HomeMy WebLinkAbout3D Trust Indenture - South Bend - Potawatomi Zoo Project 2022
TRUST INDENTURE
Between
CITY OF SOUTH BEND, INDIANA
And
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Dated March 1, 2022
Re:
$_________________
CITY OF SOUTH BEND, INDIANA
ECONOMIC DEVELOPMENT LEASE RENTAL REVENUE BONDS, SERIES 2022
(POTAWATOMI ZOO PROJECT)
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Table of Contents
Page
ARTICLE I. DEFINITIONS .............................................................................................. 4
Section 1.1 Terms Defined.................................................................................... 4
Section 1.2 Rules of Interpretation ..................................................................... 10
ARTICLE II THE BONDS ............................................................................................... 11
Section 2.1 Authorized Amount of Bonds .......................................................... 11
Section 2.2 Issuance of the Bonds ...................................................................... 11
Section 2.3 Payment of Principal and Interest on the Bonds .............................. 12
Section 2.4 Execution; Limited Obligation......................................................... 12
Section 2.5 Authentication .................................................................................. 13
Section 2.6 Delivery of Series 2022 Bonds ........................................................ 13
Section 2.7 Mutilated, Lost, Stolen or Destroyed Bonds .................................... 13
Section 2.8 Registration and Exchange of Bonds: Persons Treated as
Owners ............................................................................................. 14
Section 2.9 Provisions for Issuance of Additional or Refunding Bonds ............ 14
Section 2.10 Form of Additional Bonds ............................................................... 16
Section 2.11 Book-Entry System. ......................................................................... 16
ARTICLE III APPLICATION OF SERIES 2022 BOND PROCEEDS AND OTHER
FUNDS ............................................................................................................................. 19
Section 3.1 Deposit of Series 2022 Bond Proceeds and Other Funds. ............... 19
Section 3.2 Deposit of Proceeds of Additional Bonds. ....................................... 19
ARTICLE IV REVENUE AND FUNDS ......................................................................... 20
Section 4.1 Source of Payment of the Bonds ...................................................... 20
Section 4.2 Creation of Funds ............................................................................. 20
Section 4.3 Bond Fund. ....................................................................................... 20
Section 4.4 Deposit of Leased Rental Payments................................................. 21
Section 4.5 Construction Fund ............................................................................ 21
Section 4.6 Expense Fund. .................................................................................. 22
Section 4.7 Debt Service Reserve Fund .............................................................. 23
Section 4.8 Operation Fund ................................................................................ 28
Section 4.9 Rebate Fund ..................................................................................... 29
Section 4.10 Redemption and Purchase of Bonds ................................................ 29
Section 4.11 Trust Funds ...................................................................................... 29
Section 4.12 Investment ........................................................................................ 29
ARTICLE V REDEMPTION OF BONDS PRIOR TO MATURITY ............................. 30
Section 5.1 Redemption Dates and Prices .......................................................... 30
Section 5.2 Notice to Trustee of Intent to Redeem ............................................. 31
Section 5.3 Notice to Bondholders of Redemption............................................. 31
Section 5.4 Cancellation ..................................................................................... 32
Section 5.5 Redemption Payments...................................................................... 32
Section 5.6 Partial Redemption of Bonds ........................................................... 32
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ARTICLE VI GENERAL COVENANTS........................................................................ 33
Section 6.1 Payment of Principal and Interest .................................................... 33
Section 6.2 Performance of Covenants. .............................................................. 33
Section 6.3 Instruments of Further Assurance .................................................... 34
Section 6.4 Filing of Indenture and Security Instruments .................................. 34
Section 6.5 Leased Premises ............................................................................... 34
Section 6.6 List of Bondholders .......................................................................... 34
Section 6.7 Rights Under Financing Agreement and Lease ............................... 34
Section 6.8 Investment of Funds ......................................................................... 35
Section 6.9 Non-presentment of Bonds .............................................................. 35
Section 6.10 Destruction of Bonds ....................................................................... 36
Section 6.11 Issuer Indemnity ............................................................................... 36
Section 6.12 Tax Covenants; Issuance of Taxable Bonds. ................................... 36
ARTICLE VII DEFAULTS AND REMEDIES ............................................................... 38
Section 7.1 Events of Default ............................................................................. 38
Section 7.2 Remedies: Rights of Bondholders .................................................... 38
Section 7.3 Right of Bondholders to Direct Proceedings ................................... 39
Section 7.4 Application of Moneys..................................................................... 39
Section 7.5 Remedies Vested In Trustee ............................................................ 40
Section 7.6 Rights and Remedies of Bondholders .............................................. 40
Section 7.7 Termination of Proceedings ............................................................. 41
Section 7.8 Waivers of Events of Default ........................................................... 41
ARTICLE VIII THE TRUSTEE ...................................................................................... 42
Section 8.1 Acceptance of the Trusts .................................................................. 42
Section 8.2 Fees, Charges and Expenses of the Trustee ..................................... 44
Section 8.3 Notice to Bondholders if Default Occurs ......................................... 45
Section 8.4 Intervention by Trustee .................................................................... 45
Section 8.5 Successor Trustee ............................................................................. 45
Section 8.6 Resignation by the Trustee ............................................................... 45
Section 8.7 Removal of the Trustee .................................................................... 46
Section 8.8 Appointment of Successor Trustee by the Bondholders;
Temporary Trustee ........................................................................... 46
Section 8.9 Concerning Any Successor Trustees ................................................ 46
Section 8.10 Trustee Protected in Relying Upon Resolutions, etc. ...................... 46
Section 8.11 Conditions for Trustee Action.......................................................... 47
Section 8.12 Limitations on Trustee Duties .......................................................... 47
ARTICLE IX SUPPLEMENTAL INDENTURES .......................................................... 48
Section 9.1 Supplemental Indentures Not Requiring Consent of
Bondholders ..................................................................................... 48
Section 9.2 Supplemental Indentures Requiring Consent of Bondholders ......... 48
Section 9.3 Trustee Reliance ............................................................................... 49
ARTICLE X MISCELLANEOUS ................................................................................... 50
Section 10.1 Satisfaction and Discharge ............................................................... 50
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Section 10.2 Defeasance of Bonds ........................................................................ 50
Section 10.3 Application of Trust Money ............................................................. 51
Section 10.4 Consents, etc., of Bondholders ......................................................... 51
Section 10.5 Limitation of Rights ......................................................................... 52
Section 10.6 Severability ...................................................................................... 52
Section 10.7 Notices ............................................................................................. 52
Section 10.8 Counterparts ..................................................................................... 53
Section 10.9 Applicable Law ................................................................................ 53
Section 10.10 Immunity of Officers and Directors ................................................. 53
Section 10.11 Payments or Performance Due on Saturdays, Sundays and
Holidays ........................................................................................... 53
Section 10.12 Force Majeure .................................................................................. 54
EXHIBIT A FORM OF SERIES 2022 BONDS A-1
EXHIBIT B FORM OF DISBURSEMENT REQUEST FROM THE
CONSTRUCTION FUND B-1
EXHIBIT C COSTS OF ISSUANCE C-1
TRUST INDENTURE
THIS TRUST INDENTURE dated as of March 1, 2022, by and between the CITY OF
SOUTH BEND, INDIANA (the “Issuer” or “City”), a municipal corporation organized and
existing under the laws of the State of Indiana, and [U.S. BANK NATIONAL ASSOCIATION],
a banking association duly organized and authorized to accept and execute trusts of the character
herein, having a corporate trust office in the City of Indianapolis, Indiana, as trustee (the
“Trustee”);
WITNESSETH:
WHEREAS, IC 36-7-11.9 and 12, as supplemented and amended, authorize and empower
the Issuer to issue revenue bonds and to use the proceeds therefrom for the purpose of financing
economic development facilities and vests such Issuer with powers that may be necessary to enable
it to accomplish such purposes; and
WHEREAS, pursuant to this Indenture and the Financing Agreement dated as of March 1,
2022 (the “Financing Agreement”), by and among the Issuer, the City of South Bend Building
Corporation (the “Building Corporation”), and the Potawatomi Zoological Society, Inc., an Indiana
non-profit corporation (the “Corporation”) and in accordance with the Act, the Issuer intends to
issue its City of South Bend, Indiana, Economic Development Lease Rental Revenue Bonds,
Series 2022 (Potawatomi Zoo Project) in the aggregate principal amount of $__________ (the
“Series 2022 Bonds”), for the purpose of providing funds to (a) finance the costs of the Project
(defined herein), (b) fund the Debt Service Reserve Fund (defined herein) and (c) pay Costs of
Issuance (defined herein) related to the Series 2022 Bonds; and
WHEREAS, the execution and delivery of this Indenture and the issuance of revenue bonds
under the Act as herein provided have been in all respects duly and validly authorized by
proceedings duly passed on and approved by the Issuer; and
WHEREAS, after giving notice in accordance with the Act and IC 5-3-1-4, the South Bend
Economic Development Commission (the “Economic Development Commission”) held a public
hearing on behalf of the Issuer, and, upon finding that the Project and the proposed financing of a
portion of the costs thereof (i) will create or retain employment opportunities in and near the City;
(ii) will benefit the health and general welfare of the citizens of the City and the State of Indiana;
and (iii) will comply with the purposes and provisions of the Act, adopted a resolution approving
the proposed financing; and
WHEREAS, the Act provides that the Series 2022 Bonds may be secured by a trust
indenture between the Issuer and a corporate trustee; and
WHEREAS, to provide for the financing and construction of a portion of the Project, the
Building Corporation has entered into a Lease, dated as of December 1, 2021, among the Building
Corporation, as lessor, and the South Bend Redevelopment Commission (the “Redevelopment
Commission”), as lessee, as supplemented and amended by an Addendum to Lease dated as of
March __, 2022, between the Building Coporation, as lessor, and the Redevelopment Commission,
as lessee (collectively, the “Lease”); and
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WHEREAS, pursuant to IC 36-7-14-27, IC 36-7-14-25.2 and IC 36-7-14-25.3, the lease
rentals under the Lease (the “Lease Rental Payments”) are payable from a special tax levied and
collected by the Redevelopment Commission on all taxable property within the City of South Bend
Redevelopment District, or at the Redevelopment Commission’s option, any other revenues legally
available to the Redevelopment Commission; and
WHEREAS, in order to secure the payment of the Bonds, the Building Corporation has
assigned its rights under the Lease, including the right to receive the Lease Rental Payments, to
the Issuer pursuant to the terms of the Financing Agreement, and the Issuer now desires to assign
its rights under the Lease, including the right to receive the Lease Rental Payments, to the Trustee
pursuant to the terms of this Indenture; and
WHEREAS, pursuant to this Indenture, the Series 2022 Bonds shall be payable solely from
payments derived from Lease Rental Payments (defined herein) and proceeds from the Series 2022
Bonds; and
WHEREAS, the execution and delivery of this Trust Indenture, and the issuance of the
Series 2022 Bonds hereunder, have been in all respects duly and validly authorized by an ordinance
duly passed and approved by the Common Council of the Issuer; and
WHEREAS, the Bonds and the Trustee’s certificate of authentication to be endorsed
thereon are all to be substantially in the form provided in this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to secure the
payment of the principal of and interest on the Bonds to be issued under this Indenture according
to their tenor, purport and effect, and in order to secure the performance and observance of all the
covenants and conditions herein and in said Bonds contained, and in order to declare the terms and
conditions upon which the Bonds are issued, authenticated, delivered, secured and accepted by all
persons who shall from time to time be or become holders thereof, and for and in consideration of
the mutual covenants herein contained, of the acceptance by the Trustee of the trust hereby created,
and of the purchase and acceptance of the Bonds by the holders or obligees thereof, the Issuer has
executed and delivered this Indenture, and by these presents does hereby convey, grant, assign,
pledge and grant a security interest in, unto the Trustee, its successor or successors and its or their
assigns forever, with power of sale, all and singular, the property, real and personal hereinafter
described (the “Trust Estate”):
GRANTING CLAUSES
DIVISION I
All right, title, and interest of the Issuer in and to the Financing Agreement and the Lease
(except the rights reserved to the Issuer), including the all right, title, and interest of the Issuer in
the Lease Rental Payments; and
All right, title and interest of the Issuer in and to the Lease Rental Payments (such pledge
to be effective as set forth in IC 5-1-14-4 and IC 6-3.6-10-6 without filing or recording of this
Indenture or any other instrument);
DIVISION II
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All moneys and securities from time to time held by the Trustee under the terms of this
Indenture (except moneys or Qualified Investments deposited with the Trustee pursuant to Section
10.1 hereof and except moneys held in the Rebate Fund);
TO HAVE AND TO HOLD the same unto the Trustee, and its successor or successors and
its or their assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth, to secure the
payment of the Bonds to be issued hereunder and the interest payable thereon, and to secure also
the observance and performance of all the terms, provisions, covenants and conditions of this
Indenture, and for the equal and ratable benefit and security of all registered owners of all Bonds
issued or to be issued hereunder, without preference, priority or distinction as to lien or otherwise,
except as otherwise hereinafter provided, of any one Bond or as between principal and interest,
and it is hereby mutually covenanted and agreed that the terms and conditions upon which the
Bonds are to be issued, authenticated, delivered, secured and accepted by all persons who shall
from time to time be or become the holders thereof;
PROVIDED, HOWEVER, notwithstanding the foregoing, until all Affidavits of
Completion (as hereinafter defined) are filed with respect to the Project, or any portion thereof,
financed with the proceeds of a particular series of Additional Bonds, the Trust Estate with respect
to such series of Additional Bonds shall consist of only (i) the proceeds of such series of Additional
Bonds which are deposited into the accounts of the Funds established at the time such series of
Additional Bonds are issued, and (ii) any other funds specifically pledged to such series of
Additional Bonds in the supplemental indenture executed and delivered at the time such series of
Additional Bonds are issued.
PROVIDED FURTHER, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal of the Bonds and the interest and premium, if
any, due or to become due thereon, at the times and in the manner as set forth in said Bonds in
accordance with the terms hereof, and shall well and truly keep, perform and observe all covenants
and conditions pursuant to the terms of this Indenture to be kept, performed and observed by the
Issuer, and shall pay to the Trustee all sums of money due, or to become due to it, in accordance
with the terms and provisions hereof, then this Indenture and the rights hereby granted shall cease,
determine and be void, and the Trustee, in such case, on demand of the Issuer, upon the payment
by the Issuer to the Trustee of its reasonable fees, costs and expenses, shall execute and deliver to
the Issuer such discharges or satisfactions as shall be requisite to discharge the lien hereof and to
reconvey to or to revest in the Issuer the property hereby conveyed; otherwise, this Indenture to
be and remain in full force and effect.
All Bonds issued and secured hereunder are to be issued, authenticated and delivered, and
all property hereby pledged is to be dealt with and disposed of under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes as hereinafter expressed;
and the Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee
and with the respective registered owners, from time to time, of the Bonds or any part thereof, as
follows:
(End of Granting Clauses)
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ARTICLE I.
DEFINITIONS
Section 1.1 Terms Defined. In addition to the words and terms elsewhere defined in
this Indenture, the following words and terms as used in this Indenture shall have the following
meanings unless the context or use indicates another or different meaning or intent:
“Act” means, collectively, Indiana Code 36-7-11.9 and 36-7-12, as supplemented and
amended.
“Additional Bonds” means bonds issued pursuant to the Ordinance and Section 2.9 hereof
and any Supplemental Indenture and includes Refunding Bonds.
“Affidavit of Completion” means the affidavit to be filed by or on behalf of the Issuer with
the Trustee relating to the Project stating that the Project is substantially completed in accordance
with the terms of the Financing Agreement and is ready for use and occupancy.
“Annual Fees” means all of the Issuer’s expenses in carrying out and administering the
Bonds issued pursuant to this Indenture and shall include, without limiting the generality of the
foregoing, legal, accounting, management, consulting and banking services and expenses, fees and
expenses of the Trustee and the Registrar and Paying Agent, costs of verifications required
hereunder, and any other costs permitted under the Act, and rebates, if any, which in the opinion
of Bond Counsel are required to be made under the Code in order to preserve or protect the
exclusion from gross income for federal tax purposes of interest on the Bonds, all to the extent
properly allocable to the Bonds.
“Authorized Representative” means (i) with respect to the Issuer, the Mayor, the City
Clerk, the City Controller or the Deputy City Controller (or such other officer as the Issuer shall
notify the Corporation and the Trustee in writing as being an Authorized Representative, with
evidence of such authority); and (ii) with respect to the Corporation, the Executive Director or the
President of the Corporation (or such other officer as the Corporation shall notify the Issuer and
the Trustee in writing as being an Authorized Representative, with evidence of such authority).
“Bondholders” means registered owners of the Bonds.
“Bonds” means any Bonds issued pursuant to this Indenture, including the Series 2022
Bonds and any Additional Bonds.
“Bond Counsel” means Counsel that is nationally recognized in the area of municipal law
selected by the Issuer.
“Bond Fund” means the Bond Fund established by Section 4.2 of this Indenture.
“Bond Ordinance” means Ordinance No. __________, adopted by the Common Council
of the Issuer on [December ___,] 202[1], authorizing and approving the issuance and sale of the
Series 2022 Bonds, pledging the Lease Rental Payments to the payment of the principal of and
interest on the Series 2022 Bonds, and approving the forms of the Financing Agreement, this
Indenture and related matters.
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“Building Corporation” means City of South Bend Building Corporation, an Indiana non-
profit corporation, and its successors and assigns.
“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in the city in which the principal corporate trust office of the Trustee is located
or in New York City are not open for business.
“Clerk” means the Clerk of the Issuer.
“Code” means the Internal Revenue Code of 1986, as amended, the regulations (whether
proposed, temporary, or final) promulgated thereunder or the statutory predecessor thereof, and
any amendments of, or successor provisions to, the foregoing and any official rulings,
announcements, notices, procedures, and judicial determinations, regarding any of the foregoing.
“Common Council” means the Common Council of the Issuer.
“Construction Fund” means the Construction Fund created and established pursuant to
Section 4.2 of this Indenture.
“Corporation” means Potawatomi Zoological Society, Inc., an Indiana non-profit
corporation, and its successors and assigns under the Financing Agreement.
“Costs of Issuance” means financial, legal, accounting, charges and expenses, and all other
fees, charges and expenses incurred in connection with the authorization, sale, issuance and
delivery of the Series 2022 Bonds, including, without limitation, the fees and expenses of the City,
counsel to the City, bond counsel, counsel to Corporation, if any, the municipal advisor to the City,
the Trustee, and any rating agency rating the Series 2022 Bonds.
“Counsel” means an attorney duly admitted to practice law before the highest court of any
state and approved by the Issuer.
“Credit Provider” means the issuer of any Debt Service Reserve Fund Credit Facility and
its successor in such capacity and their assigns. To qualify under this Indenture, the Credit
Provider providing such Debt Service Reserve Fund Credit Facility shall be an insurer whose
municipal bond insurance policies insuring the payment, when due, of the principal of and interest
on municipal bond issues results in such issues being rated, at the time of issuance of such Debt
Service Fund Credit Facility, in a Rating Category that is at least as high as the rating assigned to
the Bonds (to which Debt Service Fund Credit Facility relates) by the Rating Agency or Rating
Agencies then maintaining a rating on the Bonds.
“Debt Service Reserve Fund” means the Debt Service Reserve Fund created and
established pursuant to Section 4.2 of this Indenture.
“Debt Service Reserve Fund Credit Facility” means any letter of credit, revolving credit
agreement, surety bond, insurance policy or other agreement or instrument issued or provided by
a Credit Provider, (i) which may be deposited in a reserve account in the Debt Service Reserve
Fund in lieu of or in partial substitution for cash or Qualified Investments to be on deposit therein,
and (ii) which shall be payable (upon the giving of notice as required thereunder) on any due date
on which moneys will be required to be withdrawn from such reserve fund in which such Debt
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Service Reserve Credit Facility is deposited and applied to the payment of the principal of or
interest on any Bonds.
“Debt Service Reserve Fund Reimbursement Obligation” shall mean any obligation to
reimburse the Credit Provider of any Debt Service Reserve Fund Credit Facility for any payment
made under such Debt Service Reserve Fund Credit Facility or any other obligation to repay any
amounts (including, but not limited to, fees or additional interest) to the Credit Provider.
“Debt Service Reserve Requirement” means an amount equal to but not in excess of the
least of (i) the maximum annual principal and interest payments on the Bonds; (ii) 10% of the par
amount of the Bonds; or (iii) 125% of the average annual principal and interest on the Bonds.
“Depository Company” or “Depository” means The Depository Trust Company, New
York, New York, and its successors and assigns, including any surviving, resulting or transferee
corporation, or any successor corporation that may be appointed in a manner consistent with this
Indenture and shall include any direct or indirect participants of The Depository Trust Company.
“Economic Development Commission” means the South Bend Economic Development
Commission.
“Electronic Means” shall mean the following communication methods: a portable
document (“pdf”) or other replicating image attached to an unsecured e-mail, facsimile
transmission, secure electronic transmission containing applicable authorization codes, passwords
and/or authentication keys issued by the Trustee or another method or system specified by the
Trustee as available for use in connection with its services under this Indenture.
“Event of Default” means those events of default specified in and defined by Section 7.1
hereof.
“Expense Fund” means the Expense Fund created and established pursuant to Section 4.2
of this Indenture.
“Financing Agreement” means the Financing Agreement, dated as of March 1, 2022, by
and among the Corporation, the Building Corporation, and the Issuer and all amendments and
supplements thereto. The Issuer has delivered a copy of such Financing Agreement to the Trustee.
“Fitch” means Fitch Ratings, or any successor thereof which qualifies as a Rating Agency
hereunder.
“Government Obligations” shall mean (i) direct obligations of the United States of
America or obligations the payment of the principal of and interest on which are unconditionally
guaranteed by the United States of America, including, but not limited to, securities evidencing
ownership interests in such obligations or in specified portions thereof (which may consist of
specific portions of the principal of or interest on such obligations) and (ii) obligations of any state
of the United States of America or any political subdivision thereof, the full payment of principal
of, premium, if any, and interest on which (a) are unconditionally guaranteed or insured by the
United States of America, or (b) are provided for by an irrevocable deposit of securities described
in clause (a) and are not subject to call or redemption by the issuer thereof prior to maturity or for
which irrevocable instructions to redeem have been given.
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“Indenture” means this Indenture as originally executed or as it may from time to time be
amended or supplemented pursuant to Article IX.
“Interest Payment Date” means, with respect to any Bonds, each February 1 and August 1,
commencing _____________ 1, 202__.
“Issuer” or “City” means the City of South Bend, Indiana, a municipal corporation
organized and validly existing under the laws of the State.
“Lease” means the Lease, dated as of December 1, 2021, among the Building Corporation,
as lessor, and the Redevelopment Commission, as lessee, as supplemented and amended by an
Addendum to Lease dated as of March ______, 2021, between the Building Corporation, as lessor,
and the Redevelopment Commission, as lessee, and all amendments and supplements thereto.
“Lease Rental Payments” means lease rental payments made by the Redevelopment
Commission as a lessee under the Lease.
“Leased Premises” means the Premises as such term is defined in the Lease.
“Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereof which
qualifies as a Rating Agency hereunder.
“Net Proceeds” means the proceeds received from the sale of Series 2022 Bonds less any
underwriting or other discount.
“Opinion of Bond Counsel” means a written opinion of Bond Counsel which opinion is
acceptable to the Issuer and the scope of which is set forth in the Section of this Indenture requiring
the delivery of such opinion.
“Paying Agent” shall mean any bank or trust company at which principal of the Bonds is
payable, which initially is U.S. Bank National Association, in Indianapolis, Indiana.
“Project” means the construction, renovation, equipping, furnishing and improving of the
Potawatomi Zoo, located at 500 South Greenlawn Avenue within the City (the “Zoo”), including,
without limitation, all or any portion of the following: (i) the renovation, construction and
equipping of a new lion habitat to include a new rock façade, new fencing and a new visitor
viewing area; (ii) the construction, equipping and furnishing a new concession and dining facility
in the North American portion of the Zoo, permitting visitors to view a newly constructed black
bear habitat which will permit the introduction of a new species for the Zoo; (iii) replacement of
the existing corporate and family picnic area with a new covered pavilion along with a new kitchen
area and new fencing, pathways and storage areas; (iv) renovation of the North American animal
habitats to meet modern Zoo standards including without limitation the construction and equipping
of a new holding barn in the center and the installation of new fencing and habitat esthetics; and
(v) the construction and equipping of a new Tiger habitat to meet current accreditation standards
for zoos which will include the construction of a new, modern habitat within a portion of
Potawatomi Park land not currently being utilized by the Zoo.
“Qualified Investments” shall mean any of the following to the extent permitted by law: (i)
Government Obligations; (ii) other investments permitted by Indiana Code 5-3, as amended from
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time to time; (iii) money market funds, which may be funds of the Trustee, the assets of which are
obligations of or guaranteed by the United States of America and which funds are rated at the time
of purchase “Am” or “Am-G” or higher by Standard & Poor’s Ratings Services, Inc. and/or “Aaa”
by Moody’s Investors Service, Inc.; (iv) bonds, debentures, notes or other evidence of indebtedness
issued or guaranteed by any of the following federal agencies: Export-Import Bank, Farmers Home
Administration, Federal Financing Bank, Federal Housing Administration, Government National
Mortgage Association, Maritime Administration, Public Housing Authorities, Banks for
Cooperatives, and Farm Credit Banks; (v) unsecured certificates of deposit, demand deposits, time
deposits and bankers’ acceptances of any depository institution or trust company (including the
Trustee and its affiliates) the short term obligations of which are rated "A-1" or better by Standard
and Poor's Ratings Group; (vi) bankers’ acceptances, deposit accounts or certificates of deposit of
commercial banks or savings and loan associations, including the Trustee, which mature not more
than one (1) year after the date of purchase; provided the banks or savings and loan associations
(rather than their holding companies) are rated for unsecured debt at the time of purchase of the
investments in one (1) of the two highest full classifications established by Moody’s Investors
Service, Inc. and Standard & Poor’s Ratings Services, Inc.; (vii) U.S. dollar denominated deposit
accounts or commercial paper rated at the time of purchase in the single highest full classification
by Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services, Inc. and which
matures not more than two hundred seventy (270) days after the date of purchase; (viii) investment
agreements fully and properly secured at all times by collateral security described in (i), (iv) or (v)
above; and (ix) repurchase agreements with any bank or trust company organized under the laws
of any state of the United States of America or any national banking association (including the
Trustee) or government bond dealer reporting to, trading with, and recognized as a primary dealer
by the Federal Reserve Bank of New York, which agreement is secured by any one or more of the
securities described in clauses (i), (iv) or (v) above; provided, underlying securities are required
by the repurchase agreement to be continuously maintained at a market value not less than the
amount so invested; and (x) shares of an investment company, organized under the Investment
Company Act of 1940, as amended, which invests its assets solely in the obligations described in
(i) and (ix) above, which would be regarded by prudent businessmen as a safe investment (the fact
that the Trustee, any affiliate of the Trustee is providing services to and receiving remuneration
from the foregoing investment company or trust as investment advisor, custodian, transfer agent,
registrar or otherwise shall not preclude the Trustee from investing in the securities of such
investment company or investment trust).
“Rating Agency” or “Rating Agencies” means Fitch, S&P or Moody’s, according to which
of such rating agencies then rates a Bond; and provided that, if none of such rating agencies then
rates a Bond, the term “Rating Agency” or “Rating Agencies” shall refer to any national rating
agency (if any) that provides such rating.
“Rating Category” means one of the generic rating categories of the applicable Rating
Agency, without regard to any refinements or gradations of such generic rating category by
numerical or other modifier.
“Record Date” means the fifteenth day of the month immediately preceding any Interest
Payment Date.
“Refunding Bonds” means Additional Bonds issued pursuant to Section 2.9 hereof and any
Supplemental Indenture for the purpose of refunding any Bonds which are outstanding hereunder.
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“Registrar” means initially U.S. Bank National Association, in Indianapolis, Indiana, a
national banking association organized and existing under the laws of the United States of America
or any successor thereto.
“Requisite Bondholders” means the holders of 66-2/3% in aggregate principal amount of
Bonds.
“Responsible Officer” means any officer within the corporate trust department of the
Trustee, including any vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily performs functions
similar to those performed by the persons who at the time shall be such officers, respectively, or
to whom any corporate trust matter is referred because of such person’s knowledge of and
familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
S&P?
“Series of Bonds” or “Bonds of a Series” or “Series” or words of similar meaning means
any Series of Bonds authorized by this Indenture or by a Supplemental Indenture.
“Series 2022 Bonds” means the City of South Bend, Indiana, Economic Development
Lease Rental Revenue Bonds, Series 2022 (Potawatomi Zoo Project), dated March ___, 2022,
issued in the aggregate principal amount of $_________, authorized pursuant to Section 2.1 hereof.
“Series 2022 Credit Provider” means ________________ which constitutes a Credit
Provider (as defined in this Indenture).
“Series 2022 Debt Service Reserve Fund Credit Facility” means the municipal bond debt
service reserve insurance policy provided by the Series 2022 Credit Provider for deposit into the
Debt Service Reserve Fund to satisfy the Debt Service Reserve Requirement with respect
thereto. The Series 2022 Debt Service Reserve Fund Credit Facility constitutes a Debt Service
Reserve Fund Credit Facility (as such term is defined and used in this Indenture) at the time of
issuance thereof.
“Sinking Fund” shall have the meaning given in Section 3.02 hereof.
“State” means the State of Indiana.
“Supplemental Indenture” or “supplemental indenture” shall mean an indenture
supplemental to or amendatory of this Indenture, executed by the Issuer and the Trustee in
accordance with Article IX.
“Trustee” means U.S. Bank National Association, a national banking association with a
designated trust office in the City of Indianapolis, Indiana, and any successor trustee or co-trustee.
“Trust Estate” shall have the meaning ascribed to such term in the Granting Clauses of this
Indenture.
“Zoo” means the Potawatomi Zoo located at 500 Greenlawn Avenue in the City.
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Section 1.2 Rules of Interpretation. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) “This Indenture” means this instrument as originally executed and as it may from
time to time be supplemented or amended pursuant to the applicable provisions hereof.
(b) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as
originally executed. The words “herein,” “hereof and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular and the singular as well as the plural.
(d) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
(e) Any terms not defined herein but defined in the Bond Ordinance or the Financing
Agreement shall have the same meaning herein.
(f) The terms defined elsewhere in this Indenture shall have the meanings therein
prescribed for them.
(g) The word “including” and any variation thereof means “including, without
limitation” and must not be construed to limit any general statement that it follows to the specific
or similar items or matters immediately following it.
(h) Where a term is defined, another part of speech or grammatical form of that term
shall have a corresponding meaning.
(End of Article I)
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ARTICLE II
THE BONDS
Section 2.1 Authorized Amount of Bonds. No Bonds may be issued under the
provisions of this Indenture except in accordance with this Article. The principal amount of the
Series 2022 Bonds (other than Bonds issued in substitution therefor pursuant to Section 2.8 hereof)
that may be issued is hereby expressly limited to $________________.
Section 2.2 Issuance of the Bonds.
(a) The Series 2022 Bonds shall be designated “City of South Bend, Indiana, Economic
Development Lease Rental Revenue Bonds, Series 2022 (Potawatomi Zoo Project),” and shall
have such terms, conditions and characteristics as specified in the form of the Series 2022 Bonds
attached as Exhibit A hereto and made a part hereof. The Series 2022 Bonds shall be numbered
from 22R-1 upwards; provided, however, that the Series 2022 Bonds may be numbered in any
other manner acceptable to the Trustee and the Issuer.
(b) The Series 2022 Bonds shall be originally issuable as fully registered Bonds
without coupons in denominations of $5,000 or any integral multiples thereof.
(c) The Series 2022 Bonds shall be dated as of the date of their delivery. Interest shall
be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) thirty
(30) day months. The interest on the Series 2022 Bonds shall be payable on each February 1 and
August 1, commencing on February 1, 2019. The Series 2022 Bonds shall bear interest from the
Interest Payment Date next preceding the date of authentication thereof, unless such date of
authentication shall be subsequent to a Record Date in which case they shall bear interest from
such Interest Payment Date.
(d) The Series 2022 Bonds shall mature on February 1 and/or August 1 in the years and
in the principal amounts, and shall bear interest at the rates per annum all as set forth below:
Maturity
Date Amount
Interest
Rate
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Section 2.3 Payment of Principal and Interest on the Bonds. The interest on the Bonds
shall be payable by check or draft mailed on the Interest Payment Date to the person in whose
name each Bond is registered as of the Record Date for such Interest Payment Date at each address
as it appears on the registration and transfer books maintained by the Registrar or at such other
address as is provided to the Trustee, the Registrar and the Paying Agent in writing by such
registered owner. Each registered owner of $1,000,000 or more in principal amount of Bonds shall
be entitled to receive principal and interest payments by wire transfer by providing written wire
instructions to the Trustee, the Registrar and the Paying Agent before the Record Date for such
payment. The final payment of principal and interest on the Bonds shall be payable in lawful
money of the United States of America, at the designated corporate trust office of the Paying Agent
located in St. Paul, Minnesota. Principal payments in connection with mandatory sinking fund
redemption hereunder shall not require presentation of the Bonds for payment.
All Series 2022 Bonds shall be canceled upon their payment by the Paying Agent and destroyed
in accordance with the Paying Agent’s destruction policy then in effect.
Section 2.4 Execution; Limited Obligation. The Bonds shall be executed on behalf of
the Issuer with the manual or facsimile signature of the Mayor of the City and attested with the
manual or the facsimile signature of its Clerk and shall have impressed or printed thereon the
corporate seal of the Issuer. Such facsimiles shall have the same force and effect as if such officer
had manually signed each of said Bonds. In case any officer whose signature or facsimile signature
shall appear on the Bonds shall cease to be such officer before the delivery of such Bonds, such
signature or such facsimile shall, nevertheless, be valid and sufficient for all purposes, the same as
if he had remained in office until delivery.
The Bonds, and the interest payable thereon, do not and shall not represent or
constitute a debt of the Issuer, the State of Indiana or any political subdivision or taxing
authority thereof within the meaning of the provisions of the constitution or statutes of the
State of Indiana or a pledge of the faith and credit of the Issuer, the State of Indiana or any
political subdivision or taxing authority thereof. The Bonds, as to both principal and interest,
are not an obligation or liability of the Issuer, the State of Indiana, or of any political
subdivision or taxing authority thereof, but are a special limited obligation of the Issuer and
are payable solely and only from the Trust Estate (including funds and accounts held under
this Indenture and the Lease Rental Payments pledged under the Financing Agreement
pledged and assigned for such purpose in accordance with the terms of the Indenture)
pledged and assigned for their payment in accordance with this Indenture. Neither the faith
and credit nor the taxing power of the Issuer, the State of Indiana or any political subdivision
or taxing authority thereof is pledged to the payment of the principal of or the interest on
the Bonds. The Bonds do not grant the owners or holders thereof any right to have the Issuer,
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the State of Indiana or its General Assembly, or any political subdivision or taxing authority
of the State of Indiana, levy any taxes or appropriate any funds for the payment of the
principal of or interest on the Bonds. No covenant or agreement contained in the Bonds or
this Indenture shall be deemed to be a covenant or agreement of any member, director,
officer, agent, attorney or employee of the Economic Development Commission, the
Redevelopment Commission, or the Issuer in his or her individual capacity, and no member,
director, officer, agent, attorney or employee of the Economic Development Commission or
the Issuer executing the Bonds shall be liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the issuance of the Bonds. Under no
circumstances shall the Corporation be liable for making any payments due under this
Indenture or on the Bonds, including any payment of principal of, premium, if any, or
interest on the Bonds.
Section 2.5 Authentication. No Bond shall be valid or obligatory for any purpose or
entitled to any security or benefit under this Indenture unless and until the certificate of
authentication on such Bond substantially in the form hereinafter set forth shall have been duly
executed by the Trustee, and such executed certificate of the Trustee upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and delivered under this Indenture.
The Trustee’s certificate of authentication on any Bond shall be deemed to have been executed by
it if signed by an authorized officer of the Trustee, but it shall not be necessary that the same officer
sign the certificate of authentication on all of the Bonds issued hereunder.
Section 2.6 Delivery of Series 2022 Bonds. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver the Series 2022 Bonds to the Trustee in the aggregate
principal amount authorized in Section 2.1 hereof. The Trustee shall authenticate such Series
2022 Bonds and deliver them to the purchasers thereof upon receipt of the items set forth below
other than (e) below:
(a) A copy of the Bond Ordinance, duly certified by the Clerk.
(b) A copy, duly certified by the Secretary of the Redevelopment Commission, of the
resolution approving the execution of the Lease.
(c) Executed counterparts of the Financing Agreement and this Indenture.
(d) A written request of the Issuer to the Trustee requesting the Trustee to authenticate,
or cause to be authenticated, and deliver the Series 2022 Bonds to the purchasers thereof in the
aggregate principal amount authorized in Section 2.1 hereof.
(e) An opinion of nationally recognized Bond Counsel in a form acceptable to the
Issuer.
(f) Such other documents as shall be required by Bond Counsel or the Issuer.
The proceeds of the Series 2022 Bonds shall be paid over to the Trustee and deposited to
the credit of various Funds as hereinafter provided under Article III hereof.
Section 2.7 Mutilated, Lost, Stolen or Destroyed Bonds. In the event any Bond is
mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee may authenticate a new
14
Bond of like date, maturity and denomination as that mutilated, lost, stolen or destroyed; provided
that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the Issuer,
and in the case of any lost, stolen or destroyed Bond, there shall be first furnished to the Trustee
evidence of such loss, theft or destruction satisfactory to the Trustee, together with indemnity
satisfactory to it.
In the event any such Bond shall have matured, instead of issuing a duplicate Bond the
Issuer may pay the same without surrender thereof; provided, however, that in the case of a lost,
stolen or destroyed Bond, there shall be first furnished to the Trustee evidence of such loss, theft
or destruction satisfactory to the Trustee, together with indemnity satisfactory to it. The Trustee
may charge the holder or owner of such Bond with its reasonable fees and expenses in this
connection. Any Bond issued pursuant to this Section 2.7 shall be deemed part of the original
series of Bonds in respect of which it was issued and an original additional contractual obligation
of the Issuer.
Section 2.8 Registration and Exchange of Bonds: Persons Treated as Owners. The
Issuer shall cause books for the registration and for the transfer of the Bonds as provided in this
Indenture to be kept by the Trustee which is hereby constituted and appointed the registrar of the
Issuer. Upon surrender for transfer of any fully registered Bond at the principal office of the
Trustee, duly endorsed by, or accompanied by a written instrument or instruments of transfer in
form satisfactory to the Trustee and duly executed by the registered owner or his attorney duly
authorized in writing, the Issuer shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new fully registered Bond or Bonds of the same series and
the same maturity for a like aggregate principal amount. The execution by the Issuer of any fully
registered Bond without coupons of any denomination shall constitute full and due authorization
of such denomination, and the Trustee shall thereby be authorized to authenticate and deliver such
registered Bond. The costs of such transfer or exchange shall be borne by the Issuer. The Trustee
shall not be required to transfer or exchange any fully registered Bond during the period between
the Record Date and any interest payment date of such Bond, nor to transfer or exchange any Bond
after the mailing of notice calling such Bond for redemption has been made, nor during a period
of fifteen (15) days next preceding mailing of a notice of redemption of any Bonds.
As to any fully registered Bond without coupons, the person in whose name the same shall
be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and
payment of principal or interest thereon shall be made only to or upon the order of the registered
owner thereof or his legal representative, but such registration may be changed as hereinabove
provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon
such Bond to the extent of the sum or sums so paid.
Section 2.9 Provisions for Issuance of Additional or Refunding Bonds. One or more
Series of Bonds in addition to the Series 2022 Bonds (“Additional Bonds”), may be authenticated
and delivered from time to time for one or more of the purposes of (i) refunding all or a portion of
one or more series of Bonds outstanding hereunder, if such Bonds may otherwise be refunded, and
(ii) financing the cost or estimated cost of completing the Project or of acquiring and/or
constructing additional improvements to the Project, and, in each case, obtaining additional funds
to pay the costs to be incurred in connection with the issuance of such Additional Bonds, to
establish reserves with respect thereto and to pay interest during the estimated construction period
of completing the additional improvements, if any.
15
Prior to the delivery by the Issuer of any such Additional Bonds there shall be filed with
the Trustee:
(a) A supplement to this Indenture executed by the Issuer and the Trustee authorizing
the issuance of such Additional Bonds, specifying the terms thereof, pledging and assigning the
Trust Estate, including the Lease Rental Payments, as security therefor and providing for the
disposition of the proceeds of the sale thereof.
(b) A copy of an ordinance, authorizing such Additional Bonds, duly certified by the
Clerk.
(c) If necessary, a supplement or amendment to the Lease.
(d) A report or a certificate prepared by an independent certified public accountant or
an independent financial advisor selected by the Issuer supported by appropriate calculations,
stating that the Additional Bonds may be amortized, along with the Series 2022 Bonds, from the
Lease Rental Payments.
(e) A written request of the Issuer to the Trustee to authenticate and deliver such
Additional Bonds.
(f) Evidence that the amount on deposit in the debt service reserve fund or account
allocable to such Additional Bonds will be not less than the reserve requirement for such debt
service reserve fund or account in effect upon the delivery of such Additional Bonds.
(g) An opinion of Bond Counsel acceptable to the Issuer to the effect that (i) such
supplement to this Indenture has been duly executed by the Issuer and constitutes the valid and
binding obligation of the Issuer enforceable against the Issuer in accordance with its terms; and
(ii) the Additional Bonds have been duly and validly authorized and issued by the Issuer and
constitute the valid and binding limited obligations of the Issuer enforceable against the Issuer in
accordance with their terms. The opinion of Bond Counsel may be qualified as to such matters as
are acceptable to the Issuer, and include, without limitation, customary exceptions as to
bankruptcy, insolvency and other laws affecting creditors’ rights generally and customary
exceptions as to principles of equity.
Any Additional Bonds issued in accordance with the terms of this Section 2.9 shall be
secured by this Indenture and shall be equally and ratably payable from the Lease Rental Payments,
on parity with the pledge thereof to the Series 2022 Bonds, but such Additional Bonds may bear
such date or dates, such interest rate or rates, and with such maturities, redemption dates and
premiums as may be agreed upon by the Issuer and the purchaser of such Additional Bonds, subject
to any limitations or requirements set forth in Section 6.6 hereof.
Any Additional Bonds issued for the purpose of refunding any Bonds outstanding
hereunder may be authenticated and delivered only upon receipt by the Trustee (in addition to the
receipt by them of the documents required by Section 2.6 and this Section 2.9 hereof) of:
(i) Irrevocable instructions from the Issuer to the Trustee, satisfactory to it, to
give due notice of redemption of all the Bonds to be refunded on the redemption date
specified in such instructions;
16
(ii) Irrevocable instructions from the Issuer to the Trustee, satisfactory to it, to
mail the notice provided for in Article V to the owners of the Bonds being refunded;
(iii) Either (1) moneys in an amount sufficient to effect payment at the
applicable Redemption Price or principal payment amount of the Bonds to be refunded or
paid, respectively, together with accrued interest on such Bonds to the redemption or
maturity date, which moneys shall be held by the Trustee or any one or more of the Paying
Agents in a separate account irrevocably in trust for and assigned to the respective owners
of the Bonds to be refunded or paid, or (2) Governmental Obligations in such principal
amounts, of such maturities, bearing such interest, and otherwise having such terms and
qualifications, as shall be necessary to comply with the provisions of Article X hereof,
which Governmental Obligations shall be held in trust and used only as provided in said
Article X, or (3) any combination of cash and/or Governmental Obligations as described
in subparagraphs (1) or (2) above.
Section 2.10 Form of Additional Bonds. Additional Bonds shall be issued in the form
set forth in the Supplemental Indenture authorizing the issuance of such Series of Additional Bonds
with such appropriate variations, omissions and insertions as are permitted or required by this
Indenture or otherwise deemed necessary by the Issuer, the Trustee or the Registrar.
Section 2.11 Book-Entry System. The Issuer has determined that the Series 2022 Bonds
shall be held by a central depository system pursuant to an agreement between the Issuer and The
Depository Trust Company, and have transfers of the Series 2022 Bonds effected by book-entry
on the books of the central depository system. The Series 2022 Bonds shall be initially issued in
the form of a separate single authenticated fully registered Bond for the aggregate principal amount
of each separate maturity of the Series 2022 Bonds. Upon initial issuance, the ownership of such
Series 2022 Bonds shall be registered in the register kept by the Registrar in the name of CEDE &
CO., as nominee of The Depository Trust Company.
Notwithstanding any other provision hereof to the contrary, so long as any Series 2022
Bond is registered in the name of CEDE & CO. as nominee of the Depository Company, all
payments with respect to the principal of and premium, if any, and interest on such Series 2022
Bond and all notices with respect to such Series 2022 Bond shall be made and given, respectively,
to the Depository Company as provided in a representation letter from the Authority to the
Depository Company.
With respect to the Series 2022 Bonds registered in the register kept by the Paying Agent
in the name of CEDE & CO., as nominee of The Depository Trust Company, the Issuer and the
Paying Agent shall have no responsibility or obligation to any other holders or owners (including
any beneficial owner (“Beneficial Owner”), of the Series 2022 Bonds with respect to (i) the
accuracy of the records of The Depository Trust Company, CEDE & CO., or any Beneficial Owner
with respect to ownership questions, (ii) the delivery to any bondholder (including any Beneficial
Owner) or any other person, other than The Depository Trust Company, of any notice with respect
to the Series 2022 Bonds including any notice of redemption, or (iii) the payment to any
Bondholder (including any Beneficial Owner) or any other person, other than The Depository
Trust Company, of any amount with respect to the principal of, or premium, if any, or interest on
the Series 2022 Bonds, except as otherwise provided herein.
17
No person other than The Depository Trust Company shall receive an authenticated Series
2022 Bond evidencing an obligation of the Issuer to make payments of the principal of and
premium, if any, and interest on the Series 2022 Bonds pursuant to the Indenture. The Issuer and
the Registrar and Paying Agent may treat as and deem The Depository Trust Company or CEDE
& CO. to be the absolute bondholder of each of the Series 2022 Bonds for the purpose of (i)
payment of the principal of and premium, if any, and interest on such Series 2022 Bonds; (ii)
giving notices of redemption and other notices permitted to be given to Bondholders with respect
to such Bonds; (iii) registering transfers with respect to such Series 2022 Bonds; (iv) obtaining any
consent or other action required or permitted to be taken of or by Bondholders; (v) voting; and (vi)
for all other purposes whatsoever. The Paying Agent shall pay all principal of and premium, if
any, and interest on the Series 2022 Bonds only to or upon the order of The Depository Trust
Company, and all such payments shall be valid and effective fully to satisfy and discharge the
Issuer’s and the Paying Agent’s obligations with respect to principal of and premium, if any, and
interest on the Series 2022 Bonds to the extent of the sum or sums so paid. Upon delivery by The
Depository Trust Company to the Issuer of written notice to the effect that The Depository Trust
Company has determined to substitute a new nominee in place of CEDE & CO., and subject to the
provisions herein with respect to consents, the words “CEDE & CO.” in this Indenture shall refer
to such new nominee of The Depository Trust Company. Notwithstanding any other provision
hereof to the contrary, so long as any Series 2022 Bond is registered in the name of CEDE & CO.
as nominee of The Depository Trust Company, all payments with respect to the principal of and
premium, if any, and interest on such Series 2022 Bond and all notices with respect to such Series
2022 Bond shall be made and given, respectively, to The Depository Trust Company as provided
in a representation letter from the Issuer to The Depository Trust Company.
Upon receipt by the Issuer of written notice from The Depository Trust Company to the
effect that The Depository Trust Company is unable or unwilling to discharge its responsibilities
and no substitute depository willing to undertake the functions of The Depository Trust Company
hereunder can be found which is willing and able to undertake such functions upon reasonable and
customary terms, then the Series 2022 Bonds shall no longer be restricted to being registered in
the register of the Issuer kept by the Registrar in the name of CEDE & CO., as nominee of The
Depository Trust Company, but may be registered in whatever name or names the Bondholders
transferring or exchanging Series 2022 Bonds shall designate, in accordance with the provisions
of the Indenture.
If the Issuer determines that it is in the best interest of the Bondholders that they be able to
obtain certificates for the fully registered Series 2022 Bonds, the Issuer may notify The Depository
Trust Company and the Registrar, whereupon The Depository Trust Company will notify the
Beneficial Owners of the availability through The Depository Trust Company of certificates for
the Series 2022 Bonds. In such event, the Registrar shall prepare, authenticate, transfer and
exchange certificates for the Series 2022 Bonds as requested by The Depository Trust Company
and any Beneficial Owners in appropriate amounts, and whenever The Depository Trust Company
requests the Issuer and the Registrar to do so, the Registrar and the Issuer will cooperate with The
Depository Trust Company by taking appropriate action after reasonable notice (i) to make
available one or more separate certificates evidencing the fully registered Series 2022 Bonds of
any Beneficial Owner’s Depository Trust Company account or (ii) to arrange for another securities
depository to maintain custody of certificates for and evidencing the Series 2022 Bonds.
18
If the Series 2022 Bonds shall no longer be restricted to being registered in the name of a
depository trust company, the Registrar shall cause the Series 2022 Bonds to be printed in blank
in such number as the Registrar shall determine to be necessary or customary; provided, however,
that the Registrar shall not be required to have such Bonds printed until it shall have received from
the Issuer indemnification for all costs and expenses associated with such printing.
In connection with any notice or other communication to be provided to Bondholders by
the Issuer or the Registrar with respect to any consent or other action to be taken by Bondholders,
the Issuer or the Registrar, as the case may be, shall establish a record date for such consent or
other action and give The Depository Trust Company notice of such record date not less than
fifteen (15) calendar days in advance of such record date to the extent possible.
So long as the Series 2022 Bonds are registered in the name of The Depository Trust
Company or CEDE & CO. or any substitute nominee, the Issuer and the Registrar and Paying
Agent shall be entitled to request and to rely upon a certificate or other written representation from
the Beneficial Owners of the Series 2022 Bonds or from The Depository Trust Company on behalf
of such Beneficial Owners stating the amount of their respective beneficial ownership interests in
the Series 2022 Bonds and setting forth the consent, advice, direction, demand or vote of the
Beneficial Owners as of a record date selected by the Registrar and The Depository Trust
Company, to the same extent as if such consent, advice, direction, demand or vote were made by
the Bondholders for purposes of this Indenture and the Issuer and the Registrar and Paying Agent
shall for such purposes treat the Beneficial Owners as the Bondholders. Along with any such
certificate or representation, the Registrar may request The Depository Trust Company to deliver,
or cause to be delivered, to the Registrar a list of all Beneficial Owners of the Bonds, together with
the dollar amount of each Beneficial Owner’s interest in the Series 2022 Bonds and the current
addresses of such Beneficial Owners.
If the Book Entry System is no longer in effect, registered owners of Series 2022
Bonds may, upon surrender thereof at the principal corporate trust office of the Trustee with a
written instrument of transfer satisfactory to the Trustee, exchange a Series 2022 Bond or Series
2022 Bonds for a bond or bonds of equal aggregate principal amount of the same maturity and
interest rate of any authorized denominations. For every exchange or transfer of Series 2022
Bonds, the Trustee may make a charge sufficient to reimburse it for any tax, fee or other
governmental charge required to be paid with respect to such exchange or transfer, which shall be
paid by the person requesting such exchange or transfer as a condition precedent to the exercise of
the privilege of making such exchange or transfer. The cost of preparing each new Series 2022
Bond upon each exchange or transfer, and any other expenses of the Trustee incurred in connection
therewith (except any applicable tax, fee or other governmental charge) shall be paid by the Issuer.
The Trustee shall not be obliged to make any transfer or exchange of any Series 2022 Bond called
for redemption within thirty days of the redemption date.
(End of Article II)
19
ARTICLE III
APPLICATION OF SERIES 2022 BOND PROCEEDS AND OTHER FUNDS
Section 3.1 Deposit of Series 2022 Bond Proceeds and Other Funds. The Issuer shall
deposit with the Trustee the Net Proceeds from the sale of the Series 2022 Bonds, which consists
of an amount equal to $_____________ (which amount represents the par amount of the Series
2022 Bonds ($_____________), plus original issue premium ($_____________), less an
underwriter’s discount ($______________) to be retained by the Underwriter, and less the
premium for the Series 2022 Debt Service Reserve Fund Credit Facility allocable to the Series
2022 Bonds to be paid to by the Underwriter directly to the Series 2022 Credit Provider, for and
on behalf of the Issuer ($_____________________)) and the Trustee shall deposit the Net
Proceeds and the Issuer Funds as follows
(a) $_______________ of such amount shall be deposited into the Construction Fund
and disbursed therefrom for the purposes described in Section 4.5(b) hereof; and
(b) $_______________ (constituting the remainder of the Net Proceeds of the Series
2022 Bonds) shall be deposited into the Expense Fund and disbursed therefrom for the purposes
described in Section 4.6(b) hereof.
Section 3.2 Deposit of Proceeds of Additional Bonds. The Trustee shall deposit the net
proceeds of any subsequent Series of Bonds as provided in the Supplemental Indenture for that
Series of Bonds.
(End of Article III)
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ARTICLE IV
REVENUE AND FUNDS
Section 4.1 Source of Payment of the Bonds. The Bonds herein authorized and all
payments to be made by the Issuer hereunder are not general obligations of the Issuer but are
limited obligations payable solely from the Lease Rental Payments pledged and assigned for their
payment in accordance with this Indenture and the Bond Ordinance. No covenant or agreement
contained in the Bonds or this Indenture shall be deemed to be a covenant or agreement of any
member, director, officer, agent, attorney or employee of the Issuer in his or her individual
capacity, and no member, director, officer, agent, attorney, or employee of the Issuer executing
the Bonds shall be liable personally on the Bonds or be subject to any personal liability or
accountability by reason of the issuance of the Bonds.
Section 4.2 Creation of Funds. There are hereby created and ordered established the
following funds and accounts to be held by the Trustee:
(a) the Bond Fund;
(b) the Construction Fund;
(c) the Expense Fund;
(d) the Debt Service Reserve Fund; and
(e) the Rebate Fund.
Upon the written request of the Issuer, the Trustee shall establish and maintain hereunder
such additional funds, accounts or subaccounts as the Issuer may specify from time to time to the
extent that in the judgment of the Trustee the establishment of such funds, accounts or subaccounts
are not to the material prejudice of the Trustee or the Bondholders
Section 4.3 Bond Fund.
(a) There shall be deposited in the Bond Fund, as and when received, (i) the required
deposits of Lease Rental Payments pursuant to Section 4.4 hereof; (ii) any amount remaining in
the Construction Fund to be transferred to the Bond Fund pursuant to the Indenture; (iii) all interest
and other income derived from investments of Bond Fund moneys as provided herein; and (v) all
other moneys received by the Trustee under and pursuant to any of the provisions of the Financing
Agreement which are required or which are accompanied by directions that such moneys are to be
paid into the Bond Fund. The Issuer hereby covenants and agrees that so long as any of the Bonds
issued hereunder are outstanding it will deposit, or cause to be paid to Trustee for deposit in the
Bond Fund for its account, sufficient sums from revenues and receipts derived from the Lease
Rental Payments promptly to meet and pay the principal of, premium, if any, and interest on the
Bonds as the same become due and payable. Nothing herein should be construed as requiring the
Issuer to deposit or cause to be paid to Trustee for deposit in the Bond Fund, funds from any source
other than receipts derived from the Lease Rental Payments and amounts on deposit in the Debt
Service Reserve Fund.
21
(b) The Building Corporation shall cause to be transferred immediately upon receipt
the Lease Rental Payments to the Trustee as set forth in Section 4.4. The Trustee is hereby directed
to deposit into the Bond Fund from each Lease Rental Payment, an amount equal to the lesser of
the following: (a) all of such rental payment; or (b) an amount which equals the sum of the
principal and interest on the Bonds due on, before or within twenty (20) days after the date such
Lease Rental Payment becomes due. Any portion of a rental payment remaining after such deposit
shall be applied by the Trustee pursuant to Section 4.4(b) hereof.
(c) The Trustee is hereby directed to deposit any Lease Rental Payments received into
the Bond Fund in the manner prescribed in this Section 4.3 and in Section 4.4 hereof. Moneys in
the Bond fund shall be used by the Trustee to pay the interest on and principal of the Bonds as the
same becomes due at maturity, redemption or upon acceleration. If necessary, the Trustee shall
transmit such funds to the Paying Agent for any series of Bonds in sufficient time to ensure that
such interest will be paid as it becomes due.
Section 4.4 Deposit of Leased Rental Payments.
(a) On or before 10:00 a.m., Eastern Time, at least three (3) business days immediately
preceding each Interest Payment Date, commencing on August 1, 2022, the Building Corporation
shall deposit or cause to be deposited with the Trustee the Lease Rental Payments, and the Trustee
immediately deposits such Lease Rental Payments into the Bond Fund, but no more than shall be
necessary for the payment of the principal of and interest on the Bonds on the immediately
succeeding Interest Payment Date (taking into consideration any amounts currently deposited
therein) and overdue principal and interest payments on outstanding Bonds.
(b) Any amounts remaining from deposits described in Section 4.4(a) shall be applied
by the Trustee as follows: (i) first, to be transferred into the Debt Service Reserve Fund for the
purpose of replenishing the Debt Service Reserve Fund to the Reserve Requirement with respect
to the Bonds, (ii) second, to be transferred into the Debt Service Reserve Fund for the purpose of
satisfying any Debt Service Reserve Fund Reimbursement Obligation for any Reserve Fund Credit
Facility, including all Credit Facility Costs as set forth in writing by the provider of the Credit
Facility, (iii) third, to redeem outstanding Bonds in accordance with Section 5.1 hereof, as directed
by the Issuer, or to be released and returned to the Issuer and used for any other purpose permitted
by the Act, and (iv) any remaining amounts shall be deposited into the Operation Fund.
(c) The obligations hereunder to deposit and apply the Lease Rental Payments shall be
absolute and unconditional and shall not be impaired by the failure of the Financing Agreement to
be in effect or the default by the Corporation or the Building Corporation thereunder.
Section 4.5 Construction Fund.
(a) A portion of the Net Proceeds received from the sale of the Series 2022 Bonds shall
be deposited with the Trustee in trust in the Construction Fund in an amount required to be
deposited therein pursuant to Article III hereof. Moneys held in the Construction Fund
representing proceeds of the sale of the Series 2022 Bonds shall be disbursed by the Trustee in
accordance with the provisions of this Section to pay the costs of completing the Project approved
by the Issuer. Subject to the limitations below and any applicable conditions precedent,
limitations, restrictions, representations, warranties and covenants contained in the Financing
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Agreement or this Indenture, disbursements from the Construction Fund shall be made only to pay
(or to reimburse the Corporation or its designee for payment of) the Annual Fees and costs of the
Project approved by the Issuer, as follows:
(1) Costs incurred directly or indirectly for or in connection with the
acquisition, construction, expansion, equipping, installation or improvement of the Project,
as the case may be, including: costs incurred with respect to preliminary planning and
studies; architectural, legal, engineering, accounting, consulting, supervisory and other
services; demolition; labor, services and materials; and recording of documents and title
work;
(2) Costs incurred directly or indirectly in seeking to enforce any remedy
against any contractor or subcontractor in respect of any actual or claimed default under
any contract relating to the Project, as the case may be;
(3) Any financial, legal and accounting charges and expenses or other
incidental and necessary costs, expenses, fees and charges approved by the Issuer relating
to the acquisition, construction, expansion, equipping, installation or improvement of the
Project, as the case may be.
Any disbursements from the Construction Fund described above to pay such fees, costs or
expenses (or to reimburse the Corporation for the payment of such fees, costs or expenses) shall
be made by the Trustee only upon the written request of an Authorized Representative for the
Corporation, with the prior written approval of the Issuer. Each such written request shall be in
the form of the disbursement request attached as Exhibit B hereto and shall be consecutively
numbered and accompanied by invoices or other appropriate documentation supporting the
payments or reimbursements requested. The Trustee shall not make any disbursements from the
Construction Fund without the prior written approval of the Issuer. The Trustee has no duty or
obligation to confirm that any requested disbursement constitutes as cost of the Project.
Following the completion of the Project, the Issuer will file or cause the Corporation to file an
Affidavit of Completion with the Trustee. If any money remains in the Construction Fund after
the filing of such Affidavit of Completion, the Issuer may direct the Trustee to disburse such
remaining funds for other expenditures as permitted by law, or may direct the Trustee to transfer
all such moneys to the Bond Fund.
(b) In making disbursements from the Construction Fund or any accounts thereof, the
Trustee may rely upon such invoices or other appropriate documentation supporting the payments
or reimbursements without further investigation. The Trustee shall not be bound to make an
investigation into the facts or matters stated in any written request. The Trustee shall not be
responsible for determining whether the funds on hand in the Construction Fund are sufficient to
complete the Project. The Trustee shall have no responsibility whatsoever to disburse or transfer
funds absent written instructions from the Issuer.
Section 4.6 Expense Fund.
The Trustee shall deposit into the Expense Fund the moneys required to be deposited
therein pursuant to the provisions of Article III hereof. The Trustee shall disburse the funds held
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in the Expense Fund to pay Costs of Issuance for the Series 2022 Bonds or to reimburse the Issuer
for amounts previously advanced for such costs as set forth in Exhibit C hereto (without further
approval of the Issuer). Any amounts remaining in the Expense Fund one-hundred twenty (120)
days after the issuance of the Series 2022 Bonds will be transferred to the Bond Fund to be used
to pay debt service on the Series 2022 Bonds, at which time the Expense Fund shall be closed
without further direction.
Section 4.7 Debt Service Reserve Fund.
(a) The Trustee will deposit in the Debt Service Reserve Fund all moneys required to
be deposited therein pursuant to Article III or Article IV hereof, together with such other moneys
as directed by the Issuer, to cause the balance of the Debt Service Reserve Fund to be equal to the
Debt Service Reserve Requirement, shall invest such funds pursuant to this Indenture and shall
disburse the funds held in the Debt Service Reserve Fund to the Bond Fund on the date which is
two (2) business days prior to the next preceding each Interest Payment Date, if the moneys in the
Bond Fund are not sufficient to make the payments of principal and interest required to be made
on the Bonds on such date after taking into account available funds on deposit in the Bond Fund
after making all transfers required to be made under this Indenture.
(b) The Trustee shall transfer the funds held in the Debt Service Reserve Fund to the
Bond Fund for the timely payment of the principal of and interest on the Bonds, but only in the
event that moneys in the Bond Fund are insufficient to pay such amount of principal and interest
due on the Bonds after making all transfers required to be made under this Indenture.
(c) If the balance of the Debt Service Reserve Fund exceeds the Debt Service Reserve
Requirement on February 1, of each year, the Trustee shall move the cash or Qualified Investments
in excess of the Debt Service Reserve Requirement from the Debt Service Reserve Fund to the
Construction Fund prior to the filing of the Affidavit of Project Completion and thereafter to the
Bond Fund.
(d) The Issuer may cause to be deposited into the Debt Service Reserve Fund, for the
benefit of the holders of the Bonds, a Debt Service Reserve Fund Credit Facility. If such deposit
causes the Debt Service Reserve Fund combined balance to be equal to the Reserve Requirement,
moneys in the Debt Service Reserve Fund which cause their combined balance to be in excess of
the Debt Service Reserve Requirement shall be moved to the Construction Fund or the Bond Fund,
as directed by the Issuer. If a disbursement is made pursuant to a Debt Service Reserve Fund
Credit Facility, the Issuer shall be obligated (but solely from amounts available under the
Indenture, including the Lease Rental Payments), within twelve months from the date on which
such disbursement was made, to cure such deficiency, by either (i) reinstating the maximum limits
of such Debt Service Reserve Fund Credit Facility or (ii) depositing cash into the Debt Service
Reserve Fund, or a combination of such alternatives, so that the balance of the Debt Service
Reserve Fund equals the Debt Service Reserve Requirement. The Trustee shall include in the total
amount held in the Debt Service Reserve Fund an amount equal to the maximum principal amount
which could be drawn by the Trustee under any such Debt Service Reserve Fund Credit Facility
on deposit with the Trustee. Amounts required to be deposited in the Debt Service Reserve Fund
shall include any amount required to satisfy a Debt Service Reserve Fund Reimbursement
Obligation for any Debt Service Reserve Fund Credit Facility. The Trustee is authorized to transfer
the amounts to satisfy the Debt Service Reserve Fund Reimbursement Obligations to the provider
24
of the Debt Service Reserve Fund Credit Facility. The Trustee shall be fully protected in
disbursing such amounts based on the written direction of the provider of the Credit Facility.
(e) Notwithstanding the foregoing, for so long as the Series 2022 Debt Service Reserve
Fund Credit Facility remains in full force and effect, the following provisions shall apply:
(1) The prior written consent of the Series 2022 Credit Provider shall be a condition
precedent to the deposit of any Debt Service Reserve Fund Credit Facility
credited to the Debt Service Reserve Fund in lieu of a cash deposit into the Debt
Service Reserve Fund. Amounts drawn under the Series 2022 Debt Service
Reserve Fund Credit Facility shall be available only for the payment of
scheduled principal and interest on the Series 2022 Bonds when due.
(2) The Issuer shall repay any draws under the Series 2022 Debt Service Reserve
Fund Credit Facility and pay all related reasonable expenses incurred by the
Series 2022 Credit Provider and shall pay interest thereon from the date of
payment by the Series 2022 Credit Provider at the Late Payment Rate. “Late
Payment Rate” means the lesser of: (x) the greater of: (i) the per annum rate of
interest, publicly announced from time to time by JPMorgan Chase Bank
(“Chase”) at its principal office in the City of New York, as its prime or base
lending rate (“Prime Rate”) (any change in such Prime Rate to be effective on
the date such change is announced by Chase) plus 5%; and (ii) the then
applicable highest rate of interest on the Series 2022 Bonds; and (y) the
maximum rate permissible under applicable usury or similar laws limiting
interest rates. The Late Payment Rate shall be computed on the basis of the
actual number of days elapsed over a year of 360 days. In the event Chase
ceases to announce its Prime Rate publicly, Prime Rate shall be the publicly
announced prime or base lending rate of such national bank as the Series 2022
Credit Provider shall specify. If the interest provisions of this subparagraph (2)
shall result in an effective rate of interest which, for any period, exceeds the
limit of the usury or any other laws applicable to indebtedness created herein,
then all sums in excess of those lawfully collectible as interest for the period in
question shall, without further agreement or notice between or by any party
hereto, be applied as additional interest for any later periods of time when
amounts are outstanding hereunder to the extent that interest otherwise due
hereunder for such periods plus such additional interest would not exceed the
limit of the usury or such other laws, and any excess shall be applied to principal
immediately upon receipt of such moneys by the Series 2022 Credit Provider,
with the same force and effect as if the Issuer had specifically designated such
extra sums to be so applied and the Series 2022 Credit Provider had agreed to
accept such extra payment(s) as additional interest for such later periods. In no
event shall any agreed-to or actual exaction as consideration for the
indebtedness created herein exceed the limits imposed or provided by the law
applicable to this transaction for the use or detention of money or for
forbearance in seeking its collection.
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Repayment of draws and payment of expenses and accrued interest thereon at
the Late Payment Rate (collectively, “Policy Costs”) shall commence in the first
month following each draw, and each such monthly payment shall be in an
amount at least equal to 1/12 of the aggregate of Policy Costs related to such
draw.
Amounts in respect of Policy Costs paid to the Series 2022 Credit Provider shall
be credited first to interest due, then to the expenses due and then to principal
due. As and to the extent that payments are made to the Series 2022 Credit
Provider on account of principal due, the coverage under the Series 2022 Debt
Service Reserve Fund Credit Facility will be increased by a like amount, subject
to the terms of the Series 2022 Debt Service Reserve Fund Credit Facility. The
obligation to pay Policy Costs shall be secured by a valid lien on all LIT
Revenues and other collateral pledged as security for the Bonds as set forth
herein (subject only to the priority of payment of debt service on the Series 2022
Bonds set forth under this Indenture).
All cash and investments in the Debt Service Reserve Fund allocated to the
Series 2022 Bonds shall be transferred to the Bond Fund for payment of debt
service on the Series 2022 Bonds before any drawing may be made on the Series
2022 Debt Service Reserve Fund Credit Facility or any other Debt Service
Reserve Fund Credit Facility credited to the Debt Service Reserve Fund in lieu
of cash. Payment of any Policy Costs shall be made prior to replenishment of
any such cash amounts. Draws on all Debt Service Reserve Fund Credit
Facilities (including the Series 2022 Debt Service Reserve Fund Credit Facility)
on which there is Available Coverage shall be made on a pro rata basis
(calculated by reference to the coverage then available thereunder) after
applying all available cash and investments in the Debt Service Reserve
Fund. Payment of Policy Costs and reimbursement of amounts with respect to
other Debt Service Reserve Fund Credit Facilities shall be made on a pro rata
basis prior to replenishment of any cash drawn from the Debt Service Reserve
Fund. For avoidance of doubt, “Available Coverage” means the coverage then
available for disbursement pursuant to the terms of the applicable alternative
Debt Service Reserve Fund Credit Facility without regard to the legal or
financial ability or willingness of the provider thereof of such instrument to
honor a claim or draw thereon or the failure of such provider to honor any such
claim or draw.
(3) Upon a failure to pay Policy Costs when due or any other breach of the terms
of this Indenture, the Series 2022 Credit Provider shall be entitled to exercise
any and all legal and equitable remedies available to it, including those provided
hereunder, other than: (i) acceleration of the maturity of the Series 2022 Bonds;
or (ii) remedies which would adversely affect owners of the Series 2022 Bonds.
(4) The Indenture shall not be discharged until all Policy Costs owing to the Series
2022 Credit Provider shall have been paid in full. The Issuer’s obligation to pay
such amounts shall expressly survive payment in full of the Series 2022 Bonds.
26
(5) The Issuer shall include any Policy Costs then due and owing the Series 2022
Credit Provider in the calculation of the additional bonds test and rate covenant
set forth in the Bond Ordinance.
(6) The Trustee shall ascertain the necessity for a claim upon the Series 2022 Debt
Service Reserve Fund Credit Facility and provide notice to the Series 2022
Credit Provider in accordance with the provisions of subparagraph (a) hereof
and to provide notice to the Series 2022 Credit Provider in accordance with the
terms of the Reserve Policy at least five (5) business days prior to each date
upon which interest or principal is due on the Series 2022 Bonds. Where
deposits are required to be made by the Issuer with the Trustee to the Bond Fund
for the Series 2022 Bonds more often than semi-annually, the Trustee shall give
notice to the Series 2022 Credit Provider of any failure of the Issuer to make
timely payment in full of such deposits within two (2) business days of the date
due.
(7) Solely from the Lease Rental Payments, the Issuer shall pay or reimburse the
Series 2022 Credit Provider any and all charges, fees, costs and expenses which
the Series 2022 Credit Provider may pay or incur, including, but not limited to,
fees and expenses of attorneys, accountants, consultants, and auditors and
reasonable costs of investigations, in connection with: (i) any accounts
established to facilitate payments under the Series 2022 Debt Service Reserve
Fund Credit Facility, (ii) the administration, enforcement, defense or
preservation of any rights or security in the Indenture or the Bond Ordinance or
any document executed in connection with the Bonds (the “Related
Documents”), including defending, monitoring or participating in any litigation
or proceeding (including any bankruptcy proceeding in respect of the Issuer)
relating to this Indenture or any other Related Document or the transactions
contemplated by the Related Documents; (iii) the foreclosure against, sale or
other disposition of any collateral securing any obligations under this Indenture
or any other Related Document, if any, or the pursuit of any remedies under this
Indenture, the Bond Ordinance, or any other Related Document, to the extent
such costs and expenses are not recovered from such foreclosure, sale or other
disposition, (iv) any amendment, waiver or other action with respect to, or
related to, this Indenture, the Series 2022 Debt Service Reserve Fund Credit
Facility, or any other Related Document whether or not executed or completed;
or (v) any litigation taken by the Series 2022 Credit Provider to cure a default
or termination or similar event (or to mitigate the effect thereof) under this
Indenture, the Bond Ordinance, or any other Related Document; costs and
expenses shall include a reasonable allocation of compensation and overhead
attributable to time of employees of the Series 2022 Credit Provider spent in
connection with the actions described in clauses (ii) through (v) above. The
Series 2022 Credit Provider reserves the right to charge a reasonable fee as a
condition to executing any amendment, waiver or consent proposed in respect
of the Indenture, the Bond Ordinance, or any Related Document. Amounts
payable by the Issuer hereunder shall bear interest at the Late Payment Rate
from the date such amount is paid or incurred by the Series 2022 Credit Provider
until the date the Series 2022 Credit Provider is paid in full.
27
(8) The obligation of the Issuer to pay all amounts due to Series 2022 Credit
Provider from Lease Rental Payments shall be an absolute and unconditional
obligation of the Issuer and will be paid or performed strictly in accordance
with the provisions of this Trust Indenture, irrespective of (i) any lack of
validity or enforceability of or any amendment or other modifications of, or
waiver with respect to the Bonds, the Trust Indenture, the Bond Ordinance, or
any other Related Document, or (ii) any amendment or other modification of,
or waiver with respect to the Reserve Policy; (iii) any exchange, release or non-
perfection of any security interest in property securing the Bonds, the Trust
Indenture, the Bond Ordinance, or any other Related Documents; (iv) whether
or not such Bonds are contingent or matured, disputed or undisputed, liquidated
or unliquidated; (v) any amendment, modification or waiver of or any consent
to departure from the Series 2022 Debt Service Reserve Fund Credit Facility,
the Trust Indenture, the Bond Ordinance, or all or any of the other Related
Documents; (vi) the existence of any claim, setoff, defense (other than the
defense of payment in full), reduction abatement or other right which the Issuer
may have at any time against the Trustee or any other person or entity other
than the Insurer, whether in connection with the transactions contemplated
herein or in any other Related Documents or any unrelated transactions; (vii)
any statement or any other document presented under or in connection with the
Series 2022 Debt Service Reserve Fund Credit Facility proving in any and all
respects invalid, inaccurate, insufficient, fraudulent or forged or any statement
therein being untrue or inaccurate in any respect; or (viii) any payment by the
Insurer under the Series 2022 Debt Service Reserve Fund Credit Facility against
presentation of a certificate or other document which does not strictly comply
with the terms of the Series 2022 Debt Service Reserve Fund Credit Facility.
(9) The Issuer shall fully observe, perform, and fulfill each of the provisions (as
each of those provisions may be amended, supplemented, modified or waived
with the prior written consent of the Series 2022 Credit Provider of the
Indenture applicable to it, each of the provisions thereof being expressly
incorporated into this Trust Indenture by reference solely for the benefit of the
Series 2022 Credit Provider as if set forth directly herein. No provision of the
Indenture, the Bond Ordinance, or any other Related Document shall be
amended, supplemented, modified or waived, without the prior written consent
of the Series 2022 Credit Provider in any material respect or otherwise in a
manner that could adversely affect the payment obligations of the Issuer
hereunder or the priority accorded to the reimbursement of Policy Costs under
the Indenture. The Series 2022 Credit Provider is hereby expressly made a third
party beneficiary of the Indenture, the Bond Ordinance, and each other Related
Document.
(10) The Issuer covenants to provide to Series 2022 Credit Provider promptly
upon request, any information regarding the Bonds or the financial condition
and operations of the Issuer as reasonably requested by Series 2022 Credit
Provider. The Issuer will permit Series 2022 Credit Provider to discuss the
affairs, finances and accounts of the Issuer or any information Series 2022
28
Credit Provider may reasonably request regarding the security for the Bonds
with appropriate officers of the Issuer and will use commercially reasonable
efforts to enable Series 2022 Credit Provider to have access to the facilities,
books and records of the Issuer on any business day upon reasonable prior
notice.
(11) Notices and other information to Series 2022 Credit Provider shall be sent
to the following address (or such other address as Series 2022 Credit Provider
may designate in writing): Municipal Assurance Corp., 1633 Broadway, New
York, New York 10019, Attention Managing Director – Surveillance, Re:
Policy No. 700812-S.
Section 4.8 Operation Fund. There is hereby established and created a fund designated
as the Operation Fund. The Operation Fund shall be used only to pay necessary incidental
expenses of the Issuer (e.g. Trustee’s fees, including Annual Fees, required audits, attorney’s fees,
appraisals, meetings, expenses incurred in connection with any continuing disclosure obligations
of the Issuer or the Corporation in relation to the Bonds), the payment of principal of and interest
on the Bonds upon redemption as authorized in Article V hereof or the purchase price of Bonds
purchased as authorized by Section 4.10 hereof, and if the amount in the Bond Fund at any time is
less than the required amount, the Trustee shall, without any further authorization, transfer funds
from the Operation Fund to the Bond Fund in an amount sufficient to raise the amount in the Bond
Fund to the required amount. Such action by the Trustee shall not constitute a waiver of any other
right or remedy the Trustee may have under this Indenture. Incidental expenses shall be paid by
the Trustee upon the presentation of an affidavit executed by an Authorized Issuer Representative
stating the character of the expenditure, the amount thereof and to whom due, together with the
statement of the creditor as to the amount owing, except for the payment of Trustee’s fees which
requires no such affidavit from an Authorized Issuer Representative.
Notwithstanding anything herein to the contrary, upon receipt by the Trustee of a
Request for Release of Funds, as defined below, the Trustee shall as soon thereafter as practical
release to the Issuer funds in the Operation Fund in accord with such Request for Release of Funds.
For these purposes, a “Request for Release of Funds” means a written request made by the Issuer
which (i) is signed by an Authorized Issuer Representative, (ii) sets forth the amount requested to
be released from the Operation Fund to the Issuer, and (iii) includes a statement, accompanied by
supporting schedules prepared by an accountant or firm of accountants which verify the statement,
that the balance to be held in the Operation Fund immediately after such amount is released to the
Issuer is expected to be sufficient to meet the known and anticipated payments and transfers to be
satisfied from the Operation Fund in the then next succeeding eighteen (18) months. The
supporting schedules shall identify with particularity the anticipated sources and applications of
funds. The statement and supporting schedules required by clause (iii) above shall not include
anticipated investment earnings based on assumptions about reinvestment rates, but may include
known investment earnings scheduled to be received on then current investments, and shall include
any known or anticipated gain or loss from the disposition of investments. Notwithstanding the
foregoing provisions of this paragraph, the Trustee shall not so release funds from the Operation
Fund to the Issuer during any time that there exists an uncured or unwaived event of default
hereunder (as defined in Article VII), or an event which with notice or lapse of time or both would
become such an event of default, or if the Trustee determines, which determination may be in
reliance upon an Opinion of Counsel, that the information set forth in the Request for Release of
29
Funds (including the supporting schedules) is not reasonably consistent with the books and records
of the Trustee or is otherwise not accurate or appropriate
Section 4.9 Rebate Fund. Any provision hereof to the contrary notwithstanding,
amounts deposited in or credited to the Rebate Fund shall be free and clear of any lien hereunder.
If, in order to maintain the exclusion of interest on any Series of Bonds (including the Series 2022
Bonds) from gross income for federal income tax purposes under Section 103 of the Code, the
Issuer is required to rebate portions of investment earnings to the United States government, the
Issuer shall annually cause to be computed the amount required to be so rebated, or, if the
provisions of Section 148(f)(4)(C)(vii) of the Code apply, the Issuer shall semiannually cause to
be computed the amount of the penalty to be paid in lieu of rebate. Upon receipt of such
computation, the Trustee shall at the direction of the Issuer deposit such amount in the Rebate
Fund from the Construction Fund, the Expense Fund, the Debt Service Reserve Fund or investment
earnings on the Bond Fund. The Trustee shall pay required rebate or penalties from the Rebate
Fund as directed by the Issuer. Such payments shall be made by the Trustee without any further
authorization or direction, other than as stated herein. The Issuer acknowledges that it shall direct
the Trustee to make all payments required to be made by Section 148 of the Code.
Section 4.10 Redemption and Purchase of Bonds. Whenever the amounts contained in
the Bond Fund and Operation Fund are sufficient, together with any other funds deposited with
the Trustee by the Issuer, to redeem, upon the next redemption date, all Bonds secured thereby
then outstanding, the Trustee shall apply the amounts in such Funds to the redemption of such
Bonds pursuant to Article V hereof. At the written request of an Authorized Issuer Representative
delivered to the Trustee, the Trustee may remove funds from the Operation Fund to be used for
the redemption of Bonds, or for the purchase of Bonds.
Section 4.11 Trust Funds. All moneys and securities received by the Trustee under the
provisions of this Indenture shall be trust funds under the terms hereof and shall not be subject to
lien or attachment of any creditor of the Issuer, the Building Corporation, or of the Corporation.
Such moneys shall be held in trust for the benefit of the Bondholders and applied in accordance
with the provisions of this Indenture.
Section 4.12 Investment. Moneys on deposit in the Funds established in this Article IV
hereof shall be invested as provided in Section 6.5 hereof.
(End of Article IV)
30
ARTICLE V
REDEMPTION OF BONDS PRIOR TO MATURITY
Section 5.1 Redemption Dates and Prices.
(a) The Series 2022 Bonds maturing on or after ____________ 1, 20__, are
subject to redemption at the option of the Issuer on any date on or after __________, 1, 20___, in
whole or in part, in order of maturity determined by Issuer and by lot within maturities, at face
value, plus accrued interest to the date fixed for redemption and without premium.
(b) The Series 2022 Bonds maturing on _________ 1, 20__, __________ 1,
20__, and _____________ 1, 20__, are subject to mandatory sinking fund redemption prior to
maturity on the dates and in the amounts set forth below at a price equal to 100% of the principal
amount to be redeemed, plus accrued interest to the date of redemption:
Term Bonds Due __________ 1, 20___
Date Amount
*
*Final maturity
Term Bonds Due __________ 1, 20__
Date Amount
*
*Final maturity
Term Bonds Due _________ 1, 20__
Date Amount
*
*Final maturity
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The Trustee shall credit against the mandatory sinking fund requirement for any Term
Bonds, and corresponding mandatory sinking fund redemption obligation, in the order determined
by the Issuer, any such Term Bonds which have previously been redeemed (otherwise than as a
result of a previous mandatory sinking fund redemption requirement) or delivered to the Trustee,
the Registrar or the Paying Agent for cancellation or purchased for cancellation by the Trustee and
not theretofore applied as a credit against any redemption obligation. Each Term Bond so
delivered or canceled shall be credited by the Trustee at 100% of the principal amount thereof
against the mandatory sinking fund obligation on such mandatory sinking fund redemption date,
and any excess of such amount shall be credited on future redemption obligations, and the principal
amount of Term Bonds to be redeemed by operation of the mandatory sinking fund requirement
shall be accordingly reduced; provided, however, the Trustee, the Registrar or the Paying Agent
shall only credit such Term Bonds to the extent received on or before forty-five (45) days preceding
the applicable mandatory sinking fund redemption date stated above.
Section 5.2 Notice to Trustee of Intent to Redeem. To evidence its intention to exercise
the right of redemption of any Bonds, the Issuer shall, not less than forty-five (45) days prior to
the date selected for redemption, file with the Trustee written notice of its intention to redeem,
designating the date fixed for redemption, and if less than all of the outstanding Bonds are to be
redeemed stating the aggregate principal amount of Bonds which the Issuer desires to redeem. No
failure or defect in such notice by the Issuer to the Trustee shall affect the validity of the redemption
of any Bonds.
Section 5.3 Notice to Bondholders of Redemption. In the case of redemption of Bonds
pursuant to Section 5.1 hereof, unless waived by the registered owners of the Bonds to be
redeemed, notice of the call for any such redemption identifying the Bonds, or portions of fully
registered Bonds, to be redeemed shall be given by mailing a copy of the redemption notice by
first-class mail not less than thirty (30) days nor more than forty-five (45) days prior to the date
fixed for redemption to the registered owner of each Bond to be redeemed at the address shown
on the registration books. Any notice of redemption required under this section shall identify the
Bonds to be redeemed including the complete name of the Bonds, the interest rate, the issue date,
the maturity date, the respective certificate numbers (and, in the case of a partial redemption, the
respective principal amounts to be called) and shall state (i) the date fixed for redemption, (ii) the
redemption price, (iii) that the Bonds called for optional redemption in full must be surrendered to
collect the redemption price, (iv) the address of the corporate trust office of the Trustee at which
the Bonds must be surrendered together with the name and telephone number of a person to contact
from the office of the Trustee, (v) any condition precedent to such redemption, (vi) that on the date
fixed for redemption, and upon the satisfaction of any condition precedent described in the notice,
the redemption price will be due and payable upon each such Bond or portion thereof and that
interest on the Bonds called for redemption ceases to accrue on the date fixed for redemption, and
(vii) that if such condition precedent is not satisfied, such notice of redemption is rescinded and of
no force and effect, and the principal and premium, if any, shall continue to bear interest on and
after the date fixed for redemption at the interest rate borne by the Bond; provided, however, that
failure to give such notice by mailing, or any defect therein, with respect to any such registered
Bond shall not affect the validity of any proceedings for the redemption of other Bonds.
On and after the redemption date specified in the aforesaid notice, such Bonds, or portions
thereof, thus called shall not bear interest, shall no longer be protected by this Indenture and shall
not be deemed to be outstanding under the provisions of this Indenture, and the holders thereof
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shall have the right only to receive the redemption price thereof plus accrued interest thereon to
the date fixed for redemption.
Notice of any redemption hereunder required to be given to the owners with respect to the
Series 2022 Bonds held under a book-entry system shall be given by the Trustee only to the
Depository, or its nominee, as the holder of such Series 2022 Bonds.
Section 5.4 Cancellation. All Bonds which have been redeemed in whole shall be
canceled and cremated or otherwise destroyed by the Trustee and shall not be reissued, and a
counterpart of the certificate of cremation or other destruction evidencing such cremation or other
destruction shall be furnished upon request by the Trustee to the Issuer.
Section 5.5 Redemption Payments. Prior to the date fixed for redemption in whole,
funds shall be deposited with the Trustee to pay, and the Trustee is hereby authorized and directed
to apply such funds to the payment of the Bonds or portions thereof called, together with accrued
interest thereon to the redemption date. Upon the giving of notice and the deposit of funds for
redemption, interest on the Bonds thus called shall no longer accrue after the date fixed for
redemption. No payment shall be made by the Trustee upon any Bond being optionally redeemed
in full until such Bond shall have been delivered for payment or cancellation or the Trustee shall
have received the items required by Section 2.7 hereof with respect to any mutilated, lost, stolen
or destroyed Bond.
Section 5.6 Partial Redemption of Bonds. If fewer than all of the Bonds at the time
outstanding are to be called for redemption, the maturities of Bonds or portions thereof to be
redeemed shall be selected by the Trustee at the direction of the Issuer. If fewer than all of the
Bonds within a maturity are to be redeemed, the Trustee shall apply moneys available for
redemption on a pro rata basis, based on the respective portion of the principal amount of Bonds
held by the respective owners of the Bonds within such maturity that shall be redeemed. The
Trustee shall call for redemption in accordance with the foregoing provisions as many Bonds or
portions thereof as will, as nearly as practicable, exhaust the moneys available therefor. Particular
Bonds or portions thereof shall be optionally redeemed only in the minimum principal amount of
$5,000 or integral multiples thereof.
If less than the entire principal amount of any registered Bond then outstanding is called
for redemption, then upon notice of redemption given as provided in Section 5.3 hereof, the owner
of such registered Bond shall forthwith surrender such Bond to the Trustee in exchange for (a)
payment of the redemption price of, plus accrued interest on the principal amount thereof called
for redemption to the redemption date, and (b) a new Bond or Bonds of like series in an aggregate
principal amount equal to the unredeemed balance of the principal amount of such registered Bond,
which shall be issued without charge therefor.
(End of Article V)
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ARTICLE VI
GENERAL COVENANTS
Section 6.1 Payment of Principal and Interest. The Issuer covenants that it will
promptly pay the principal of and interest on every Bond issued under this Indenture at the place,
on the dates and in the manner provided herein and in said Bonds according to the true intent and
meaning thereof. The principal of and interest on the Bonds are payable solely and only from the
Trust Estate, consisting of funds and accounts held under the Indenture and the Lease Rental
Payments, which payments are specifically pledged and assigned to the payment of the Bonds in
the manner and to the extent herein specified, and nothing in the Bonds or in this Indenture should
be considered as pledging any other funds or assets of the Issuer. The Bonds, and the interest
payable thereon, do not and shall not represent or constitute a debt of the Issuer, the State of
Indiana, or any political subdivision or taxing authority thereof within the meaning of the
provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and credit
of the Issuer, the State of Indiana, or any political subdivision or taxing authority thereof. The
Bonds, as to both principal and interest, are not an obligation or liability of the Issuer, the State of
Indiana, or of any political subdivision or taxing authority thereof, but are special limited
obligations of the Issuer and are payable solely and only from the Trust Estate, consisting of funds
and accounts held under the Indenture and the Lease Rental Payments pledged and assigned for
payment of the Bonds in accordance with the Indenture. Neither the faith and credit nor the taxing
power of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof is
pledged to the payment of the principal of or the interest on the Bonds. The Bonds do not grant
the owners or holders thereof any right to have the Issuer, the State of Indiana or its General
Assembly, or any political subdivision or taxing authority of the State of Indiana, levy any taxes
or appropriate any funds for the payment of the principal of or interest on the Bonds. The Issuer
has no taxing power with respect to the Bonds. No covenant or agreement contained in the Bonds,
the Financing Agreement, or the Indenture shall be deemed to be a covenant or agreement of any
member, director, officer, agent, attorney or employee of the Redevelopment Commission,
Economic Development Commission, or the Issuer in his or her individual capacity, and no
member, director, officer, agent, attorney or employee of the Redevelopment Commission,
Economic Development Commission, or the Issuer executing the Bonds shall be liable personally
on the Bonds or be subject to any personal liability or accountability by reason of the issuance of
the Bonds. Under no circumstances shall the Corporation be liable for making any payments due
under this Indenture or on the Bonds, including any payment of principal of, premium, if any, or
interest on the Bonds.
Section 6.2 Performance of Covenants. The Issuer covenants that it will faithfully
perform at all times any and all covenants, undertakings, stipulations and provisions contained in
this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all
proceedings of its members pertaining thereto. The Issuer represents that it is duly authorized under
the constitution and laws of the State of Indiana to issue the Bonds authorized hereby and to
execute this Indenture, and to pledge and assign the Lease Rental Payments in the manner and to
the extent herein set forth; that all action on its part for the issuance of the Bonds and the execution
and delivery of this Indenture has been duly and effectively taken; and that the Bonds in the hands
of the holders and owners thereof are and will be valid and enforceable obligations of the Issuer
according to the import thereof, subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws, judicial decisions and principles of equity relating to or affecting creditors’
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rights generally and subject to the valid exercise of the constitutional powers of the Issuer, the
State of Indiana and the United States of America.
Section 6.3 Instruments of Further Assurance. (a) The Issuer covenants that it will do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered,
such indentures supplemental hereto and such further acts, instruments and transfers as the Trustee
may reasonably require for the better assuring, transferring, mortgaging, conveying, pledging,
assigning and confirming unto the Trustee, the Trust Estate pledged hereby to the payment of the
principal of and interest on the Bonds.
(b) The Issuer represents that at the time of the pledge and assignment thereof it will
have a legally enforceable interest in the Lease and the Lease Rental Payments and that such pledge
and assignment and the assignment of its interests in the Lease to the Trustee hereby made will be
valid and lawful. The Issuer covenants that it will defend its interest in the Lease and the Lease
Rental Payments to the Trustee, for the benefit of the holders and owners of the Bonds against the
claims and demands of all persons whomsoever. The Issuer covenants that it will do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such
indentures supplemental hereto and such further acts, instruments and transfers as the Trustee may
reasonably require for the better assuring, transferring, conveying, pledging, assigning and
confirming unto the Trustee, the Lease and the Lease Rental Payments and all payments thereon
and thereunder pledged hereby to the payment of the principal of, premium, if any, and interest on
the Bonds.
Section 6.4 Filing of Indenture and Security Instruments. The Issuer shall cause this
Indenture and all supplements thereto as well as such other security instruments, financing
statements and all supplements thereto and other instruments as may be required from time to time
to be filed in such manner and in such places as may be required by law in order to fully preserve
and protect the lien hereof and the security of the holders and owners of the Bonds and the rights
of the Trustee hereunder. To the extent any financing statements are required to be filed, the Issuer
shall provide the Trustee with copies thereof. This section shall impose no duty to record or file
the instruments noted above where filing or recordation is not required by law in order to perfect
a security interest. Continuation of financing statements may be filed without consent of the debtor
parties thereto.
Section 6.5 Leased Premises. The Issuer covenants that it will cause the Building
Corporation and the Redevelopment Commission to maintain, or cause to maintained, the Leased
Premises in good working condition for the uses for which the Leased Premises are intended.
Section 6.6 List of Bondholders. The Trustee will keep on file at the principal office of
the Trustee a list of names and addresses of the holders of all Bonds. At reasonable times and
under reasonable regulations established by the Trustee, said list may be inspected and copied by
the holders and/or owners (or a designated representative thereof) of 25% or more in principal
amount of Bonds then outstanding, such ownership and the authority of any such designated
representative to be evidenced to the satisfaction of the Trustee.
Section 6.7 Rights Under Financing Agreement and Lease. The Issuer agrees that the
Trustee in its name or in the name of the Issuer may enforce all rights of the Issuer and all
obligations of the Building Corporation and the Redevelopment Commission under and pursuant
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to the Financing Agreement and the Lease for and on behalf of the Bondholders, whether or not
the Issuer is in default hereunder.
Section 6.8 Investment of Funds. All moneys held by the Trustee in any Fund
established by this Indenture shall, at the written direction of the Issuer, be invested in Qualified
Investments to the extent permitted by law. For so long as the Trustee is in compliance with the
provisions of this section, the Trustee shall not be liable for any investment losses. All such
investments shall at all times be a part of the fund or account in which the moneys used to acquire
such investments had been deposited, and all income derived from the investment of moneys on
deposit in such fund shall be deposited in or credited to and any loss resulting from such investment
will be charged to the corresponding Fund from which such investment was made. Investments
of moneys in the respective funds or accounts must be made so as to assure preservation of
principal. Moneys in any fund or account shall be invested in Qualified Investments with a
maturity date, or a redemption date determined by the Issuer at the Issuer’s option, which shall
coincide as nearly as practicable with times at which moneys in such funds or accounts will be
required for the purposes thereof. The Trustee shall sell and reduce to cash a sufficient amount of
such investments in the respective fund or account whenever the cash balance therein is insufficient
to pay the amounts contemplated to be paid therefrom at the time those amounts are to be paid.
The Trustee is hereby authorized to trade with itself in the purchase and sale of securities for
investments. Neither the Trustee nor the Issuer shall be liable or responsible for any loss resulting
from any investment. All such investments shall be held by or under the control of the Trustee
and any income resulting therefrom shall be applied in the manner specified in this Indenture. The
Trustee may conclusively rely upon the Issuer’s written instructions as to both the suitability and
legality of the directed investments and such written direction shall be deemed to be certification
that such directed investments constitute Qualified Investments. The Corporation shall not be
authorized or entitled to direct, or obligated to make, investments of Bond proceeds or any other
funds held under this Indenture. Although the Issuer recognizes that it may obtain a broker
confirmation at no additional cost, the Issuer hereby agrees that confirmations of permitted
investments are not required to be issued by the Trustee for each month in which a monthly
statement is rendered. No statement need be rendered for any fund or account if no activity
occurred in such fund or account during such month.
The Trustee may elect, but shall not be obligated, to credit the funds and accounts held by
it with the moneys representing income or principal payments due on, or sales proceeds due in
respect of, Qualified Investments in such funds and accounts, or to credit to qualified Investments
intended to be purchased with such moneys, in each case before actually receiving the requisite
moneys from the payment source, or to otherwise advance funds for account transactions. The
Issuer acknowledges that the legal obligation to pay the purchase price of Qualified Investments
arises immediately at the time of the purchase. Notwithstanding anything else in this Indenture,
(i) any such crediting of funds or assets shall be provisional in nature, and the Trustee shall be
authorized to reverse any such transactions or advances of funds in the event that it does not receive
good funds with respect thereto, and (ii) nothing in this Indenture shall constitute a waiver of any
of the Trustee’s rights as a securities intermediary under Uniform Commercial Code §9-206.
Section 6.9 Non-presentment of Bonds. In the event any Bond shall not be presented
for payment when the final payment of principal thereof becomes due, either at maturity, or at the
date fixed for optional redemption in full thereof, or otherwise, if funds sufficient to pay any such
Bond shall have been made available to Trustee for the benefit of the holder or holders thereof, all
36
liability of the Issuer to the holder thereof for the payment of such Bond shall forthwith cease,
determine and be completely discharged, and thereupon it shall be the duty of the Trustee to hold
such funds for five (5) years without liability for interest thereon, for the benefit of the holder of
such Bond, who shall thereafter be restricted exclusively to such funds, for any claim of whatever
nature on his part under this Indenture or on, or with respect to, such Bond.
Any moneys so deposited with and held by the Trustee not so applied to the payment of
Bonds within five (5) years after the date on which the same shall become due shall be repaid by
the Trustee to the Issuer, and thereafter Bondholders shall be entitled to look only to the Issuer for
payment, and then only to the extent of the amount so repaid.
Section 6.10 Destruction of Bonds. Whenever any outstanding Bond shall be delivered
to the Trustee for cancellation pursuant to this Indenture or upon payment of the principal amount
or interest represented thereby or for replacement pursuant to Section 2.7, such Bond shall be
cancelled and destroyed by the Trustee and a counterpart of a certificate of destruction evidencing
such destruction shall be furnished upon request by the Trustee to the Issuer.
Section 6.11 Issuer Indemnity. To the extent authorized by law, the Issuer shall
indemnify and hold harmless the Trustee against any and all loss, damage, claims, expense and
liability arising out of or in connection with the acceptance of administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any claim (whether asserted
by the Issuer, the Corporation, any bondholder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder except to the extent that such
loss, damage, claim, expense or liability is determined by a court of competent jurisdiction to have
been caused solely by Trustee’s gross negligence or willful misconduct.
Section 6.12 Tax Covenants; Issuance of Taxable Bonds.
(a) To assure the continuing exclusion of the interest on any Series of Bonds (including
the Series 2022 Bonds) from the gross income of the owners thereof for federal tax purposes under
Section 103 of the Code, the Issuer covenants and agrees as follows:
(i) It will not take any action or fail to take any action with respect to such
Series of Bonds, that would result in the loss of the exclusion from gross income for federal
tax purposes of interest on any of the Bonds pursuant to Section 103 of the Code, nor will
the Issuer act in any other manner which would adversely affect such exclusion; and it will
not make any investment or do any other act or thing during the period that the Bonds are
outstanding which would cause any of the Bonds to be “arbitrage bonds” within the
meaning of Section 148 of the Code, all as in effect on the date of delivery of the particular
Series of Bonds.
(ii) These covenants are based solely on current law in effect and in existence
on the date of delivery of each Series of Bonds.
(iii) It shall not be an Event of Default under this Indenture if the interest on any
of the Bonds is not excludable from gross income for federal tax purposes or otherwise
pursuant to any provision of the Code which is not currently in effect and in existence on
the date of the issuance of such Series of Bonds.
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(iv) It will rebate any necessary amounts to the United States of America to the
extent required by the Code, as provided in Section 4.9 of this Indenture.
(b) Notwithstanding any other provision of this Indenture to the contrary, the foregoing
covenants and authorizations (the “Tax Sections”), which are designed to preserve the continuing
exclusion of the interest on a Series of Bonds from the gross income of the owners thereof for
federal tax purposes under Section 103 of the Code, need not be complied with if the Issuer
receives an Opinion of Bond Counsel that any Tax Section is unnecessary to preserve the
continuing exclusion of the interest on such Series of Bonds from the gross income of the owners
thereof for federal tax purposes under Section 103 of the Code. In making any determination
regarding the covenants, the Issuer may rely on an Opinion of Bond Counsel which shall be
addressed to the Issuer and the Trustee.
(c) Notwithstanding any other provision of the Indenture to the contrary, the Issuer
may elect to issue a Series of Bonds, the interest on which is not excludable from gross income for
federal tax purposes, so long as such election does not adversely affect the exclusion from gross
income of interest for federal tax purposes on any other Series of Bonds, by making such election
on the date of delivery of such Series of Bonds. In such case, the Tax Sections in this Indenture
shall not apply to such Series of Bonds.
(End of Article VI)
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ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.1 Events of Default. Each of the following events is hereby declared an
“event of default,” that is to say, if
(a) payment of any principal or interest payable on the Bonds shall not be made when
the same is due and payable, whether at the stated maturity thereof, or upon proceedings for the
redemption thereof; or
(b) any event of default as defined in Section ____ of the Financing Agreement shall
occur and be continuing; or
(c) the Issuer shall default in the due and punctual performance of any other of the
covenants, conditions, agreements and provisions contained in the Bonds or in this Indenture or
any agreement supplemental hereto on the part of the Issuer to be performed, and such default shall
continue for sixty (60) days after written notice specifying such default and requiring the same to
be remedied shall have been given to the Issuer by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request of the holders of all of the Bonds then
outstanding hereunder; or
(d) the Issuer shall fail to apply the Lease Rental Payments as required by Article IV
of this Indenture; or
(e) any event of default as defined in Section ____ shall occur and be continuing.
Section 7.2 Remedies: Rights of Bondholders.
(a) If an event of default occurs, the Trustee may pursue any available remedy by suit
at law or in equity to enforce the payment of the principal of and interest on the Bonds then
outstanding, and to enforce any obligations of the Issuer hereunder.
(b) Upon the occurrence of an event of default, and if directed so to do by the Requisite
Bondholders and indemnified as provided in Section 8.1 hereof, the Trustee shall be obligated to
exercise one or more of the rights and powers conferred by this Article as the Trustee, being
advised by Counsel, shall deem most expedient in the interests of the Bondholders.
(c) No remedy by the terms of this Indenture conferred upon or reserved to the Trustee
(or to the Bondholders) is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or
to the Bondholders hereunder or now or hereafter existing at law or in equity or by statute.
(d) No delay or omission to exercise any right or power accruing upon any event of
default shall impair any such right or power or shall be construed to be a waiver of any event of
default or acquiescence therein, and every such right and power may be exercised from time to
time as may be deemed expedient.
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(e) No waiver of any event of default hereunder, whether by the Trustee or by the
Bondholders, shall extend to or shall affect any subsequent event of default or shall impair any
rights or remedies consequent thereon.
Section 7.3 Right of Bondholders to Direct Proceedings. The Requisite Bondholders
shall have the right, at any time, by an instrument or instruments in writing executed and delivered
to the Trustee, to direct the time, the method and the place of conducting all proceedings to be
taken in connection with the enforcement of the terms and conditions of this Indenture, or for the
appointment of a receiver or any other proceedings hereunder; provided, that such direction shall
not be otherwise than in accordance with the provisions of law and of this Indenture.
Section 7.4 Application of Moneys.
(a) All moneys received by the Trustee pursuant to any right given or action taken
under the provisions of this Article shall, after payment of the cost and expenses of the proceedings
resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or
made by the Trustee or the Issuer and the creation of a reasonable reserve for anticipated fees,
costs and expenses, be deposited in the Bond Fund and all moneys in the Bond Fund shall be
applied as follows:
(1) Unless the principal of all the Bonds shall have become due and payable,
all such moneys shall be applied:
FIRST: To the payment to the persons entitled thereto of all installments of interest
then due on the Bonds, in the order of the maturity of the installments of such interest, and
if the amount available shall not be sufficient to pay in full any particular installment, then
to the payment ratably, according to the amounts due on such installment, to the persons
entitled thereof, without any discriminations or privilege;
SECOND: To the payment to the persons entitled thereto of the unpaid principal of
the Bonds which shall have become due (other than Bonds called for redemption for the
payment of which moneys are held pursuant to the provisions of this Indenture), in the
order of their due dates, with interest on such Bonds from the respective dates upon which
they become due, and if the amount available shall not be sufficient to pay in full Bonds
due on any particular date, together with such interest, then to the payment ratably,
according to the amount of principal due on such date, to the persons entitled thereto
without any discrimination or privilege; and
THIRD: To the payment of the balance, if any, to the Issuer or to whosoever may
be lawfully entitled to receive the same upon its written request, or as any court of
competent jurisdiction may direct.
(2) If the principal of all the Bonds shall have become due, all such moneys
shall be applied to the payment of the principal and interest then due and unpaid upon the Bonds,
without preference or priority of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for principal and interest, to the persons entitled
thereto without any discrimination or privilege.
40
(b) Whenever moneys are to be applied pursuant to the provisions of this Section, such
moneys shall be applied at such times, and from time to time, as the Trustee shall determine,
having due regard to the amount of such moneys available for application and the likelihood of
additional moneys becoming available for such application in the future. Whenever the Trustee
shall apply such funds, it shall fix the date (which shall be an interest payment date unless it shall
deem another date more suitable) upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the deposit with it of any such moneys and
of the fixing of any such date and shall not be required to make payment to the holder of any
Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
(c) Whenever all principal of and interest on all Bonds have been paid under the
provisions of this Section and all expenses and charges of the Trustee have been paid, any balance
remaining in the Bond Fund shall be paid as provided in Article IV hereof.
Section 7.5 Remedies Vested In Trustee. All rights of action (including the right to file
proof of claims) under this Indenture or under any of the Bonds may be enforced by the Trustee
without the possession of any of the Bonds or the production thereof in any trial or other
proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any
holders of the Bonds, and any recovery of judgment shall, subject to the provisions of Section 7.4
hereof, be for the equal benefit of the holders of the outstanding Bonds.
Section 7.6 Rights and Remedies of Bondholders. No holder of any Bond shall have
any right to institute any suit, action or proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust thereof or for the appointment of a receiver or any other
remedy hereunder, unless a default has occurred of which the Trustee has been notified as provided
in subsection (g) of Section 8.1, nor unless also such default shall have become an event of default
and the Requisite Bondholders shall have made written request to the Trustee and shall have
offered reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, nor unless also they have offered to the
Trustee indemnity as provided in Section 8.1 hereof, nor unless the Trustee shall thereafter fail or
refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding
in its, his, or their own name or names. Such notification, request and offer of indemnity are hereby
declared in every case at the option of the Trustee to be conditions precedent to the execution of
the powers and trusts of this Indenture, and to any action or cause of action for the enforcement of
this Indenture, or for the appointment of a receiver or for any other remedy hereunder, it being
understood and intended that no one or more holders of the Bonds shall have any right in any
manner whatsoever to affect, disturb or prejudice the lien of this Indenture by its, his or their action
or to enforce any right hereunder except in the manner herein provided, and that all proceedings
at law or in equity shall be instituted, had and maintained in the manner herein provided and for
the equal benefit of the holders of all Bonds then outstanding. Nothing in this Indenture contained
shall, however, affect or impair the right of any Bondholder to enforce the covenants of the Issuer
to pay the principal of and interest on each of the Bonds issued hereunder to the respective holders
thereof at the time, place, from the source and in the manner in said Bonds expressed.
41
Section 7.7 Termination of Proceedings. In case the Trustee shall have proceeded to
enforce any right under this Indenture by the appointment of a receiver, or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, and all rights, remedies and powers of the Trustee shall
continue as if no such proceedings had been taken.
Section 7.8 Waivers of Events of Default. The Trustee may in its discretion waive any
event of default hereunder and its consequences and rescind any declaration of maturity of
principal of and interest on the Bonds, and shall do so upon the written request of (1) the holders
of all of the Bonds then outstanding in respect of which default in the payment of principal or
interest exists, or (2) the Requisite Bondholders in the case of any other default; provided, however,
that there shall not be waived without the consent of all Bondholders (a) any event of default in
the payment of the principal of any outstanding Bonds at the date of maturity specified therein, or
(b) any default in the payment when due of the interest on any such Bonds unless prior to such
waiver or rescission, arrears of interest, with interest (to the extent permitted by law) at the rate
borne by the Bonds in respect of which such default shall have occurred on overdue installments
of interest or all arrears of payments of principal when due, as the case may be, and all expenses
of the Trustee in connection with such default shall have been paid or provided for, and in case of
any such waiver or rescission, or in case any proceeding taken by the Trustee on account of any
such default shall have been discontinued or abandoned or determined adversely, then and in every
such case the Issuer, the Trustee and the Bondholders shall be restored to their former positions
and rights hereunder, respectively, but no such waiver or rescission shall extend to any subsequent
or other default, or impair any right consequent thereon.
(End of Article VII)
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ARTICLE VIII
THE TRUSTEE
Section 8.1 Acceptance of the Trusts. The Trustee, before the occurrence of an Event
of Default and after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the Trustee.
(a) The Trustee may execute any of the trusts or powers hereof and perform any of its
duties by or if appointed through attorneys, agents, receivers or employees but shall be answerable
for the conduct of the same in accordance with the standard specified above, and shall be entitled
to advice of Counsel concerning all matters of trusts hereof and the duties hereunder, and may in
all cases pay such reasonable compensation to all such attorneys, agents, receivers and employees
as may reasonably be employed in connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney (who may be the attorney or attorneys for the Issuer or the
Corporation). The Trustee shall not be responsible for any loss or damage resulting from any action
or non-action in good faith in reliance upon such opinion or advice.
(b) The Trustee shall not be responsible for any recital herein, or in the Bonds (except
in respect to the certificate of the Trustee endorsed on the Bonds), or for insuring the property
herein conveyed or collecting any insurance moneys, or for the validity of the execution by the
Issuer of this Indenture or of any supplements thereto or instruments of further assurance, or for
the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby, or
for the value or title of the property herein conveyed or otherwise as to the maintenance of the
security hereof; but the Trustee may require of the Issuer full information and advice as to the
performance of the covenants, conditions and agreements aforesaid or as to the condition of the
property herein conveyed. The Trustee shall have no obligation to perform any of the duties of the
Issuer under the Financing Agreement, and the Trustee shall not be responsible or liable for any
loss suffered in connection with any investment of funds made by it in accordance with the
provisions of this Indenture.
(c) The Trustee shall not be accountable for the use of any Bonds authenticated by it
or delivered hereunder. The Trustee may become the owner of Bonds secured hereby with the
same rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any notice, request, consent,
certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and
correct and to have been signed or sent by the proper person or persons. Any action taken by the
Trustee pursuant to this Indenture upon the request or authority or consent of any person who at
the time of making such request or giving such authority or consent is the owner of any Bonds,
shall be conclusive and binding upon all future owners of the same Bond and upon Bonds issued
in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate signed
on behalf of the Issuer by its duly authorized officers as sufficient evidence of the facts therein
contained, and prior to the occurrence of a default of which the Trustee has been notified as
provided in subsection (g) of this Section, or of which pursuant to said subsection it is deemed to
43
have notice, the Trustee shall also be at liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or expedient, but may at its discretion secure
such further evidence deemed necessary or advisable, but shall in no case be bound to secure the
same. The Trustee may accept a certificate of the Issuer under its seal to the effect that an ordinance
or resolution in the form therein set forth has been adopted by the Issuer as conclusive evidence
that such ordinance or resolution has been duly adopted and is in full force and effect.
(f) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other than its gross
negligence or willful misconduct; provided, however, that the provisions of this subsection shall
not affect the duties of the Trustee hereunder, including the provisions of Article VII hereof.
(g) The Trustee shall not be required to take notice or be deemed to have notice of any
event of default hereunder (other than payment of the principal and interest on the Bonds) unless
a Responsible Officer of the Trustee shall be specifically notified in writing of such default by the
Issuer or by the holders of at least twenty-five percent (25%) in aggregate principal amount of all
Bonds then outstanding, and all notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be delivered at the principal corporate trust
office of the Trustee, and in the absence of such notice so delivered, the Trustee may conclusively
assume there is no default except as aforesaid.
(h) The Trustee shall not be personally liable for any debts contracted or for damages
to persons or to personal property injured or damaged, or for salaries or nonfulfillment of contracts
during any period in which it may be in possession of or managing the Trust Estate.
(i) At any and all reasonable times and upon reasonable prior written notice, the
Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right fully to inspect the Trust Estate, and to take such memoranda
from and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bonds or surety in respect of the
execution of the said trusts and powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall
have the right, but shall not be required, to demand, in respect of the authentication of any Bonds,
the withdrawal of any cash, the release of any property, or any action whatsoever within the
purview of this Indenture, any showings, certificates, opinions, appraisals or other information, or
corporate action or evidence thereof, in addition to that by the terms hereof required as a condition
of such action by the Trustee, deemed desirable for the authentication of any Bonds, the withdrawal
of any cash, or the taking of any other action by the Trustee.
(l) Before taking any action under this Section 8.1 or otherwise and notwithstanding
any other provision of this Indenture, the Trustee shall have the right, but shall not be required, to
demand, as a condition of any action by the Trustee in respect of the withdrawal of any cash, the
release of any property, or any action whatsoever within the purview of this Indenture, a) any
showings, certificates, opinions, appraisals or other information, or corporate action or evidence
thereof deemed appropriate by the Trustee, in addition to that required by the terms hereof, and b)
that indemnity satisfactory to Trustee in its sole discretion be furnished to it for the reimbursement
44
of all expenses to which it may be put and to protect it against all liability by reason of any action
so taken, except liability which is adjudicated to have resulted from its gross negligence or willful
misconduct in connection with any action so taken. Such indemnity shall survive the termination
of this Indenture.
(m) All moneys received by the Trustee shall, until used or applied or invested as herein
provided, be held in trust for the purposes for which they were received but need not be segregated
from other funds except to the extent required by law. The Trustee shall not be under any liability
for interest on any moneys received hereunder.
(n) If any event of default under this Indenture shall have occurred and be continuing,
the Trustee may exercise such of the rights and powers vested in it by this Indenture and shall use
the same degree of care as a prudent man would exercise or use in the circumstances in the conduct
of his own affairs.
(o) The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured Electronic
Means; provided, however, that the Issuer shall provide to the Trustee an incumbency certificate
listing designated persons authorized to provide such instructions, which incumbency certificate
shall be amended whenever a person is to be added or deleted from the listing. The Issuer shall
follow up any unsecured e-mail, facsimile transmission or other similar unsecured Electronic
Means, by immediately mailing the original documents to the Trustee. If the Issuer elects to give
the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the
Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Issuer agrees that the Trustee cannot determine the
identity of the actual sender of such instructions and that the Trustee shall conclusively presume
that instructions that purport to have been sent by an Authorized Officer listed on the incumbency
certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer shall be
responsible for ensuring that only its Authorized Officers transmit such instructions to the Trustee,
and the Issuer and its Authorized Officers are responsible to safeguard the use and confidentiality
of applicable user and authorization codes, passwords and authentication keys provided by the
Trustee, if any. The Trustee shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding
any such instruction that conflicts with or is inconsistent with a subsequent written instruction.
The Issuer agrees to assume all risks arising out of the use of such electronic methods to submit
Electronic Means to the Trustee, including without limitation the risk of the Trustee acting on
unauthorized instructions, and the risk or interception and misuse by third parties.
(p) The Trustee shall be under no responsibility to approve or evaluate any expert or
other skilled person selected by the Issuer for any of the purposes expressed in this Indenture.
(q) The Trustee shall not be deemed to have received, and shall not be liable for failing
to act upon the contents of, any notice, request, complaint, demand or communication unless and
until the Trustee actually receives such notice.
Section 8.2 Fees, Charges and Expenses of the Trustee. The Trustee, Registrar and
Paying Agent shall be entitled to payment and/or reimbursement for reasonable fees for its services
rendered hereunder and all advances, counsel fees and other expenses reasonably and necessarily
45
made or incurred by the Trustee in connection with such services. Upon an event of default, but
only upon an event of default, the Trustee shall have a right of payment prior to payment on
account of interest on or principal of any Bond for the foregoing advances, fees, costs and expenses
incurred. If the Trustee renders any service hereunder not provided for in this Indenture, or the
Trustee is made a party to or intervenes in any litigation pertaining to this Indenture or institutes
interpleader proceedings relative hereto, the Trustee shall be compensated reasonably by the Issuer
for such extraordinary services and reimbursed for any and all claims, liabilities, losses, damages,
fines, penalties, and expenses, including out-of-pocket and incidental expenses and legal fees
occasioned thereby, and fees for its services rendered in accordance with the Trustee’s then current
fee schedule for default administration. No provision of this Indenture shall require the Trustee to
expend, or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 8.3 Notice to Bondholders if Default Occurs. If an event of default occurs of
which the Trustee is by subsection (g) of Section 8.1 hereof required to take notice or if notice of
an event of default be given as in said subsection (g) provided, then the Trustee shall give written
notice thereof by registered or certified mail to the last known holders of all Bonds then outstanding
shown by the list of Bondholders required by the terms of this Indenture to be kept at the office of
the Trustee.
Section 8.4 Intervention by Trustee. In any judicial proceeding to which the Issuer is a
party and which in the reasonable judgment of the Trustee and its counsel has a substantial bearing
on the interests of holders of the Bonds, the Trustee may intervene on behalf of Bondholders and,
subject to the provisions of Section 8.1(k), shall do so if requested in writing by the Requisite
Bondholders. The rights and obligations of the Trustee under this Section are subject to the
approval of a court of competent jurisdiction.
Section 8.5 Successor Trustee. Any 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 municipal corporate 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, ipso facto, shall be and become successor Trustee hereunder and
vested with all of the title to the whole property or trust estate and all the trusts, powers, discretions,
immunities, privileges and all other matters as was its predecessor, without the execution or filing
of any instrument or any further act, deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.6 Resignation by the Trustee. The Trustee and any successor Trustee may at
any time resign from the trusts hereby created by giving thirty days’ written notice to the Issuer
and by registered or certified mail to each registered owner of Bonds then outstanding and to each
holder of Bonds as shown by the list of Bondholders required by this Indenture to be kept at the
office of the Trustee, and such resignation shall take effect at the end of such thirty (30) days, or
upon the earlier appointment of a successor Trustee by the Bondholders or by the Issuer. Such
notice to the Issuer may be served personally or sent by registered or certified mail.
46
Section 8.7 Removal of the Trustee. The Trustee may be removed at any time after
thirty (30) days’ prior written notice and payment of its fees and expenses by an instrument or
concurrent instruments in writing delivered to the Trustee and to the Issuer and signed by all the
Bondholders.
Section 8.8 Appointment of Successor Trustee by the Bondholders; Temporary Trustee.
In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall
be taken under control of any public officer or officers, or of a receiver appointed by a court, a
successor may be appointed by the owners of a majority in aggregate principal amount of Bonds
then outstanding, by an instrument or concurrent instruments in writing signed by such owners, or
by their attorneys-in-fact, duly authorized; provided, nevertheless, that in case of such vacancy,
the Issuer, by an instrument executed by one of its duly authorized officers, may appoint a
temporary Trustee to fill such vacancy until a successor Trustee shall be appointed by the
Bondholders in the manner above provided; and any such temporary Trustee so appointed by the
Issuer shall immediately and without further act be superseded by the Trustee so appointed by such
Bondholders. Every such Trustee appointed pursuant to the provisions of this Section shall be a
trust company or bank, having a reported capital and surplus of not less than Fifty Million Dollars
($50,000,000) if there be such an institution willing, qualified and able to accept the trust upon
reasonable or customary terms.
Section 8.9 Concerning Any Successor Trustees. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer an
instrument in writing accepting such appointment hereunder, and thereupon such successor,
without any further act, deed or conveyance, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor
shall, nevertheless, on the written request of the Issuer, or of its successor, execute and deliver an
instrument transferring to such successor Trustee all the estates, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and
moneys held by it as Trustee hereunder to its successor. Should any instrument in writing from the
Issuer be required by any successor Trustee for more fully and certainly vesting in such successor
the estate, rights, powers and duties hereby vested or intended to be vested in the predecessor, any
and all such instruments in writing shall, on request, be executed, acknowledged and delivered by
the Issuer. The resignation of any Trustee and the instrument or instruments removing any Trustee
and appointing a successor hereunder, together with all other instruments provided for in this
Article, shall be filed by the successor Trustee in each office, if any, where the Indenture shall
have been filed.
Section 8.10 Trustee Protected in Relying Upon Resolutions, etc. Subject to the
conditions contained herein, the resolutions, ordinances, opinions, certificates and other
instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence
of the facts and conclusions stated therein and shall be full warrant, protection and authority to the
Trustee for the release of property and the withdrawal of cash hereunder. The Trustee may act on
advice or opinion of Counsel and shall not be responsible for any loss or damage resulting from
any action or nonaction by it taken or omitted to be taken in good faith and in reliance on such
advice or opinion of Counsel. In the event the Trustee receives inconsistent or conflicting requests
and indemnity from two or more groups of holders of the Bonds, each representing less than a
majority in aggregate principal amount of the Bonds outstanding, the Trustee, in its sole discretion,
47
may determine what action, if any, shall be taken and the Trustee may, in its discretion, take other
actions.
Section 8.11 Conditions for Trustee Action. The permissive right of the Trustee to do
things enumerated in this Indenture shall not be construed as a duty. The Trustee shall be under
no obligation to institute any suit, or to undertake any action under this Indenture, or to enter any
appearance or in any way defend in any suit in which it may be made defendant, or to take any
steps in the execution of the trusts hereby created or in the enforcement of any rights and powers
hereunder, until it shall be indemnified to its satisfaction against any and all costs and expenses,
outlays and counsel fees and other anticipated disbursements, and against all liability except to the
extent determined by a court of competent jurisdiction to have been caused solely by its own gross
negligence or willful misconduct. Nevertheless, the Trustee may begin suit, or appear in and
defend suit, or do anything else in its judgment proper to be done by it as the Trustee, without
indemnity, and in such case the Trustee shall, to the extent not reimbursed, reimburse itself from
the monies available under this Indenture for all costs and expenses, outlays and counsel fees, and
expenses and other reasonable disbursements properly incurred in connection therewith and the
Trustee shall be entitled to a preference therefor over any bonds outstanding hereunder as provided
in Section 7.4.
Section 8.12 Limitations on Trustee Duties. Except for the express duties set forth in this
Indenture, the Trustee shall not be responsible for any recital herein, or in the Bonds (except with
respect to the certificate of the Trustee endorsed on the Bonds), or for the investment of monies as
herein permitted (except that no investment shall be made except in compliance with Section 6.7),
or for the recording or re-recording, filing or re-filing of this Indenture, or any supplement or
amendment thereto, or the filing of financing statements, or for the validity of the execution by the
Issuer of this Indenture, or of any Supplemental Indentures or instruments of further assurance, or
for the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby,
or for the value or title of the property herein conveyed or otherwise as to the maintenance of the
security hereof.
(End of Article VIII)
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Not Requiring Consent of Bondholders. The
Issuer and the Trustee may without the consent of, or notice to, any of the Bondholders, enter into
an indenture or indentures supplemental to this Indenture, as shall not be inconsistent with the
terms and provisions hereof, for any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of the Bondholders any
additional rights, remedies, powers or authority that may lawfully be granted to or conferred upon
the Bondholders or the Trustee or any of them;
(c) To subject to this Indenture additional revenues, properties or collateral;
(d) To make any other change in this Indenture which, is not to the prejudice of the
Trustee, the Issuer, the Corporation or the holders of the Bonds;
(e) To modify, amend or supplement the Indenture in such manner as required to
permit the qualification thereof under the Trust Indenture Act of 1939, as amended, or any similar
Federal statute hereafter in effect, and, if they so determine, to add to the Indenture such other
terms, conditions and provisions as may be required by said Trust Indenture Act of 1939, as
amended, or similar federal statute;
(f) To issue Additional Bonds in accordance with the provisions of Section 2.9 hereof;
(g) To achieve compliance by this Indenture with any applicable federal securities or
tax law; and
(h) To make amendments to the provisions of this Indenture relating to arbitrage
matters under Section 148 of the Code, if the Issuer shall provide the Trustee with an Opinion of
Bond Counsel to the effect that such amendments would not cause the interest on any Bonds
(excluding Bonds issued pursuant to Section 6.11(c) hereof) to be included in gross income of the
holders of the Bonds for federal income tax purposes.
Section 9.2 Supplemental Indentures Requiring Consent of Bondholders. Exclusive of
supplemental indentures covered by Section 9.1 hereof, and subject to the terms and provisions
contained in this Section, and not otherwise, the Requisite Bondholders shall have the right, from
time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to
and approve the execution by the Issuer and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by the Issuer for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental indenture; provided however, that
nothing in this section contained shall permit or be construed as permitting (except as otherwise
permitted in this Indenture) (a) an extension of the stated maturity or reduction in the principal
amount of, or reduction in the rate or extension of the time of paying of interest on, any Bonds,
without the consent of the holder of such Bond, or (b) a reduction in the amount or extension of
the time of any payment required by any sinking fund applicable to any Bonds without the consent
49
of the holders of all the Bonds which would be affected by the action to be taken, or (c) the creation
of any lien prior to or, except for the lien of parity obligations as provided in this Indenture, on a
parity with the lien of this Indenture without the consent of the holders of all the Bonds at the time
outstanding, or (d) a reduction in the aforesaid aggregate principal amount of Bonds the holders of
which are required to consent to any such supplemental indenture, without the consent of the
holders of all the Bonds at the time outstanding which would be affected by the action to be taken,
or (e) a modification of the rights, duties or immunities of the Trustee, without the written consent
of the Trustee, or (f) a privilege or priority of any Bond over any other Bonds, or (g) deprive the
owners of any Bonds then outstanding of the lien thereby created.
Anything herein to the contrary notwithstanding, a supplemental indenture under this
Article which may affect the amount or availability of the Series 2022 Bond proceeds to pay costs
of the Project approved by the Issuer shall not become effective unless and until the Corporation
shall have consented in writing to the execution and delivery of such supplemental indenture. In
this regard, the Trustee shall cause notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed supplemental indenture to be mailed
by certified or registered mail to the Corporation at least thirty (30) days prior to the proposed date
of execution and delivery of any such supplemental indenture.
Section 9.3 Trustee Reliance. In executing any Supplemental Indenture, the Trustee
shall receive and will be fully protected in conclusively relying upon an officer’s certificate and
an opinion of Counsel stating that the execution of such Supplemental Indenture is authorized and
permitted by this Indenture and is the legal, valid and binding obligation of the Issuer enforceable
against it in accordance with its terms. The Trustee may, but shall not be obligated to, enter into
any such Supplemental Indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.
(End of Article IX)
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ARTICLE X
MISCELLANEOUS
Section 10.1 Satisfaction and Discharge. All rights and obligations of the Issuer under
this Indenture shall terminate, and such instruments shall cease to be of further effect, and the
Trustee shall execute and deliver all appropriate instruments evidencing and acknowledging the
satisfaction of this Indenture, and shall assign and deliver to the Issuer any moneys and investments
held in any Funds under this Indenture when:
(a) all fees and expenses of the Trustee shall have been paid;
(b) the Issuer shall have performed all of its covenants and promises in this Indenture;
and
(c) all Bonds theretofore authenticated and delivered (i) have become due and payable,
or (ii) are to be retired or called for redemption under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee at the expense of the Issuer, or (iii) have been
delivered to the Trustee canceled or for cancellation; and, in the case of (i) and (ii) above, there
shall have been deposited with the Trustee either cash in an amount which shall be sufficient, or
Government Obligations, the principal of and the interest on which when due will provide moneys
which, together with the moneys, if any, deposited with the Trustee, shall be sufficient to pay when
due the principal or redemption price, if applicable, and interest due and to become due on the
Bonds and prior to the redemption date or maturity date thereof, as the case may be.
Section 10.2 Defeasance of Bonds. Any Bond shall be deemed to be paid and no longer
Outstanding within the meaning of this Article and for all purposes of this Indenture when (a)
payment of the principal and interest of and premium, if any, on such Bond either (i) shall have
been made or caused to be made in accordance with the terms thereof, or (ii) shall have been
provided for by irrevocably depositing with the Trustee in trust and irrevocably set aside
exclusively for such payment, (1) cash sufficient to make such payment, (2) Governmental
Obligations, maturing as to principal and interest in such amounts and at such times as will insure
the availability of sufficient moneys to make such payment, or (3) a combination of cash and such
Governmental Obligations, and (b) all necessary and proper fees, compensation, indemnities and
expenses of the Trustee and the Issuer pertaining to the Bonds with respect to which such deposit
is made shall have been paid or the payment thereof provided for. At such time as a Bond shall be
deemed to be paid hereunder, as aforesaid, such Bond shall no longer be secured by or entitled to
the benefits of this Indenture, except for the purposes of any such payment from such moneys or
Governmental Obligations.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the immediately
preceding paragraph shall be deemed payment of such Bonds as aforesaid until (a) proper notice
of redemption of such Bonds shall have been previously given in accordance with Section 5.3 of
this Indenture, or if the Bonds are not by their terms subject to redemption within the next
succeeding sixty (60) days, until the Issuer shall have given the Trustee in form satisfactory to the
Trustee irrevocable instructions to notify, as soon as practicable, the Owners of the Bonds, that the
deposit required by the preceding paragraph has been made with the Trustee and that the Bonds
are deemed to have been paid in accordance with this Section 10.2 and stating the maturity or
redemption date upon which moneys are to be available for the payment of the principal of and
51
the applicable redemption premium, if any, on said Bonds, plus interest thereon to the due date
thereof; or (b) the maturity of such Bonds.
All moneys so deposited with the Trustee as provided in this Section 10.2 may also be
invested and reinvested, at the written direction of the Issuer, in Governmental Obligations,
maturing in the amounts and at the times as hereinbefore set forth, and all income from all
Governmental Obligations in the hands of the Trustee pursuant to this Section 10.2 which is not
required for the payment of principal of the Bonds and interest and premium, if any, thereon with
respect to which such moneys shall have been so deposited shall be deposited in the Bond Fund as
and when realized and collected for use and application as are other moneys deposited in the Bond
Fund.
Notwithstanding any provision of any other Article of this Indenture which may be contrary
to the provisions of this Section 10.2, all moneys or Governmental Obligations set aside and held
in trust pursuant to the provisions of this Section 10.2 for the payment of Bonds (including
premium thereon, if any) shall be applied to and used solely for the payment of the particular
Bonds (including the premium thereon, if any) with respect to which such moneys or
Governmental Obligations have been so set aside in trust.
Anything in Article 9 hereof to the contrary notwithstanding, if moneys or Governmental
Obligations have been deposited or set aside with the Trustee pursuant to this Section 10.2 for the
payment of Bonds and such Bonds shall not have in fact been actually paid in full, no amendment
to the provisions of this Section 10.2 shall be made without the consent of the Owner of each Bond
affected thereby.
The right to register the transfer of or to exchange Bonds shall survive the discharge of this
Indenture.
Section 10.3 Application of Trust Money. All money or investments deposited with or
held by the Trustee pursuant to Section 10.1 or Section 10.2 shall be held in trust for the holders
of the Bonds, and applied by it, in accordance with the provisions of the Bonds and this Indenture,
to the payment, either directly or through the Trustee, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with the Trustee; but
such money or obligations need not be segregated from other funds except to the extent required
by law.
Section 10.4 Consents, etc., of Bondholders. Any consent, request, direction, approval,
objection or other instrument required by this Indenture to be executed by the Bondholders may
be in any number of concurrent writings of similar tenor and may be executed by such Bondholders
in person or by agent appointed in writing. Provided, however, that wherever this Indenture
requires that any such consent or other action be taken by the holders of a specified percentage,
fraction or majority of the Bonds outstanding, any such Bonds held by or for the account of the
Issuer shall not be deemed to be outstanding hereunder for the purpose of determining whether
such requirement has been met. Proof of the execution of any such consent, request, direction,
approval, objection or other instrument or of the writing appointing any such agent and of the
ownership of Bonds, if made in the following manner, shall be sufficient for any of the purposes
of this Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken
under such request or other instrument, namely:
52
(a) The fact and date of the execution by any person of any such writing may be proved
by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments
within such jurisdiction that the person signing such writing acknowledged before him the
execution thereof, or by affidavit of any witness to such execution.
(b) The fact of the holding by any person of Bonds transferable by delivery and the
amounts and numbers of such Bonds, and the date of the holding of the same, may be proved by a
certificate executed by any trust company, bank or bankers, wherever situated, stating that at the
date thereof the party named therein did exhibit to an officer of such trust company or bank or to
such banker, as the property of such party, the Bonds therein mentioned if such certificate shall be
deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require evidence that
such Bonds have been deposited with a bank, bankers or trust company, before taking any action
based on such ownership. In lieu of the foregoing, the Trustee may accept other proofs of the
foregoing as it shall deem appropriate.
For all purposes of this Indenture and of the proceedings for the enforcement hereof, such
person shall be deemed to continue to be the holder of such Bonds until the Trustee shall have
received notice in writing to the contrary.
Section 10.5 Limitation of Rights. With the exception of rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds is
intended or shall be construed to give to any person other than the parties hereto, the Corporation
and the holders of the Bonds, any legal or equitable right, remedy or claim under or in respect to
this Indenture or any covenants, conditions and provisions herein contained, this Indenture and all
of the covenants, conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto, the Corporation and the holders of the Bonds as herein
provided.
Section 10.6 Severability. If any provision of this Indenture shall be held or deemed to
be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any other
provision or provisions hereof or any constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance, or of rendering any other provision
or provisions herein contained invalid, inoperative, or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses or Sections in this Indenture
contained shall not affect the remaining portions of this Indenture, or any part thereof.
Section 10.7 Notices. All notices, demands, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when mailed by registered or
certified mail, postage prepaid, with proper address as indicated below; provided that notice to the
Trustee shall be effective upon receipt. The Issuer, the Corporation, and the Trustee may, by
written notice given by each to the others, designate any address or addresses to which notices,
demands, certificates or other communications to them shall be sent when required as
contemplated by this Indenture. Until otherwise provided by the respective parties, all notices,
demands, certificates and communications to each of them shall be addressed as follows:
53
To the Corporation: Potawatomi Zoological Society, Inc.
500 South Greenlawn Avenue
South Bend, Indiana 46615
Attention: Executive Director
To the Issuer: City of South Bend, Indiana
227 W. Jefferson Blvd., Suite 1200N
South Bend, Indiana 46601
Attention: Controller
To the Trustee: U.S. Bank National Association
10 West Market Street, Suite 830
Indianapolis, Indiana 46204
Attention: Corporate Trust Department
Section 10.8 Counterparts. This Indenture may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or
other electronic transmission shall constitute effective execution and delivery of this Indenture as
to the parties hereto and may be used in lieu of the original Indenture and signature pages for all
purposes.
Section 10.9 Applicable Law. This Indenture shall be governed exclusively by the
applicable laws of the State of Indiana.
Section 10.10 Immunity of Officers and Directors. No recourse shall be had for the
payment of the principal of or interest on any of the Bonds or for any claim based thereon or upon
any obligation, covenant or agreement in this Indenture contained against any past, present or
future members, officer, directors, agents, attorneys or employees of the Issuer, or any
incorporator, member, officer, director, agents, attorneys, employees or trustee of any successor
corporation, as such, either directly or through the Issuer or any successor corporation, under any
rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or
otherwise, and all such liability of any such incorporator, members, officers, directors, agents,
attorneys; employees or trustees as such is hereby expressly waived and released as a condition of
and consideration for the execution of this Indenture and issuance of such Bonds.
Section 10.11 Payments or Performance Due on Saturdays, Sundays and Holidays.
Except as specifically provided herein, if the last day for making any payment of principal of,
redemption price or interest on any Bonds or taking any action, including, without limitation,
exercising any remedy, under this Indenture shall be a Saturday, Sunday or a legal holiday or a
day on which banking institutions are authorized by law to close, then such payment may be made,
or such action may be taken, on the next succeeding business day, and, if so made or taken, shall
have the same force and effect as if made or taken on the date fixed for payment, redemption or
performance as if made on the date otherwise required by this Indenture. The amount of any
payment due under this Indenture shall not be affected because payment is made on a date other
than the date specified in this Indenture pursuant to this section.
54
Section 10.12 Force Majeure. The Trustee shall not be responsible for delays or failures
in performance resulting from acts beyond its control, including without limitation, acts of God,
strikes, lockouts, riots, acts of war or terror, epidemics, governmental regulations, fire,
communication line failures, computer viruses or failures, power failures, earthquakes or other
disasters.
(End of Article X)
IN WITNESS WHEREOF, the CITY OF SOUTH BEND, INDIANA, has caused these
presents to be signed in its name and behalf by the Mayor and its corporate seal to be hereunto
affixed and attested by its Clerk, and to evidence its acceptance of the trusts hereby created, U.S.
Bank National Association, Indianapolis, Indiana, has caused these presents to be signed in its
name and behalf by, and the same to be attested by, its duly authorized officers, all as of the day
and year first above written.
CITY OF SOUTH BEND, INDIANA
By:____________________________
Mayor
(SEAL)
Attest:
Clerk
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
Printed:
Title:
Attest:
By:
Printed:
Title:
[Signature Page to Trust Indenture]
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EXHIBIT A
Form of Series 2022 Bonds
No. 22R-1
UNITED STATES OF AMERICA
STATE OF INDIANA ST. JOSEPH COUNTY
CITY OF SOUTH BEND, INDIANA
ECONOMIC DEVELOPMENT LEASE RENTAL REVENUE BOND,
SERIES 2022 (POTAWATOMI ZOO PROJECT)
Interest
Rate
Maturity
Date
Original
Date
Authentication
Date
CUSIP
______% _________,____ __________, 2022 _________, 2022 ________
Registered Owner: CEDE & CO.
Principal Amount: __________________________________DOLLARS ($__________)
The City of South Bend, Indiana (the “Issuer”), a municipal corporation organized and
existing under the laws of the State of Indiana, for value received, hereby promises to pay in lawful
money of the United States of America to the Registered Owner listed above or registered assigns,
but solely from the payments of Lease Rental Payments hereinafter referred to pledged and
assigned for the payment hereof, the Principal Amount as set forth above, unless this Series 2022
Bond (as hereinafter defined) shall have previously been called for redemption and payment of the
redemption price made or provided for, and to pay interest on the unpaid principal amount hereof,
in like money, but solely from said payments, at the Interest Rate set forth above, payable on each
February 1 and August 1, commencing __________ 1, 20__ (each an “Interest Payment Date”)
until the Principal Amount is paid in full. Interest on this Series 2022 Bond shall be payable from
the Interest Payment Date next preceding the date of authentication thereof (the “Interest Date”),
except that: (i) if this Series 2022 Bond is authenticated on or prior to _______ 15, 20__, the
interest shall be payable from the Original Date set forth above; (ii) if this Series 2022 Bond is
authenticated on or after the fifteenth day of the calendar month immediately preceding an Interest
Payment Date (the “Record Date”), the interest shall be payable from such Interest Payment Date;
and (iii) if interest on this Series 2022 Bond is in default, interest shall be payable from the day
after the date to which interest hereon has been paid in full. Interest shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
The final principal and interest payment on this bond is payable upon presentment at the
office of U.S. Bank National Association, as trustee (the “Trustee,” “Registrar” or “Paying
Agent”), in St. Paul, Minnesota, or at the principal office of any successor trustee. All sinking
fund redemption payments and all payments of interest on this bond (except the final interest
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payment) shall be paid by wire transfer on each interest payment date to the Registered Owner as
of the Record Date at the address as it appears on the registration books kept by the Registrar or at
such other address as is provided to the Paying Agent in writing by the Registered Owner. All
payments of principal and interest on this bond shall be payable in any coin or currency of the
United States of America which on the date of such payment shall be legal tender for the payment
of public and private debts.
This bond is an authorized bond of the Issuer, designated as the City of South Bend,
Indiana, Economic Development Lease Rental Revenue Bonds, Series 2022 (Potawatomi Zoo
Project), dated ___________ ___, 2022 (the “Series 2022 Bonds”), issued pursuant to Ordinance
_______, adopted by the Common Council of the Issuer on ______________, 2022 (the “Bond
Ordinance”) and under and secured by a Trust Indenture, dated as of March 1, 2022 (the
“Indenture”), duly executed and delivered by the Issuer to the Trustee, to which reference is hereby
made for a description of the property securing the Series 2022 Bonds and any additional bonds
issued thereunder (the “Additional Bonds”) (the Series 2022 Bonds and any Additional Bonds,
collectively, the “Bonds”), and the rights under the Indenture of the Issuer, the registered owners
of the Bonds and the Trustee. The Series 2022 Bonds are limited in aggregate principal amount
of $___________________. The Series 2022 Bonds are being issued for the purpose of providing
funds to (a) finance the cost of the Project (as defined in the Indenture), (b) fund a Debt Service
Reserve Fund, and (c) pay certain of the costs incurred in connection with and on account of the
issuance of the Series 2022 Bonds. The Issuer has agreed to issue the Series 2022 Bonds and to
provide a portion of proceeds thereof to Potawatomi Zoological Society, Inc., an Indiana non-
profit corporation (the “Corporation”), pursuant to the terms of a Financing Agreement, dated as
of March 1, 2022 (the “Financing Agreement”), which prescribes certain of the terms and
conditions under which such proceeds and other funds will be used by the Corporation.
The Bonds are all equally and ratably secured by and entitled to the protection of the
Indenture. The Indenture permits the issuance of Additional Bonds under the conditions set out in
Section 2.9 thereof and allows the Issuer to terminate the security of the Indenture for Bonds by
establishing a trust fund under the conditions set out in Section 10.2 thereof. Pursuant to the
Indenture, the Trust Estate (as created and defined in the Indenture), consisting of the funds and
accounts of the Indenture and a pledge and assignment of the Lease Rental Payments (as defined
in the Indenture), is pledged and assigned by the Issuer to the Trustee as security for the Bonds.
The Bonds are issued pursuant to and in full compliance with the Constitution and laws of the
State of Indiana, particularly Indiana Code, Title 36, Article 7, Chapters 11.9 and 12 (the “Act”),
and by appropriate action duly taken by the Issuer which authorizes the execution and delivery of
the Indenture. The Series 2022 Bonds have been issued in conformity with the provisions,
restrictions and limitations of the Act. Copies of the Indenture are on file at the principal corporate
trust office of the Trustee. BY ACCEPTANCE OF THIS SERIES 2022 BOND, THE OWNER
OF THIS SERIES 2022 BOND HEREBY ACCEPTS ALL THE PROVISIONS OF THE
INDENTURE.
The Series 2022 Bonds are issuable in registered form without coupons in the
denominations of $5,000 or any integral multiple thereof. This Series 2022 Bond is transferable
by the registered holder hereof in person or by his attorney duly authorized in writing at the
principal office of the Trustee, but only in the manner, subject to the limitations and upon payment
of the charges provided in the Indenture and upon surrender and cancellation of this Series 2022
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Bond. Upon such transfer a new registered Series 2022 Bond will be issued to the transferee in
exchange therefor.
The Issuer and the Trustee may deem and treat the Registered Owner hereof as the absolute
owner hereof for the purpose of receiving payment of or on account of principal hereof and interest
due hereon and for all other purposes, and neither the Issuer nor the Trustee shall be affected by
any notice to the contrary.
The Series 2022 Bonds maturing on or after ____________ 1, 20___, are subject to
redemption at the option of the Issuer on any date on or after _________ 1, 20___, in whole or in
part, in order of maturity determined by the Issuer and by lot within maturities, at face value, plus
accrued interest to the date fixed for redemption and without premium.
The Series 2022 Bonds maturing on _________ 1, 20___, _________ 1, 20__, and
___________ 1, 20__, are subject to mandatory sinking fund redemption on the dates shown
below, in the principal amount shown below, plus accrued interest and without premium:
Term Bonds Due ________ 1, 20___
Date Amount
*
*Final maturity
Term Bonds Due _________ 1, 20___
Date Amount
*
*Final maturity
Term Bonds Due __________ 1, 20___
Date Amount
*
*Final maturity
A-4
If fewer than all of the Series 2022 Bonds at the time outstanding are to be called for
redemption, the maturities of Series 2022 Bonds or portions thereof to be redeemed shall be
selected by the Trustee at the direction of the Issuer. If fewer than all of the Series 2022 Bonds
within a maturity are to be redeemed, the Trustee shall apply moneys available for redemption on
a pro rata basis, based on the respective portion of the principal amount of Series 2022 Bonds held
by the respective owners of the Series 2022 Bonds within such maturity that shall be redeemed.
In the event any of the Series 2022 Bonds are called for redemption as aforesaid, notice
thereof identifying the Bonds to be redeemed will be given by mailing a copy of the redemption
notice by first class mail not less than thirty (30) days nor more than forty-five (45) days prior to
the date fixed for redemption to the Registered Owner of the Series 2022 Bonds to be redeemed at
the address shown on the registration books; provided, however, that failure to give such notice by
mailing, or any defect therein with respect to any registered Series 2022 Bond, shall not affect the
validity of any proceedings for the redemption of other Series 2022 Bonds.
All Series 2022 Bonds so called for redemption will cease to bear interest on the specified
redemption date, provided funds for their redemption are on deposit at the place of payment at that
time, and shall no longer be protected by the Indenture and shall not be deemed to be outstanding
under the provisions of the Indenture.
The Series 2022 Bonds, and the interest payable thereon, do not and shall not
represent or constitute a debt of the Issuer, the State of Indiana, or any political subdivision
or taxing authority thereof within the meaning of the provisions of the constitution or
statutes of the State of Indiana or a pledge of the faith and credit of the Issuer, the State of
Indiana, or any political subdivision or taxing authority thereof. The Series 2022 Bonds, as
to both principal and interest, are not an obligation or liability of the Issuer, the State of
Indiana, or of any political subdivision or taxing authority thereof, but are a special limited
obligation of the Issuer and are payable solely and only from the Trust Estate, consisting of
funds and accounts held under the Indenture and the Lease Rental Payments pledged and
assigned for payment of the Bonds in accordance with the Indenture. Neither the faith and
credit nor the taxing power of the Issuer, the State of Indiana or any political subdivision or
taxing authority thereof is pledged to the payment of the principal of or the interest on this
Series 2022 Bond. The Series 2022 Bonds do not grant the owners or holders thereof any
right to have the Issuer, the State of Indiana or its General Assembly, or any political
subdivision or taxing authority of the State of Indiana, levy any taxes or appropriate any
funds for the payment of the principal of or interest on the Series 2022 Bonds. No covenant
or agreement contained in the Series 2022 Bonds or the Indenture shall be deemed to be a
covenant or agreement of any member, director, officer, agent, attorney or employee of the
City of South Bend Economic Development Commission (the “Economic Development
Commission”) the South Bend Redevelopment Commission (the “Redevelopment
Commission”) or the Issuer in his or her individual capacity, and no member, director,
officer, agent, attorney or employee of the Economic Development Commission, the
Redevelopment Commission, or the Issuer executing the Series 2022 Bonds shall be liable
personally on the Series 2022 Bonds or be subject to any personal liability or accountability
by reason of the issuance of the Series 2022 Bonds. Under no circumstances shall the
Corporation (as defined in the Indenture) be liable for making any payments due under the
A-5
Indenture or on the Series 2022 Bonds, including any payment of principal of, premium, if
any, or interest on the Series 2022 Bonds.
The Issuer reserves the right to authorize and issue additional obligations payable from the
Lease Rental Payments on a parity with the pledge thereof to the bonds of the issue of which this
Series 2022 Bond is a part, subject to satisfaction of the conditions set forth in the Indenture.
The holder of this Series 2022 Bond shall have no right to enforce the provisions of the
Indenture or to institute action to enforce the covenants therein, or to take any action with respect
to any event of default under the Indenture, or to institute, appear in or defend any suit or other
proceedings with respect thereto, except as provided in the Indenture. Modifications or alterations
of the Indenture, or of any supplements thereto, may be made to the extent and in the circumstances
permitted by the Indenture.
A Continuing Disclosure Agreement from the Issuer to each registered owner or holder of
any 2022 Bond, dated as of the date of initial issuance of the Series 2022 Bonds (the “Agreement”),
has been executed by the Issuer, a copy of which is available from the Issuer and the terms of
which are incorporated herein by this reference. The Agreement contains certain promises of the
Issuer to each registered owner or holder of any 2022 Bond, including a promise to provide certain
continuing disclosure. By its payment for and acceptance of this bond, the registered owner or
holder of this Series 2022 Bond assents to the Agreement and to the exchange of such payment
and acceptance for such promises.
It is hereby certified that all conditions, acts and things required to exist, happen and be
performed under the laws of the State of Indiana and under the Indenture precedent to and in the
issuance of this Series 2022 Bond exist, have happened and have been performed, and that the
issuance, authentication and delivery of this Series 2022 Bond have been duly authorized by the
Issuer.
This Series 2022 Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of authentication hereon
shall have been duly executed by the Trustee.
*****
A-6
IN WITNESS WHEREOF, the City of South Bend, Indiana, in St. Joseph County, Indiana,
has caused this Series 2022 Bond to be executed in its name and on its behalf by the manual or
facsimile signature of the Mayor and its corporate seal to be hereunto affixed manually or by
facsimile and attested to by the manual or facsimile signature of its Clerk.
CITY OF SOUTH BEND, INDIANA
By:____________________________
Mayor
(SEAL)
Attest:
Clerk
CERTIFICATE OF AUTHENTICATION
This bond is one of the Series 2022 Bonds described in the within mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as
Trustee and Registrar
By:
Authorized Officer
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please Print or Typewrite Name and Address) the within Series
2022 Bond and all rights, title and interest thereon, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
SIGNATURE GUARANTEED:
NOTICE: Signature(s) must be guaranteed by NOTICE: The signature to this assignment must
an eligible guarantor institution participating corresponds with the name of the registered
in a Securities Transfer Association of a owner as it appears upon the face of the
recognized signature guarantee program. within Series 2022 Bond in every particular,
without alteration or enlargement or any change
whatever.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this certificate,
shall be construed as though they were written out in full according to applicable laws or
regulations:
UNIF TRAN MIN ACT -- Custodian
(Cust) (Minor)
under Uniform Transfers to Minors Act
(State)
TEN COM -- as tenants in common
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
B-1
EXHIBIT B
FORM OF DISBURSEMENT REQUEST FROM
THE CONSTRUCTION FUND
U.S. Bank National Association, as Trustee
10 West Market Street, Suite 1150
Indianapolis, Indiana 46204
Attention: Corporate Trust Department
Re: Requisition No. __
Disbursement of Funds from the Construction Fund
Pursuant to Section 4.5 of the Trust Indenture, dated as of March 1, 2022 (the “Indenture”),
between the City of South Bend, Indiana (the “Issuer”), and U.S. Bank National Association,
Indianapolis, Indiana, as trustee (the “Trustee”), the undersigned, as an Authorized Representative
of the Corporation, hereby requests the Trustee to pay to the Corporation or to the person(s) listed
on the disbursement schedule attached hereto (the “Disbursement Schedule”) out of the moneys
on deposit in the Construction Fund (the “Construction Fund”), the aggregate sum of
$___________, for the purpose of paying such person(s) or to reimburse the Corporation in full,
as indicated in the Disbursement Schedule and in accordance with the Financing Agreement, for
advances, payments and expenditures made by it in connection with the items listed in the
Disbursement Schedule.
In connection with this request, the undersigned hereby certifies, represents and warrants
that:
1. Each item for which disbursement is requested hereunder is properly payable out
of the Construction Fund in accordance with the terms and conditions of the Financing Agreement,
and none of those items has formed the basis for any disbursement heretofore made from the
Construction Fund.
2. Each such item is or was necessary in connection with the acquisition, construction,
equipping, installation or improvement of the property constituting the Project.
3. The disbursement hereby requested will be used to pay such person(s), or to
reimburse the Corporation in full, for each item that has formed the basis of this request as
described on the Disbursement Schedule attached hereto.
4. This request constitutes the approval of the Corporation of each disbursement
hereby requested.
5. This request and all invoices and other documentation attached hereto has been
provided to an authorized representative of the Issuer for review and approval.
B-2
6. The Issuer has had an opportunity to review this request and all invoices and other
documentation attached hereto and ask questions of the Corporation and seek additional
information.
Any terms not otherwise defined herein shall have the meaning ascribed thereto in the
Indenture.
IN WITNESS WHEREOF, an Authorized Representative of the Corporation has set his
hand as of the _____ day of ________________, 20_____.
Potawatomi Zoological Society, Inc., an Indiana non-profit corporation
By:
Printed Name:
Title:
Reviewed and approved by an Authorized Representative of the Issuer:
By: ______________________________
Printed Name: _____________________
Title: ____________________________
B-3
Disbursement Schedule
Payee Purpose Amount
C-1
EXHIBIT C
COSTS OF ISSUANCE
TOTAL ___________________
DMS 21358056v1