by them, the execution of the
Tax Regulatory Agreement being conclusive evidence of such approval and of the approval of
the Common Council. The Mayor and the Clerk are hereby authorized and directed to execute
and deliver on behalf of the City an Internal Revenue Service Form 8038 relating to the Bonds
prepared by Bond Counsel.
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Section 13. Preliminaa Placement Memorandum. The use by the Placement Agent of
the Preliminary Placement Memorandum in connection with the placement of the Bonds by the
Placement Agent is hereby approved, and the Common Council hereby authorizes the
preparation and use of a final Placement Memorandum containing such additions, deletions and
modifications to the Preliminary Placement Memorandum as may be approved by the counsel
for the City. The Mayor is hereby authorized and directed to execute and deliver the final
Placement Memorandum.
Section 14. Blue Sky Survey. The Mayor and the Clerk are hereby authorized in the
name and on behalf of the City to take any and all action which the Placement Agent shall
request and which the Mayor and the Clerk may deem necessary or advisable with the advice
of counsel for the City in order to effect the registration or qualification (or exemption
therefrom) of the Bonds for issue, offer, sale or trade under the Blue Sky or securities laws of
any of the states of the United States of America and in connection therewith, to execute,
acknowledge, verify, deliver, file or cause to be published any applications, reports, consents
to service of process and other papers and instruments which may be required under such laws,
and to take any and all further action which he may deem necessary or advisable in order to
maintain any such registration or qualification for as long as the Mayor and the Clerk deem
necessary or as required by law or by the Placement Agent, provided, however, the Mayor and
the Clerk not consent to service of process in any jurisdiction other than the State of Indiana.
Section 15. Other Action. The Mayor and the Clerk are hereby authorized and directed
to execute and deliver, in the name and on behalf of the City, any and all additional documents
and instruments necessary or proper to do and cause to be done any and all acts and things
necessary or proper for carrying out the transactions contemplated by this Ordinance (including
the preambles hereto and the documents mentioned herein) and the issuance and sale of the
Bonds and securing of the Bonds.
Section 16. No Personal Liability. No stipulation, obligation or agreement herein
contained or contained in the Indenture, the Placement Agreement, the Loan Agreement, the
Bonds or in any other agreement or document executed on behalf of the City shall be deemed
to be a stipulation, obligation or agreement of, any member of the Common Council, officer,
agent or employee of the Common Council in his individual capacity, and no such member of
the Common Council, officer, agent or employee shall be personally liable on the Bonds or be
subject to personal liability or accountability by reason of the issuance thereof.
Section 17. Action Approved and Confirmed. All acts and doings of the officers of the
City which are in conformity with the purposes and intent of this Ordinance and in the
furtherance of the issuance of the Bonds and the execution, delivery and performance of the
documents and agreements authorized hereby are in all respects approved and confirmed.
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Section 18. Severability. If any provision of this Ordinance shall be held or deemed to
be illegal, inoperative or unenforceable, the same shall not affect any other provision or cause
any other provisions to be invalid, inoperative or unenforceable to any extent whatsoever.
Section 19. Repealer: Effective Date. Any ordinances, resolutions or orders or parts
thereof in conflict with this Ordinance are to the extent of such conflict hereby repealed. This
Ordinance shall take effect immediately upon its adoption by the Common Council and approval
by the Mayor.
Section 20. Inspection Copies. Two copies of the Indenture, Loan Agreement, Tax
Regulatory Agreement, Placement Agreement, Preliminary Placement Memorandum
incorporated into this Ordinance were duly filed in the Office of the Clerk of the City and are
available for public inspection in accordance with Section 36 -1 -5 -4 of the Indiana Code.
10945.1
SOUTH BEND COMMON COUNCIL
Member
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Tommi##rr
Rio the (Somnton Monnrfl of thr Tult of oonth Wend:
Your Committee
of the Whole
to whom was referred
D T T T LTr%
87 -92 SECOND READING ON A BILL OF THE COMMON COUNIL OF THE CITY OF
SOUTH BEND, INDIANA, REGARDING THE ISSUANCE OF ECONOMIC
DEVELOPMENT REVENUE REFUNDING BONDS (REGENCY PLACE PROJECT).
Respectfully report that they have examined the matter and that in their opinion
This bill should be recommended to the Council favorable, by substitution.
Ann Puzzello
FREE ►REBS ruBLismme Co.
Chairman