HomeMy WebLinkAbout1990-12-17 Resolution 26
RESOLUTION NO. 26
RESOLUTION OF THE SOUTH BEND
REDEVELOPMENT AUTHORITY AUTHORIZING
THE ISSUANCE OF THE SOUTH BEND
REDEVELOPMENT AUTHORITY TAXABLE LEASE
• RENTAL REVENUE BONDS
(AIRPORT ECONOMIC DEVELOPMENT
AREA PUBLIC IMPROVEMENT PROJECT)
AND REGARDING OTHER RELATED MATTERS
WHEREAS, the South Bend Redevelopment Authority (the
"Authority") has been created pursuant to I.C. 36-7-14.5 as a
separate body, corporate and politic, and as an instrumentality of
the City of South Bend to finance local public improvements for
lease to the South Bend Redevelopment Commission (the
"Commission");`-and
WHEREAS, the Authority intends to issue bonds in the
aggregate amount of Four Million Two Hundred Thousand Dollars
($4,200,000) pursuant to I.C. 36-7-14.5-19 to be known as the
"South Bend Redevelopment Authority Taxable Lease Rental Revenue
Bonds (Airport Economic Development Area Public Improvement
Project)" (the "Bonds"), the proceeds of which are to be used to
finance certain land and public improvements (the "Project") and
to pay the costs of issuance of the Bonds; and
WHEREAS, the Authority intends to lease the Project to
the Commission pursuant to a lease dated as of August 1, 1990 (the
"Lease"), which Lease was heretofore approved and executed by this
Authority; and
WHEREAS, there has been prepared and submitted to the
Authority a form of Trust Agreement to be dated as of December 1,
1990 between the Authority and Society Bank, Indiana, as Trustee
(the "Trust Agreement") which Trust Agreement provides for, among
other things, the issuance of such Bonds to finance the Project;
and
WHEREAS, the Authority desires to enter into an Agency
Agreement with the City of South Bend by and through its Board of
Public Works to provide for the construction of the Project by the
Board of Public Works and other related matters, a copy of which
is attached hereto as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED, by this South Bend
Redevelopment Authority as follows:
Section 1. In order to pay and finance the costs of
the Project and to pay costs of issuance, there is hereby
authorized and there shall be executed, issued, and delivered by
and on behalf of the Authority, pursuant to I.C. 36-7-14.5 et sec..,
the Bonds in the aggregate principal sum of Four Million Two
Hundred Thousand Dollars ($4,200,000).
Section 2. The Bonds shall bear interest at a rate
or rates not exceeding 11% per annum (or such lesser per annum
interest rate as the Authority may establish with the advice of its
financial advisor at the time of the publication of the notice of
intent to sell the Bonds) and shall mature serially on August 1 in
the years and in the amounts as follows:
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Year Amount Year Amount
199 6 $ 40,000 2005 $255,000
1997 50,000 2006 280,000
1998 90,000 2007 310,000
1999 125,000 2008 340,000
2000 145,.000 2009 380,000
2001 165,000 2010 420,000
2002 190,000 2011 460,000
2003 210,000 2012 510,000
2004 230,000
Section 3. The Bonds maturing on or after August 1,
1996, may be redeemed prior to maturity, at the option of the
Authority in whole or in part in whole multiples of $5,000, in
inverse order of maturity and by lot within maturities, on any date
not earlier than August 1, 1992, from any moneys made available for
that purpose, at face value plus accrued interest to the date fixed
for redemption together with a premium of three percent (3%) if
redeemed on August 1, 1992, or thereafter on or before July 31,
2000; two percent (2%) if redeemed on August 1, 2000, or thereafter
on or before July 31, 2001; one percent (1%) if redeemed on
August. 1, 2001, or thereafter on or before July 31, 2002; and
without premium thereafter.
Section 4. Said Bonds shall be issued in accoraance
with and shall be secured by a trust agreement substantially in the
form of a Trust Agreement as submitted to this meeting, with such
changes as the President and the Secretary of the Authority deem
necessary or appropriate to effectuate these resolutions and to
consummate the sale of the Bonds, said officers' execution and
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attestation thereof to be conclusive evidence of their approval of
• such changes.
Section 5. The Secretary is authorized and directed
to place a copy of the Trust Agreement in the minute book
immediately following the minutes of this meeting and said Trust
Agreement is made a part of this Resolution as if the same were
fully set forth herein.
Section 6. Prior to the sale of the Bonds, the
Secretary of the Authority shall cause to be published a notice of
intent to sell once each week for two weeks in the Tri-County News,
the South Bend Tribune and The Indianapolis Commercial. The notice
of such sale or a summary thereof may be published in Credit
Markets, a financial journal published in the City and State of New
York and/or in other newspapers, in the discretion of the
Secretary. The notice must state that any person interested in
submitting a bid for the Bonds may furnish in writing at the
address set forth in the notice,. the person's name, address, and
telephone number, and that any such person may also furnish a telex
number. The notice must also state: (1) the amount of the Bonds
to be offered; (2) the denominations; (3) the dates of maturity;
(4) the maximum rate or rates of interest; (5) the place of sale;
and (6) the time within which the name, address and telephone
number must be furnished, which must not be less than seven days
after the last publication of the notice. Each person so
registered shall be notified of the date and time bids will be
received not less than twenty-four (24) hours before the date and
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time of sale. The notification shall be made by telephone at the
number furnished by the person, and also by telex if the person
furnishes a telex number. All bids for Bonds shall be sealed and
shall be presented to the Secretary at the principal office of the
Authority, and the Secretary shall continue to receive all bids
offered until the hour fixed for the sale of the Bonds, at which
time and place he shall open and consider each bid. Bidders for
the Bonds shall be required to name the rate or rates of interest
which the Bonds are to bear, not exceeding the maximum rate set
forth herein. The interest rate on Bonds of a given maturity must
be at least as great as the interest rate on Bonds of any earlier
maturity. Bids specifying more than one interest rate shall also
specify the amount. and maturities of the Bonds bearing each rate,
and all Bonds maturing on the same date shall bear the same single
rate of interest. .Subject to the provisions contained below, the
Secretary shall award the Bonds to the bidder offering the lowest
net interest cost to the Authority, to be determined by computing
the total interest on all of the Bonds from the date thereof to
their maturities and deducting therefrom the premium bid, if any,
or adding thereto the amount of any discount, if any. No bid for
less than $4,116,000, plus accrued interest at the rate or rates
named to the date of delivery, will be considered. The Secretary
shall have full right to reject any and all bids. In the event no
acceptable bid is received at the time fixed for the sale of said
Bonds, the Secretary shall be authorized to continue to receive
bids from day to day thereafter for a period not to exceed thirty
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(30) days, without readvertising; provided, however, that if said
sale be continued, no bid shall be accepted which offers an
interest cost which is equal to or higher than the best bid
received at the time fixed for the sale of the Bonds. Prior to the
delivery of the Bonds the Secretary shall be authorized to obtain
a legal opinion as to the validity of the Bonds from Baker &
Daniels, bond counsel for the Authority, and to furnish such
opinion to the purchaser or purchasers of the Bonds. The cost of
such opinion shall be considered as part of the costs incidental
to the issuance of the Bonds and shall be paid out of proceeds of
said Bonds.
Section 7. If the President and the Treasurer, with
the advice of the financial advisor to the Authority, determine
that market conditions at the time of the sale of the Bonds are
such that the Authority is able to finance the Project by issuing
Bonds in an aggregate principal amount which is less than
$4,200,000, then the Authority shall issue such lesser principal
amount of Bonds.
Section 8. After the sale of the Bonds, the President
and the Secretary are authorized to complete the Trust Agreement
and then to execute the same on behalf of the Authority.
Section 9. The President, Vice President, and
Secretary-Treasurer of this Authority and each of them is hereby
authorized to take all such actions and to execute all such
instruments as are desirable to carry out the transactions
contemplated by this Resolution, in such forms as the President,
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Vice President, and Secretary-Treasurer executing the same shall
deem proper, to be evidenced by the execution thereof.
Section 10. The provisions of this Resolution and the
Trust Agreement shall constitute a contract between the Issuer and
the holders of the Bonds, and, after the issuance of the Bonds,
this Resolution shall not be repealed or amended in any respect
which would adversely affect the rights of such holders so long as
the Bonds or the interest thereon remains unpaid.
Section 11. The Authority hereby approves the
execution of the Agency Agreement with the City of South Bend by
and through its Board of Public Works as attached hereto as Exhibit
A and the Secretary of the Authority is hereby directed to file a
copy of the Agency Agreement with the Board of Public Works.
ADOPTED at a meeting of the Authority held on December
17, 1990, in the offices of the Authority, 1200 County-City
Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601.
CITY OF SOUTH BEND
REDEVELOPMENT AUTHORITY
BY:
Jos h Wroblewski, President
ATT T:
~~,~a..r.~s
Donald Fewell, Secretary-Treasurer
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a
TRUST AGREEMENT
Between
SOUTH BEND REDEVELOPMENT AUTHORITY
AND
SOCIETY BANK, INDIANA
South Bend, Indiana, Trustee
Dated as of December 1, 1990
(Airport Economic Development Area Taxable Public Improvement Project)
•
INDEX
Pacte
Parties, Recitals 1
Granting Claus es 2
ARTICLE I. Definitions 2
ARTICLE II. Maturities, Form, Issuance, Delivery
and Registration of Bonds 5
ARTICLE III. Funds 13
ARTICLE IV. Redemption of Bonds 16
ARTICLE V. Covenants of the Authority 19
ARTICLE VI. Insurance 25
ARTICLE VII. Remedies in Case of Default 29
ARTICLE VIII. Defeasance, Payment, Release 33
ARTICLE IX. Concerning the Trustee 34
ARTICLE X. Supplemental Agreements 38
ARTICLE XI. Miscellaneous Provisions 41
TRUST AGREEMENT
• THIS AGREEMENT (the "Agreement") , executed and dated as of the
1st day of December, 1990, made and entered into between SOUTH BEND
REDEVELOPMENT AUTHORITY, a public body. corporate and politic,
organized and existing under Indiana Code 36-7-14.5, as amended
(hereinafter called the "Authority"), and SOCIETY BANK, INDIANA,
having its principal office in the City of South Bend, Indiana
(hereinafter called the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Authority was created under and pursuant to the
provisions of Indiana Code 36-7-14.5 (hereinafter referred to as
the "Act"), for the purpose of financing local public improvements
for lease to the South Bend Redevelopment Commission (hereinafter
referred to as the "Commission"); and
WHEREAS, the Authority has determined to borrow the sum of
Four Million Two Hundred Thousand Dollars ($4,200,000) for the
purpose of procuring funds to pay the cost of the Project (as
hereinafter defined) and to execute and issue its Lease Rental
Revenue Bonds in the form and terms as hereinafter provided; and
WHEREAS, the Authority intends to lease said Project to the
Commission pursuant to a lease dated as of August 1, 1990; and
WHEREAS, in order to secure the principal of and premium, if
any, and interest on all of said Bonds and the performance of the
covenants herein contained, the Authority has in like manner
determined to execute and deliver this Agreement; and
WHEREAS, all acts, proceedings and things necessary and
required by law to make said Bonds, when executed by the Authority
and authenticated by the Trustee, the valid, binding and legal
obligations of the Authority and to constitute and make this
Agreement a valid agreement to secure the payment of the principal
of and premium, if any, and interest on the Bonds, have been done,
taken and performed, and the issuance, execution and delivery of
said Bonds, and the execution, acknowledgment and delivery of this
Agreement have,. in all respects, been duly authorized by the
Authority in the manner provided and required by law; now
therefore,
SOUTH BEND REDEVELOPMENT AUTHORITY, in consideration of the
premises and the acceptance of such Bonds by the holders thereof,
and the sum of One Dollar ($1) in hand paid by the Trustee, receipt
of which is hereby acknowledged, and especially in order to secure
the punctual payment of the .principal of, premium, if any, and
interest on the Bonds to be issued and at any time outstanding
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• hereunder as the same shall become due, according to the tenor
hereof and thereof, and the faithful performance of all the
covenants and agreements contained in said Bonds and in this
Agreement, and in performance of the authority of every kind and
nature which said Authority has or may have, has executed and
delivered this Agreement and has pledged and assigned and by these
presents does hereby pledge and assign unto Society Bank, Indiana,
as .Trustee and to its successors in said trust and to its assigns,
the Lease (as hereinafter defined) and the Pledged Funds (as
hereinafter defined) subject to the provisions of this Agreement
requiring or permitting the application thereof for the purposes
and on the terms set forth in this Agreement..
The pledge herein made is and shall be subject to the
provisions of this Agreement for the. equal and proportionate
benefit, security and protection of all holders of the Bonds issued
or to be issued under and secured by this Agreement, without
preference, priority or distinction as to lien or otherwise by
reason of the date of maturity thereof, or for any other reason
whatsoever, subject to the provisions of this Agreement.
PROVIDED, HOWEVER, that if the Authority, its successors or
its assigns, shall well and truly pay, or cause to be paid, the
principal of the Bonds and the premium, if any, and the interest
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 Agreement to be kept,
performed and observed by the Authority, 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
Agreement and the rights hereby granted shall cease, determine and
be void, but otherwise, this Agreement shall 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 Authority has agreed and
covenanted, and does hereby agree and covenant, with the Trustee
.and with the respective owners, from time to time, of the said
Bonds or any part thereof, as follows:
ARTICLE I.
Definitions
Sec. 1.01. The terms defined in this Article I shall, for
all purposes of this Agreement, and any agreement supplemental
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• hereto, have the meanings herein specified, unless the context
otherwise requires:
(a) "Agreement" or "this Agreement" means this
instrument, either as originally executed or as it may from time
to time be supplemented, modified or amended by any supplemental
agreement entered into pursuant to the provisions of this
Agreement.
(b) "Arbitrage Regulations" means the Treasury
Regulations under Section 148 of the Code, as the same may be
amended or supplemented or proposed to be amended or supplemented
from time to time.
(c) "Authority" means the South Bend Redevelopment
Authority, a body corporate and politic, or any successor entity.
(d) "Board" means the Board of Directors of the
Authority.
(e) "Bond" or "Bonds" (unless the context shall
otherwise require) means any Bond or Bonds, or all the Bonds, as
the case may be, authenticated and delivered under this Agreement.
(f) "Bondholder," "holder," "owner" and "registered
owner" means the registered owner of a Bond.
• (g) "Code" means the Internal Revenue Code of 1986., as
amended.
(h) "Commission" means the South Bend Redevelopment
Commission, or if said commission shall be abolished, the
commission, board, body or agency succeeding to the principal
functions thereof.
(i) "Construction Fund" means the Construction Fund
created and established by Section 3.01.
(j) "Government Obligations" means bonds, notes,
certificates of indebtedness, treasury bills or other securities
constituting direct obligations of, or obligations the timely
payment of the principal of and the interest on which are fully and
unconditionally guaranteed by, the United States of America or any
agency or instrumentally thereof when such obligations are backed
by the full faith and .credit of the United States of America.
(k) "Lease" means the lease by the Authority to the
Commission, dated as of August 1, 1990, as the same may be amended
or supplemented.
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• (1) "Operation and Reserve Fund" means the Operation and
Reserve Fund created and established by Section 3.03.
(m) "Pledged Funds" means (i) the proceeds from the sale
of Bonds; (ii) the rentals to be received under the Lease; and
(iii) all moneys and securities from time to time held by the
Trustee under the terms of this Agreement (except moneys or
securities held in accounts to pay for Bonds called for redemption
or with respect to which irrevocable instructions to redeem have
been given to the Trustee), including without limitation the moneys
held in trust funds.
(n) "Project" means the real estate (including all
right-of-way easements contained therein) in South Bend, Indiana,
and improvements to be made thereon by the Authority or its agent
all as described in Exhibit A hereto, which Project is to be
financed with the proceeds of the Bonds and leased to the
Commission, pursuant to the Lease.
(o) "Qualified Securities" means investments in: (i)
Government Obligations; (ii) certificates of deposit issued by
banks and mutual savings banks incorporated under the laws of the
State of Indiana and in national banking associations having their
principal banking offices in the State of Indiana, including the
Trustee, provided .such certificates of deposit do not exceed in the
aggregate ten percent (10~) of the combined capital, surplus and
. undivided profits of any such bank or association and that each
such bank or association has a combined capital and surplus of at
least $25,000,000; and provided further that such certificates of
deposit are insured by the Federal Deposit Insurance Authority or
the Federal Savings .and Loan Insurance Authority or, to the extent
not so insured, collateralized by interest-bearing obligations
described in clause (i) above in which the Trustee has a perfected
security interest; or (iii) repurchase agreements, entered into
with banks and mutual savings banks incorporated under the laws of
the State of Indiana and in national banking associations having.
their principal banking offices in°the State of Indiana, including
the Trustee, that are fully collateralized by interest-bearing
obligations described in clause (i) above based upon the market
value of such obligations on the day such agreement becomes
effective, in which the Trustee has a perfected security interest.
(p) "Redemption Price," with respect to the Bonds
outstanding under this Agreement, means the price at which the
Bonds are redeemable as set forth in Article IV of this Agreement.
(q) "Sinking Fund" means the Sinking Fund created and
established by Section 3.02.
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• (r) "Trustee" means .and includes not only the Trustee
but also its successor or successors in trust.
(s) Unless the context shall clearly otherwise indicate,
words importing the singular number shall include the plural number
in each case, and vice versa, and words importing persons shall
include firms and corporations, and terms employed in the
disjunctive form shall be deemed to be employed also in the
conjunctive form and vice versa.
ARTICLE II.
•
Maturities, Form, Issuance,
Delivery and Registration of Bonds
Sec. 2.01. The principal amount of all Bonds which may be
issued and outstanding under this Agreement shall be Four Million
Two Hundred Thousand Dollars ($4,200,000) face value. The Bonds
shall be originally dated as of the first day of the month in which
they are to be originally delivered, shall be issued in the
denomination of Five Thousand Dollars ($5,000) each, or any
integral multiple thereof and shall be numbered consecutively.
The Bonds shall mature serially on August 1 in the years and
amounts and bear interest at the rates as follows:
Year
1996
1997
1998
1999
2000
2001
2002
2003
2004
a
The interest
February 1 and
Interest shall
for a 360-day
Interest
Amount Rate Year
$40,000 2.005
50,000 2006
90,000 2007
125,000 2008
145,000 2009
165,000 2010
190,000 2011
210,000 2012
230,000
Interest
Amount Rate
$255,000
280,000
310,00.0
340,000
380,000
420,000
460,000
510,000
on all of the Bonds is payable semiannually on
August 1 of each year, beginning August 1, 1991.
be calculated on the basis of twelve 30-day months
year.
The interest on the Bonds shall be payable by check or draft
mailed one business day prior to the interest payment date to the
person in whose name each Bond is registered on the fifteenth day
of the month preceding such interest payment date. The principal
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. of , and premium on, the Bonds shal l be payable upon presentment and
surrender thereof in lawful money of the United States of America,
at the principal office of the Trustee in the City of South Bend,
Indiana.
All Bonds shall be cancelled upon their payment by the
Trustee. The Trustee shall dispose of such Bonds as permitted by
law and furnish to the Authority a certificate of their disposal,
signed by an authorized officer of the Trustee.
Sec. 2.02. The Bonds shall be executed in the name of the
Authority by the facsimile signature of the President of its Board
and attested by the facsimile signature of the Secretary-Treasurer
of the Board. In case any official whose facsimile signature
appears on the Bonds, shall cease to be such officer before the
Bonds shall be duly issued and delivered, such Bonds shall,
nevertheless, be the Bonds of the Authority and in all respects
binding and obligatory upon it to the same extent as if signed by
the officers of the Authority at the date of the actual issuance
and delivery thereof.
Sec. 2.03. Each of the Bonds shall be authenticated by a
certificate of the Trustee endorsed thereon substantially in the
form hereinafter set forth. Only such Bonds as shall bear thereon
the certificate of the Trustee shall be secured by this Agreement
or entitled to any lien or benefit hereunder, and the certificate
of the Trustee upon any such Bond executed by the Authority shall
be conclusive evidence that the Bond so authenticated has been duly
issued hereunder and is entitled to the benefits of the trust
hereby created.
Sec. 2.04. The form of said Bonds, the Trustee's
certificate to be endorsed thereon, and the registration
endorsement (with appropriate insertions of amounts and
distinguishing numbers and letters), shall be substantially as
follows:
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(Form of Bond)
•
UNITED STATES OF AMERICA
State of Indiana
County of St. Joseph
Registered
No. $
SOUTH BEND REDEVELOPMENT AUTHORITY
TAXABLE LEASE RENTAL REVENUE BOND
(AIRPORT ECONOMIC DEVELOPMENT AREA PUBLIC IMPROVEMENT PROJECT)
Interest Maturity Original Authentication
Rate Date. Date Date CUSIP
Registered Owner:
Principal Sum:
SOUTH BEND REDEVELOPMENT AUTHORITY, a body corporate and
• politic, duly organized. and existing under the laws of the State
of Indiana .(hereinafter called the "Authority"), for value
received, hereby promises to pay to the Registered Owner (named
above) or registered assigns, solely out of the Pledged Funds
(hereinafter referred to) the Principal Sum set forth above on the
Maturity Date set forth above (unless this Bond is subject to and
shall have been duly called for prior redemption. and .payment made
as provided for herein) , and to pay interest hereon soley from such
Pledged Funds until the Principal Sum shall be fully paid at the
rate per annum stated above from the interest payment date next
preceding the Authentication Date of this Bond unless this Bond is
authenticated after the fifteenth day of the month preceding an
interest payment date and on or before such interest payment date
in which case it shall bear interest from such interest payment
date., or unless this Bond is authenticated on or before July 15,
1991, in which case it shall bear interest from the Original Date,
which interest is payable on August 1 and February 1 of each year,
beginning on August 1, 1991. Interest shall be calculated on the
basis of twelve 30-day months for a 360-day year.
Interest on this Bond is payable by check or draft mailed one
business day prior to the interest payment date to the person in
whose name this Bond is registered on the fifteenth day of the
month preceding such interest payment date. Principal and premium,
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• if any, of this Bond are payable upon presentment and surrender
hereof in lawful money of the United States of America at the
principal office of Society Bank, Indiana, 202 South Michigan
Street, South Bend, Indiana 46601.
This Bond shall not be a valid obligation until duly
authenticated by the Trustee, or its successors in trust, by the
execution of the certificate endorsed hereon.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH ON THE REVERSE HEREOF WHICH SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF DULY SET FORTH HEREIN.
IN WITNESS WHEREOF, the SOUTH BEND REDEVELOPMENT AUTHORITY has
caused this Bond to be executed in its name and on its behalf by
the facsimile signature of the President of its Board of Directors
and attested by the facsimile signature of .the Secretary-Treasurer
of its Board of Directors.
ATTEST:.
• Lfacsimile)
Secretary-Treasurer, Board of
Directors
SOUTH BEND REDEVELOPMENT AUTHORITY
By ( facsimile)
President, Board of Directors
TRUSTEE'S CERTIFICATE
This Bond is one of the Bonds described in the
within-mentioned Trust Agreement.
SOCIETY BANK, INDIANA, Trustee
By
Authorized Officer
(Reverse of Bond)
This Bond is one of an authorized issue of Bonds of the South
Bend Redevelopment Authority, all of like date, tenor and effect
(except as to numbering, denomination, interest rates and dates of
maturity), in the aggregate principal amount. of Four Million Two
Hundred Thousand Dollars ($4,200,000), issued under and in
accordance with, and all equally and ratably entitled to the
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benefits of, and ratably secured by, a Trust Agreement (hereinafter.
called the "Agreement"), dated as of December 1, 1990, executed by
the Authority and Society Bank, Indiana, as Trustee, to which
reference is hereby made for a description of the rentals and other
income (the "Pledged Funds") pledged as security for the payment
of the Bonds and interest thereon and the rights under said
Agreement of the Authority, the holders of the Bonds and the
Trustee, to all of which the holders hereof, by the acceptance of
this Bond, agree.
The Authority covenants that one business day prior to
February 1 and August 1 in each year, beginning with August 1,
1991, it will pay to the Trustee, prior to the due date, solely
out of the Pledged Funds, an amount sufficient to pay the principal
and all interest as it becomes due until all of the Bonds of this
issue shall have been retired.
The Bonds of this issue maturing on or after August 1, 1996,
may be redeemed prior to maturity at the option of the Authority
in whole or in part in whole multiples of $5,000, in inverse order
of maturities and by lot within maturities, on any date not earlier
than August 1, 1992, from any monies made available for that
purpose, at face value plus accrued interest to the date fixed for
redemption together with a premium of three percent (3~) if
redeemed on August 1, 1992, or thereafter on or before July 31,
2000; two percent (2~) if redeemed on August 1, 2000, or thereafter
• on or before July 31, 2001, one percent (1~) if redeemed on August
1, 2001, or thereafter on or before July 31, 2002; and without
premium thereafter; provided notice has been given by first-class
mail to the registered owners of all Bonds to be redeemed. If this
Bond is so called for redemption, and payment is made to the
Trustee in accordance with the terms of the Agreement, this Bond
shall cease to bear interest or to be entitled to the lien of the
Agreement from and after the date fixed. for the redemption in the
call.
In case an event of default, as defined in the Agreement,
occurs, the principal of this Bond may become or may be declared
due and payable prior to the stated maturity hereof, in the manner,
and with the effect, and subject to the conditions provided in the
Agreement.
This Bond is transferable by the registered owner hereof at
the principal office of Society Bank, Indiana, upon surrender and
cancellation of this Bond and on presentation of a duly executed
written instrument of transfer and thereupon a new Bond or Bonds
of the same aggregate principal amount and maturity and in
authorized denominations will be issued to the transferee or
transferees in exchange therefor. This Bond may be exchanged upon
surrender hereof at the principal office of Society Bank, Indiana,
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• duly endorsed by the owner for the same aggregate principal amount
of Bonds of the same maturity in authorized denominations as the
owner may request. The Authority and the Trustee may deem and
treat the person in whose name this Bond is registered as the
absolute owner hereof.
The following abbreviations, when used in the inscription on
the face of the within Bond, shall be construed as though they were
written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT -
(Gust)
Custodian
(Minor)
under Uniform Gifts to Minors
ACt
(State)
Additional abbreviations may also be used though not in the
list above.
•
-10-
. ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
please insert social security or
other identifying number of assignee
(please print or typewrite
within Bond and all rights
constitutes and appoints
Attorney, to transfer the
registration thereof, with
premises.
name and address of Transferee) the
thereunder, and hereby irrevocably
___
within Bond on the books kept
full power of substitution in
Dated:
Signature Guaranteed
NOTICE: Signature(s) must be
guaranteed by a broker-dealer
. or a commercial bank or trust
company.
-.
for
the
REGISTERED OWNER NOTICE:
The signature to this
assignment must correspond
with the name of the
Registered Owner as it
appears upon the face of
the within Bond in every
particular, without
alternation or enlargement
or any change whatever.
(End of Bond Form)
Sec. 2.05. The Bonds so executed by the Authority and
authenticated by the Trustee shall be delivered by the Trustee to
the purchasers thereof in the amount, at the time, and upon the
payment of the purchase price thereof, as requested in writing by
the Authority.
Sec. 2.06. In case any Bond issued under this Agreement
shall become mutilated or be destroyed, stolen or lost, the
Authority, in its discretion, may issue, and thereupon said Trustee
shall certify and deliver in exchange for and in place and upon
cancellation of the mutilated Bond, or in lieu of and substitution
for the same if destroyed, stolen or lost, a new Bond of like
denomination and tenor, but which, in the discretion of the
-11-
Authority or the Trustee, may bear the same or a different serial
number, be marked "Duplicate," or be otherwise distinguished. In
case of destruction, theft or loss, the applicant for a substituted
Bond shall furnish to the Authority and said Trustee evidence of
the destruction of such Bond so destroyed, which evidence must be
satisfactory to the Authority and said Trustee, in their
discretion, and said applicant shall also furnish indemnity
satisfactory to both of them in their discretion.. The Authority
shall have the right to require the payment of the expense of
issuing such replacement prior to the delivery of a new Bond.
Sec. 2.07. The Trustee .shall keep, at its principal
office, a record for the registration of Bonds issued hereunder
which shall, at all reasonable times, be open for inspection by the
Authority.
Each registered Bond shall be transferable only on such record
at the principal office of the Trustee., at the written request of
the registered owner thereof or his attorney duly authorized in
writing, upon surrender thereof, together with a written instrument
of transfer satisfactory to the Trustee duly executed by the
registered owner or his duly authorized attorney.
Sec. 2.08. The Authority and the Trustee may deem and
treat the person in whose name any Bond issued hereunder shall be
registered as the absolute owner of such Bond for the purpose of
• receiving payment of or on account of the principal of said Bond,
and for all other purposes whatsoever.
Sec. 2.09. Registered owners of Bonds may, upon surrender
thereof at the principal office of the Trustee with a written
instrument of transfer satisfactory to the Trustee, exchange a Bond
or 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 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 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 Authority. The Trustee shall not be
obliged to make any transfer or exchange of any Bond called for
redemption within thirty days of .the redemption date.
-12-
ARTICLE III.
Funds
Sec. 3.01. There is hereby established and created a fund
designated as the "South Bend Redevelopment Authority Airport
Economic Development Area Public Improvement Project Construction
Fund (Taxable Improvements.)." The Construction Fund shall consist
of the following accounts: Construction Account and Bond Interest
Account.
The Trustee shall deposit in the Bond Interest Account the
accrued interest paid by the purchaser and any unused discount and
an amount equal to $ from the Bond proceeds. The
Trustee shall, without other or further authority than is hereby
given, pay from the Bond Interest Account, or if the Bond Interest
Account is not sufficient, then from the Construction Account, or
if the Bond Interest Account and the Construction Account are not
sufficient, then from the Operation and Reserve Fund created below,
interest accruing on all obligations of the Authority until the
filing of the Affidavit of Project Completion referred to below.
The Trustee shall deposit all Bond proceeds not required to
be deposited in another account into the Construction Account. The
Trustee shall pay the cost of issuance of the Bonds from such
account upon the presentation of an affidavit executed by any two
• officers of the Authority, stating the character of the
expenditure, the amount thereof, and to whom due, together with a
statement of the creditor as to the amount owing. The Trustee
shall also pay obligations incurred for labor and to contractors,
vendors, builders and materialmen, and for acquiring real estate
and improvements thereto and equipment for the .Project, the fees
and expenses of architects, engineers and construction managers and
any costs of construction and land acquisition and any other
incidental costs incurred in connection with the cost of
construction and equipment of the Project and land acquisition,
including the audit referred to in Section 5.07(c). Such payments
shall be made on presentation of a certificate of an architect or
engineer of work completed and materials or items furnished,
approved in writing by any two officers of the Authority (or,
alternatively, by any two members of the Board of Public Works of
the City of South Bend, Indiana (the "Board of Public Works"), so
long as the Agency Agreement (the "Agency Agreement") dated
December 17, 1990 between the Authority and the Board of Public
Works is in effect; the Authority has provided the Trustee with a
copy of such Agency Agreement and hereby covenants to provide the
Trustee copies of any amendments to such Agency Agreement), or in
the case of any items not subject to certification by the architect
or engineer, then upon the presentation of an affidavit executed
by any two officers of the Authority (or, alternatively, by any two
• -13-
• members of the Board of Public Works, as set forth above), 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.
Upon the filing with the Trustee of such Affidavit of Project
Completion, the Trustee shall:
(a) Transfer from the Bond Interest Account of the
Construction Fund to the Sinking Fund created by Section 3.02 an
amount sufficient. to pay principal and interest on the Bonds which
the lease rental received pursuant to the Lease hereof will not be
sufficient to pay when due; and
(b) Transfer the balance, if any, in the Bond Interest
Account to the Construction Account.
After the filing of said Affidavit of Project Completion, the
Trustee shall hold in the Construction Account an amount equal to
one hundred fifty percent (1500) of the amount of any disputed
claims of contractors and work to be repaired and transfer the
unobligated balance of the Construction Account, if any, to the
Sinking Fund referred to in Section 3.02 hereof. Any balance
remaining in the Construction Account after payment of all disputed
claims, claims for repair work, and obligations authorized by
Subsection (Third) of Section 5.12 shall be transferred to the
• Sinking Fund within ten (10) days after the last payment of such
obligations. The Trustee shall have no responsibility to see that
the Construction Fund is properly applied, except as herein
specifically provided.
Sec. 3.02. There is hereby established and created a fund
designated as the "South Bend Redevelopment Authority Airport
Economic Development Area Public Improvement Project Sinking Fund
(Taxable Improvements)." The Trustee shall deposit in such Sinking
Fund from each rental payment received by the Trustee pursuant to
the Lease, an amount equal to the following whichever is less:
(a) All of such rental payment; or
(b) An amount which, when added to the amount in the Sinking
Fund on the deposit date equals the sum of the following amounts:
(i) Unpaid interest on the Bonds due on, before or
within forty-five (45) days after the date such rental payment
becomes due; and
(ii) Unpaid principal on the Bonds due on, before or
within eight (8) months from the. date such rental payment becomes
due.
• -14-
• Any portion of a rental payment remaining after such deposit
shall be deposited by the Trustee in the Operation and Reserve Fund
provided for in Section 3.03. The Trustee shall from time to time
withdraw from such Sinking Fund, or if the Sinking Fund is not
sufficient, then from the Construction Account of the Construction
Fund, or if the Sinking Fund and the Construction Account of the
Construction Fund are not sufficient, then from the Operation and
Reserve Fund created below, and shall deposit in a special trust
fund and make available to itself, sufficient moneys for paying the
principal of the Bonds at maturity and to pay the interest on the
Bonds as the same falls due.
Sec. 3.03. There is hereby established and created a fund
designated as the "South Bend Redevelopment Authority Airport
Economic Development Area. Public Improvement Project Operation and
Reserve Fund (Taxable Improvements)." The Operation and Reserve
Fund shall be used only to pay necessary incidental expenses of the
Authority (e.g. required audits, appraisals, meetings and reports),
the payment of principal, interest and redemption premiums of the
Bonds herein described upon redemption as authorized by Article IV
hereof or the purchase price of Bonds purchased as authorized by
Sec. 3.07, and. if the amount in the Sinking Fund at any time is
less than the required amount, the Trustee shall, without any
further authorization, transfer funds from the Operation and
Reserve Fund to the Sinking Fund in an amount sufficient to raise
• the amount in the Sinking 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 Agreement. Incidental
expenses shall be paid by the Trustee upon the presentation of an
affidavit executed by any. two (2) officers of the Authority,
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. The Operation and Reserve Fund may also be used for
purposes stated in Section 5.11.
Sec. 3.04. Pursuant to the written instructions of the
Authority, the Trustee shall establish and maintain such fund or
funds and take such other actions as may be necessary to enable the
Authority to satisfy the requirements of Section 148 (f) of the Code
and the Arbitrage Regulations; provided, however, that the Trustee
shall be under no obligation to make computations of the amount of
arbitrage required to be rebated to the federal government of the
United States of America.
Sec. 3.05. The Trustee shall, at the written direction of
the Authority, and subject to Section 5.14, invest all or so much
of the funds as is practicable in Qualified Securities, to the
extent and in the manner permitted by law. Investment earnings
shall be deposited into the Construction Fund until receipt by the
• -15-
• Trustee of an Affidavit of Project Completion as provided in
Article III, and thereafter,. shall be credited to the fund from
which the investments were made. The Trustee is authorized to sell
any securities so acquired from time to time in order to make the
payments authorized in this Agreement. Investment of the Sinking
Fund shall mature prior to the time the funds invested will be
needed for payment of principal of and interest on the Bonds.
Sec. 3.06. Whenever the amounts contained in the Sinking
Fund and the Operation and Reserve Fund are sufficient, together
with any other funds deposited with the Trustee by the Authority,
to redeem, upon the next redemption date, all Bonds secured hereby
then outstanding, the Trustee shall apply the amounts in such Funds
to the redemption of such Bonds pursuant to Article IV hereof.
Sec. 3.07. At the request of the Authority, expressed by
a resolution of the Board of Directors, or a copy thereof certified
by the Secretary-Treasurer and delivered to the Trustee, the
Trustee may remove funds from the Operation and Reserve Fund to be
used for the redemption of Bonds, or for the purchase of Bonds if
the Authority and Trustee agree that redemption or purchase of
Bonds would be advantageous. to the Authority.
Sec. 3.08. A pledge of all moneys paid or deposited into
the Sinking Fund, and of all rentals paid pursuant to the Lease
other than pursuant to Section 3(b) thereof, is hereby made, and
. the same are hereby pledged to the Trustee to secure the payment
of the principal and redemption price of and interest on the Bonds,
all to the extent herein provided. The rentals so pledged and
hereafter received by the Trustee or Authority, shall immediately
be subject to the lien of such pledge without any physical delivery
thereof or further act; and the lien of such pledge shall be valid
and binding as against all parties having claims of any kind in
tort, contract or otherwise against the Authority, irrespective of
whether such parties have notice thereof.
ARTICLE IV.
Redemption of Bonds
Sec. 4.01. The Authority shall have the right, at its
option, to redeem, according to the procedure hereinafter provided,
all or any part. of the Bonds secured by this Agreement maturing on
or after August 1, 1996, in whole multiples of $5,000, in inverse
order of maturities and by lot within maturities, on any date not
earlier than August 1, 1992, from any moneys made available for
that porpose at face value plus accrued interest to the date fixed
for redemption together with a premium of three percent (3~) if
redeemed on August 1, 1992, or thereafter on or before July 31,
• -16-
• 2000; two percent (2~) if redeemed on August 1, 2000, or thereafter
on or before July 31, 2001; one percent (1~) if redeemed on
August 1, 2001, or thereafter on or before July 1, 2002; and
without premium thereafter.
Sec. 4.02. To evidence its intention to exercise the right
of redemption, the Authority 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 Authority desires to redeem. If less than all of
the outstanding Bonds are to be redeemed, then the Bonds shall be
redeemed in inverse order of maturity and by lot (in such manner
as the Trustee shall determine) within maturities. No defect in
such notice by the Authority to the Trustee shall affect the
validity of the redemption of any Bonds.
Sec. 4.03. Official notice of such redemption shall be
sent first-class mail by the Trustee to the registered owners of
all Bonds to be redeemed, not less than thirty (30) days prior to
the date fixed for redemption. Said official notice shall be dated
and shall, with substantial accuracy:
(a) Designate the date and places of redemption, said places
to be the offices of the Trustee;
• (b) If the Bonds to be redeemed are less than the whole
amount outstanding., designate the Bonds (or portions thereof) to
be redeemed; and
(c) State that on the designated .date fixed for said
redemption said Bonds shall be redeemed by the payment of the
applicable redemption price hereinbefore set forth, and that from
and after the date so fixed for such redemption interest on the
Bonds so called for redemption shall cease.
In all cases, the cost and expenses of the preparation and
mailing of said official notices of redemption shall be paid by the
Authority.
In addition to the foregoing notice, further notice may be
given by the Trustee as it deems appropriate by mail, publication
or otherwise to registered securities depositories, national
information services or others containing the above information and
such further information as the Trustee may deem appropriate, but
no defect in said further notice, nor any failure to give all or
any portion of such further notice shall in any manner defeat the
effectiveness of a call for redemption if notice thereof is given
as above described.
• -17-
• Sec. 4.04. Such notice having been .mailed as above
provided, the Bonds designated for redemption shall, on the date
specified in such notice, become due and payable at the then
applicable redemption price, and on presentation and surrender of
such Bonds in accordance with such notice, at the place at which
the same are expressed in such notice to be redeemable, such Bonds
shall be redeemed by the Trustee on behalf of the Authority by the
payment of such redemption price to the registered owners out of
funds held by the Trustee for that purpose. From and after the
date of redemption so designated, unless default shall be made in
the redemption of the Bonds upon presentation, interest on Bonds
designated for redemption. shall cease. If not so paid on
presentation thereof, the Bands shall continue to bear interest at
the rate therein specified.
Sec. 4.05. All Bonds so redeemed (or purchased as
authorized by Sec. 3.07) shall be cancelled and disposed of as
provided in Section 2.01. Bonds so redeemed or purchased shall not
be reissued, nor shall any Bonds be issued in lieu thereof.
Sec. 4.06. If the amount necessary to redeem any Bonds
called for redemption, as aforesaid, shall have been deposited with
the Trustee for the account of the owner or owners of such Bonds
on or before the date specified for such redemption, and if the
notice hereinbefore mentioned shall have been duly mailed or
. provision satisfactory to the Trustee shall have been made for the
mailing of such notice, and if all proper charges and expenses of
the Trustee in connection with such redemption shall have been paid
or provided for, the Authority shall be released from all liability
on such Bonds and such Bonds shall no longer be deemed to be
outstanding hereunder, and interest thereon shall cease at the date
specified for such redemption; and thereafter such Bonds shall not
be secured by the lien of this Agreement. The Trustee shall be
privileged to give notice of any call for redemption, but shall not
be required to do so unless the amount necessary to redeem the
Bonds called and to pay all proper charges of the Trustee shall
have been deposited with, paid to, or otherwise made available to
the Trustee, as aforesaid. In case any question shall arise as to
whether any such notice shall have been sufficiently given or any
such redemption shall be effective, such question shall be decided
by the Trustee, and the decision of the Trustee shall be final and
binding upon all parties in interest.
. -18-
• ARTICLE V.
Covenants of the Authority
Sec. 5.01. The Authority covenants and agrees that it will
faithfully do and perform, and at all times faithfully observe, any
and all covenants, undertakings, stipulations and provisions
contained in each and every Bond issued hereunder, and will duly
and punctually pay or cause to be paid the principal of said Bonds
and the premium, if any, and interest thereon, at the times and
places, and in the manner mentioned in said Bonds, according to the
true intent and meaning thereof. Except as in this Agreement
otherwise provided, the principal, interest and premiums are
payable soley from Pledged Funds including the rental derived from
the Project, which Pledged Funds are hereby pledged to the payment
thereof in the manner and to the extent provided in this Agreement
and in said Bonds.
Sec. 5.02. The Authority covenants that it will promptly
make, execute and deliver all agreements supplemental hereto, or
otherwise, and take all such action as may be reasonably be deemed,
by the Trustee or by its counsel, necessary or advisable for the
better securing of any Bonds issued hereunder, or as may be
required to carry out the purposes of this Agreement.
Sec. 5.03. The Authority covenants that, except as to that
. part of the Project which may hereafter be acquired by it, the
Authority has heretofore acquired the Project, subject only. to
Permitted Encumbrances, defined in the Lease, and such other
encumbrances as shall be permitted by the Trustee, and has good
right, full power and lawful authority to make this Agreement and
to pledge the lease rentals of the Project as herein provided, and
that it has and will preserve all of its interest in all such
property, subject to Permitted Encumbrances, as such term is
defined in the Lease, and such other encumbrances as shall be
permitted by the Trustee, and will warrant and defend the same to
the Trustee against the claims of all persons whatsoever.
Sec. 5.04. The Authority covenants that it will promptly,
and before they shall become delinquent, pay or cause to be paid
all lawful taxes, charges and assessments at any time levied or
assessed upon or against the Project, or any part thereof, or upon
the use of the same, or upon the income or profits thereof, and all
license fees, franchise taxes and other like statutory charges;
provided, however, that no such tax, charge or assessment shall be
required to be paid so long as the validity of the same shall be
in good faith contested by the Authority; further, that it will not
suffer any lien or charge to be enforced or to exist against the
Project or any part thereof, or upon the Lease or the Pledged
Funds, except the lien and charge of the Bonds secured hereby upon
• -19-
• such Lease and Pledged Funds, and except. for Permitted
Encumbrances, as such term is defined in the Lease, and such other
encumbrances as shall be permitted by the Trustee; that it will not
commit or suffer any waste of said property; and that it will at
all times, directly or through other appropriate .governmental
entities, operate the property and keep and maintain said property
and all buildings, structures, apparatus and appurtenances thereon
or thereof in good repair, working order and condition, and will
from time to time make, or cause to be made, all needful and proper
repairs, renewals and replacements.
Sec. 5.05. The Authority covenants that until all
indebtedness secured by this Agreement is fully paid, it will
faithfully observe and comply with the terms of all applicable laws
and ordinances of the State of Indiana and any political or
municipal subdivision thereof.
Sec. 5.06. If the Authority should at any time fail to pay
in apt season any tax, assessment or other charge upon the Project,
or any part thereof, or fail to pay promptly when payable any
license fee, franchise or corporation tax, or like statutory
charge, the Trustee may, without obligation to inquire into the
validity thereof, pay such tax, assessment, fee or other charge,
but without prejudice to the rights of the Trustee arising
hereunder in consequence of such default, and the amount of every
payment so made at any time by the Trustee, with interest thereon
• at the highest rate of interest on any one of the Bonds when sold,
whether or not then outstanding, from the date of payment, shall
constitute an additional indebtedness of the Authority secured. by
the lien of this Agreement, prior or paramount to the lien
hereunder of any of said Bonds and the premium and interest
thereon.
Sec. 5.07. The Authority covenants that proper books of
record and account will be kept in which full, .true and correct
entries will be made of all dealings or transactions of or in
relation to the properties.,. business affairs of the Authority, and
that it will:
(a) At such times as the Trustee shall reasonably
request, furnish statements in reasonable detail showing the
earnings, expenses and financial condition of the Authority.
(b) From time to time furnish to the .Trustee such
information as to the property of the Authority as the Trustee
shall reasonably request.
(c) On or before the expiration of one hundred twenty
(120) days after the completion of the Project, furnish to the
Trustee a full audit and report, certified by independent certified
-20-
. public accountants, covering .the operations of the Authority to the
completion of construction, and showing the receipts and
disbursements for such period, and the assets and liabilities of
the Authority at the expiration. of such period. Such financial
statements and reports shall be available at all reasonable times
for the inspection of any Bondholder or his authorized agent.
If the Authority shall fail to obtain and furnish such
audit and report, the Trustee may, in its discretion, procure such
audit and report, and pay for the same from the Operation and
Reserve Fund, unless there are not sufficient funds in said Fund,
in which case all moneys paid by the Trustee for such audit and
report, together with interest thereon at the highest rate of
interest on any. of the Bonds when sold, whether or not then
outstanding, shall be repaid by the Authority upon demand, and
shall constitute an additional indebtedness of the Authority
secured by the lien of this Agreement, prior and paramount to the
lien hereunder of said Bonds and premium and interest thereon. The
Trustee, however, shall not be obligated to obtain such audit and
report unless fully indemnified against the expense thereof and
furnished with means therefor.
(d) On or before the expiration of ninety (90) days
after the end of each calendar year, file with the Trustee a
certificate signed by its President or Vice President, and its
Secretary-Treasurer, stating that all taxes then due on the Project
• have been duly paid (unless the Authority shall, in good faith,
contest any of said taxes, in which event the facts concerning such
contest shall be set forth); also stating that all insurance
premiums required by the terms of the Agreement to be paid by the
Authority upon the Project have been duly paid.
The Authority further covenants that all books, documents and
vouchers relating to the properties, business and affairs of the
Authority shall at all times be open to the inspection of such
accountants or other agents as the Trustee may from time to time
designate.
Sec. 5.08. The Authority covenants that. it will not
guarantee, endorse or otherwise become surety for or upon the
indebtedness of others except by endorsement of negotiable
instruments for deposit or collection in the ordinary course of
business, and that it will not sell its accounts receivable.
Sec. 5.09. The Authority covenants that it will not
acquire any property, real or personal, subject to an existing
mortgage or other encumbrance, except as permitted by Sec. 5.11.
Sec. 5.10. The Authority covenants that it will not incur
any indebtedness secured by this Agreement other than the Bonds
-21-
unless either (a) the Project cannot be completed without
unreasonable delay which would threaten a default in the payment
of .principal or interest on the Bonds without such additional
indebtedness, and such additional indebtedness is payable only from
the Operation and Reserve Fund (to the extent that such Fund is not
needed to pay necessary incidental expenses of the Authority) and
from property and income of the Authority remaining or received
after all Bonds authorized herein have become due and payable and
sufficient funds have been provided to pay all principal and
interest due on such Bonds and all fees of the Trustee then due and
payable, or (b) such additional indebtedness is payable soley from
income of the Authority other than the rental payments provided for
in the Lease as long as any of the Bonds are outstanding. This
section shall not be construed to prohibit the issuance of
refunding Bonds and the pledging of lease rentals to be received
after the redemption of the Bonds.
Sec. 5.11. The Authority covenants that the proceeds of
the Bonds deposited in the Construction Account shall be used for
the following purposes:
(First) The payment of the balance, if any, of the purchase
price of the real estate herein specifically described;
(Second) The payment of the cost of construction of the
Project on said real estate in accordance with the provisions of
Section 5.12 hereof. The cost of erection shall include but not
be limited to the items set forth in Sec. 3.01 hereof.
(Third). Any balance in excess of one hundred fifty percent
(150%) of the amount of any disputed claims of contractors and work
to be repaired remaining after the completion of the Project in
accordance with Sec. 5.13 hereof may be obligated within a period
of one (1) year thereafter for any one or more of the following
purposes upon written request of the Lessee:
(a) For the purchase of equipment for said Project; or
(b) For the improvement of said Project. '
(Fourth) Any balance in excess of one hundred fifty percent
(1500 of the amount of any. disputed claims of construction and
work to be repaired remaining unobligated after one (1) year from
the filing. of the affidavit referred to in Sec. 3.01 shall be
transferred to the Sinking Fund as provided in Sec. 3.01.
(Fifth) Any balance remaining after payment of all
obligations authorized by Subsection .(Third) above, shall be
transferred to the Sinking Fund within ten (10) days after the last
payment of such obligations.
-22-
Sec. 5.12. The Authority covenants that it has entered
into a valid and binding Lease of the Project to the Commission,
and that a full, true and correct copy of said Lease is on file
with the Trustee. The Authority covenants further that it will
bring suit to mandate the governing board or officials of the
Lessee to levy a tax to pay the rental provided in said Lease, or
take such other action to enforce the Lease as is reasonably
requested by the Trustee, if such rental is more than sixty (60)
days in default. The Authority further covenants that, upon the
receipt by the Trustee of the proceeds of the Bonds secured hereby,
it will forthwith proceed to construct the Project in accordance
with such plans and specifications referred to in said Lease, and
will complete such construction with all expedition practicable in
accordance with the plans and specifications, together with such
changes therein as may be authorized by the Authority pursuant to
this Section. The Authority further covenants that it will not
authorize, approve or permit any changes to be made in such plans
and specifications unless all of the following conditions exist:
(a) the proposed changes in the plans and specifications
are approved in writing by the South Bend Redevelopment Commission,
as Lessee, and, if such proposed changes, together with all other
changes previously made, will increase the original cost of the
Project in an amount exceeding Four Hundred Thousand Dollars
($400,000), then by the original purchaser of the Bonds, or if the
• purchaser is more than one investment house, by the manager of such
syndicate;
(b) the proposed changes in the plans and specifications
will not alter the character of the Project nor reduce the value
thereof; and
(c) the proposed changes in the plans and specifications
will not result in an increase in the cost of construction of said
Project exceeding the amount of the uncommitted funds. of the
Authority on hand which are not required for the completion of the
Project in accordance with the plans and specifications adopted
prior to the execution of said Lease, interest on the Bonds during
the construction period, and the payment of the incidental expenses
incurred in connection with said Project.
Prior to the completion of the Project in accordance with the
provisions of this section, performance of additional construction
work or the purchase of equipment not specified in the
above-mentioned Lease or incorporated therein by reference to the
plans and specifications shall be deemed a change or modification
in the plans and specifications subject to the requirements of this
Section.
. -23-
Except for changes made in the plans and specifications
pursuant to this Section,. the Authority covenants that it will not
agree to any modification of the terms of said Lease which would
substantially impair or reduce the security of the holders of the
Bonds described herein or agree to a termination thereof, or agree
to a reduction of the lease rental provided for therein which would
inhibit payment of debt service on the Bonds until all indebtedness
secured by this Agreement is fully paid, except upon compliance
with the provisions of Sec. 10.02. The Authority further covenants
that any modification permitted by this paragraph will be made only
after a copy thereof has been filed with the Trustee.
Sec. 5.13. The Authority covenants that whenever there are
sufficient funds held by the Trustee in the Sinking Fund and/or
Operation and Reserve Fund to pay the principal, redemption
premiums and interest to the next interest payment date on all
outstanding Bonds, it will call all outstanding Bonds for
redemption and hereby consents and directs the Trustee to call all
outstanding Bonds for redemption.
Sec. 5.14. (a) The Authority, at its cost and expense,
shall obtain on the date of original issuance of the Bonds a
commitment for an owner's policy. of title insurance insuring the
marketable indefeasible fee simple title or right-of-way easement
of the Authority in the Project in an amount equal to the costs of
acquisition and construction of the Project; provided however, that
in the case of those portions of the Project for which the final
costs of acquisition and construction cannot be precisely defined
as of the date of original issuance of the Bonds, the Authority
shall apply for and use its best efforts to obtain an increase in
the amount of the commitment for title insurance pertaining to
those portions of the Project in an amount equal to the final costs
of acquisition and construction upon completion of such acquisition
and construction. As the real property interests constituting part
of the Project are obtained by the Authority, all such policies of
title insurance obtained pursuant to such commitments shall be in
substantial conformity to the title insurance commitments attached
hereto as Exhibit B and incorporated herein by reference, free of
all standard (preprinted) exceptions and all special exceptions,
other than Permitted Encumbrances (as such term is defined in the
Lease).
(b) The Authority hereby assigns to the Trustee all proceeds
payable under the owner's policies referred to in this Section 5.16
and all of the insured's rights thereunder, the full amount of
which proceeds shall be paid directly to the Trustee by the title
insurers referred to above. The Trustee is hereby authorized to
demand, .collect and receipt for and recover any and all insurance
moneys which may become due and payable under the owner's policies
and to prosecute. all necessary actions in the courts to recover any
-24-
such insurance moneys. The Trustee may, however, accept any
settlement or adjustment which the Trustee may deem it advisable
to make with such title insurers. The Trustee may reimburse itself
from any such insurance money for the costs and expenses incurred
by the Trustee in connection with (i) demanding, collecting and
recovering the insurance moneys and (ii) any related court action,
settlement or adjustment, including without limitation, attorney
fees (the "Collection Costs"). All insurance moneys collected or
recovered under the owner's policies referred to above, less
Collection Costs, shall be used, at the Trustee's option, either
(i) to cure title defects and/or obtain marketable, indefeasible
fee simple title or a right-of-way easement to the Project or (ii)
redeem the Bonds or portions thereof on the earliest possible
redemption date.
ARTICLE VI.
Insurance
Sec. 6.01. The Authority covenants that during the
construction of the Project, it will carry or will cause other
persons to carry for its benefit the following kinds of insurance:
(a) Builder's risk insurance in the amount of one
hundred percent (1000 of the insurable value of the Project
against physical loss or damage thereto, however caused, with such
exceptions as are ordinarily required by insurers of buildings or
facilities of a similar type. Such .insurance shall be carried in
completed value form.
(b) Bodily injury and property damage insurance naming
the .Authority as an insured against claims for damages for bodily
injury, including accidental death, as well as claims for property
damages which may arise from such construction. Such insurance
shall be carried for not less than the following limits of
liability for the policies indicated:
Combined bodily injury insurance, including
accidental death, and property damage insurance in an amount not
less than One Million Dollars ($1,000,000) on account of one
occurrence; or, in the alternative:
Bodily injury insurance in an amount not less than
One Million Dollars for injuries, including accidental death, to
any one (1) person, and in an amount not less than One Million
Dollars on account of one (1) accident; and
Property damage insurance in an amount not less than
Five Hundred Thousand Dollars on account of any one (1) accident
-25-
• and in an amount not less than Five Hundred Thousand Dollars in the
aggregate during each policy period, each of which shall be not
longer than one year.
The Authority further covenants that all contracts for the
construction of said Project will or do require the contractor to
carry such insurance as will protect the contractor from liability
under the Indiana Workers' Compensation and Workers' Occupational
Diseases Acts. Certificates of the insurance coverage required
under Subsection (b) of this section and the preceding sentence
shall be furnished to the Trustee.
Sec. 6.02. The Authority covenants that, after the
completion of the Project, it will carry or cause to be carried:
(a) Insurance on the Project against physical loss or
damage thereto, however caused, with such exceptions as are
ordinarily required by insurers of buildings or facilities of a
similar type, which insurance shall be in an amount at least equal
to the greater of (i) the option to purchase price under the Lease,
or (ii) one hundred percent (1000 of the full replacement cost of
the Project as certified by a registered architect, a registered
engineer, or a professional appraisal engineer selected by the
Authority with the approval of the Trustee, on the effective date
of such insurance and on or before April 1 of each year thereafter
(such appraisal may be based on a recognized index of conversion
factors); provided that such certification shall not be required
so long as the amount of such insurance shall be in an amount at
least equal to the option to purchase price under the Lease; such
insurance may contain a provision for a deductible in an amount not
exceeding $10,000; and
(b) Rent or rental value insurance in an amount least
equal to the full rental value of the Project for a period of two
(2) years against physical loss or damage of the type insured
against under Sec. 6.02(a) above; and
(c) Public liability and property damage insurance in
amounts customarily carried for similar properties; provided
however, that, notwithstanding Sec. 6.03, such insurance may be
provided under the public liability self insurance program of the
City of South Bend.
Sec. 6.03. Except as provided in Sec. 6.02(c), such
insurance policies shall be maintained in insurance companies rated
B+ or better by A.M. Best Company (or a comparable rating service
if A.M. Best Company ceases to exist or rate insurance companies),
and shall be countersigned by an agent of the insurer who is a
resident of the State of .Indiana. A copy of such policies and the.
architect's or engineer's certificates referred to in Sec. 6.02(a)
-26-
shall be deposited with the Trustee. Such schedule shall contain
the names of the insurers, the amounts of each policy, the
character of .the risk insured against, the expiration date of each
policy, the premium paid thereon, and any other pertinent data.
Sec. 6.04. In case the Authority shall at any time refuse,
neglect or fail to obtain and furnish such certificate or to effect
insurance as aforesaid, the Trustee may, in its discretion, procure
such certificate and/or such insurance, and all moneys paid by the
Trustee for such certificate and/or insurance, together with
interest thereon at the highest rate of interest on any of the
Bonds when sold, whether or not then outstanding, shall be repaid
by the Authority upon demand, and shall constitute an additional
indebtedness of the Authority secured by the lien of this
Agreement, prior and paramount to the lien hereunder of said Bonds
and interest thereon. The Trustee, however, shall not be obligated
to effect such insurance unless fully indemnified against the
expense thereof and furnished with means therefor.
Sec. 6.05. The insurance policies required by Section 6.01
and Section 6.02 shall be for the benefit, as their interests
shall appear, of the Trustee, the Authority, and other persons
having an insurable interest in the insured property. Such
policies shall clearly indicate that any proceeds under the
policies shall be payable to the Trustee, and the Trustee is hereby
authorized to demand, collect and receipt for and recover any and
. all insurance moneys which may become due and payable under any of
said policies of insurance and to prosecute all necessary actions
in the courts to recover any such insurance moneys. The Trustee
may, however, accept any settlement or adjustment which the
officers of the Authority may deem it advisable to make with the
insurance companies. Any proceeds of rent or rental value
insurance received by the Trustee representing the annual rentals
payable under the Lease shall be deposited by it forthwith to the
credit of the Sinking Fund.
Sec. 6.06. The proceeds of such insurance received by the
Trustee shall be applied to the repair, replacement or
reconstruction of the damaged or destroyed property, if in the
opinion of an independent registered architect, registered
engineer, construction manager or contractor, which architect,
engineer, construction manager or contractor shall be acceptable
to the Trustee (i) the cost of such repair, replacement or
reconstruction shall not exceed the amount of insurance proceeds
to be received by reason of such damage or destruction and other
amounts available therefor, and (ii) such repair, replacement or
reconstruction can be completed within the period covered by the
rental value insurance. Such proceeds shall be held and disbursed
by the Trustee in the manner and upon the showings provided for in
Sec. 3.01 hereof, except that the Trustee may release such
-27-
• proceeds, or a part thereof, upon a
Trustee that repairs have been made.
both conditions shall not exist, th
received by the Trustee shall be used
showing satisfactory to the
and paid for. If either or
e proceeds of such insurance
to redeem Bonds.
Sec. 6.07. In the event the Authority shall not commence
to repair or replace the portion of the Project so damaged or
destroyed within ninety (90) days after any such loss or damage,
or the Authority, having commenced such work of repair or
replacement, shall abandon or fail diligently to prosecute the
same, the Trustee may, in its discretion, make or complete such
repairs or replacements, and if it shall elect so to do, may enter
upon said premises to any extent necessary. for-the accomplishment
of such purposes, but nothing herein contained shall obligate the
Trustee to make or complete any such repairs or replacements unless
it shall have been requested to do so by the holders of not less
than twenty-five percent (25~) in aggregate principal amount of all
Bonds outstanding hereunder, and shall have been indemnified to its
satisfaction against all loss, damage and expense which it might
thereby incur.
Sec. 6.08. In case the Authority shall neglect, fail or
refuse to proceed forthwith in good faith with the repair or
replacement of the Project which shall have been so destroyed or
damaged, and such negligence, failure or refusal shall continue for
one hundred twenty (120) days, the Trustee, upon receipt of the
. insurance moneys, shall (unless the Trustee proceeds to make the
repairs or replacements of the destroyed or damage property as
above provided) transfer such proceeds to the Sinking Fund.
Sec. 6.09. If, at any time, the Project is totally or
substantially destroyed and the amount of insurance money received
on account thereof by the Trustee is sufficient to redeem all of
the then outstanding Bonds hereunder and such Bonds are then
subject to redemption, the Authority, with the written approval of
the Commission, may direct the Trustee to use said moneys for the
purpose of calling for redemption all of the Bonds issued and then
outstanding under this Agreement at the then current redemption
price.
Sec. 6.10. In the event of any reconstruction of all or
a portion of the Project after substantially total destruction of
all or a portion thereof, a new building, buildings or improvements
or portions thereof may be constructed on the site by the Authority
in accordance with plans and specifications which must be
satisfactory to the Trustee and the Lessee of such Project, and
such new building or buildings or improvements or portions thereof
may be wholly different in design or construction.
• -28-
Sec. 6.11. The Trustee may accept the statements,
affidavits and certificates hereinabove in this Article VI provided
to be filed with the Trustee, as conclusive evidence of the facts
therein stated, but the Trustee (although under no obligation so
to do) may, at the. expense of the Authority, require further or
other evidence of such matters and may rely on the report or
opinion of such architect, engineer, other person, or counsel, as
it may select for the purpose of making an investigation thereof.
ARTICLE VII.
Remedies in Case of Default
Sec. 7.01. If any of the following events occurs, it is
hereby defined as and is declared to be and to .constitute an "event
of default":
(a) default in the due and punctual payment of the interest
on any Bonds hereby secured and outstanding;
(b) default in the due and punctual payment of the principal
and premium, if any, of any Bond hereby secured, whether at the
stated maturity thereof, or upon proceedings for the redemption
thereof, or upon the maturity thereof by declaration as hereinafter
provided;
• (c) default in the performance or observance of any other of
the covenants or agreements of the Authority in this Agreement or
in any supplemental agreement, or in the Bonds, contained, and the
continuance thereof for a period of sixty (60) days after written
notice thereof to the Authority by the Trustee;
(d) if the Authority: (1) admits in writing its inability
to pay its debts generally as they become due ; ( 2 ) files a petition
in bankruptcy; (3) makes an assignment for the benefit of its
creditors; or (4) consents to or fails to contest the appointment
of a receiver or trustee for itself or of the whole or any
substantial part of the Project or any income therefrom;
(e) if the Authority: (1) be adjudged insolvent by a court
of competent jurisdiction; (2) on a petition in bankruptcy filed
against the Authority be adjudged a bankrupt; or (3) if an order,
judgment or decree be entered by any court of competent
jurisdiction appointing, without the consent of the Authority, a
receiver or trustee of the Authority or of the whole or any
substantial part of the Project or any income therefrom, and any
of the aforesaid adjudications, orders, judgments or decrees shall
not be vacated or set aside or stayed within sixty (60) days from
the date of entry thereof;
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• (f) if any judgment shall be recovered against the Authority
or any attachment or other. court process issue that shall become
or create a lien upon the Lease or the Pledged Funds, and such
judgment, attachment, or court process shall not be discharged or
effectually secured within sixty (60) days;
(g) if the Authority shall file a petition under the
provisions of the U.S. Bankruptcy Code, as amended ("Bankruptcy
Code"), or file answer seeking the relief provided in said
Bankruptcy Code;
(h) if a court of competent jurisdiction shall enter an
order, judgment or decree approving a petition filed against the
Authority under the provisions of said Bankruptcy Code, and such
judgment, order or decree shall not be vacated or set aside or
stayed within one. hundred twenty (120) days from the date of the
entry thereof;
(i) if, under the provisions of any other law now or
hereafter existing for the relief or aid of debtors, any court of
competent jurisdiction shall assume custody or control of the
Authority or of the whole or any substantial part of the Project
or the income therefrom, and such custody or control shall not be
terminated within one hundred twenty (120) days from the date of
assumption of such custody or control;
(j) failure of the Authority to bring suit to mandate the
governing board or officials of the Lessee to levy a tax to pay the
rental provided in the Lease referred to in Article V, or take such
other action to enforce the Lease as is reasonably requested by the
Trustee, if such rental is more than sixty (60) days in default;
(k) if the lease rental provided for in said Lease is not
paid within sixty (60) days after each date it is due; or
(1) any event of default. as defined in Section 15 of the
Lease shall occur and be continuing.
Sec. 7.02. In the case of the happening and continuance
of any of the events of default specified in Section 7.01, then in
any such case the Trustee, by notice in writing mailed to the
Authority,. may, and upon written request of the holders of
twenty-five percent (25~) in principal amount of the Bonds then
outstanding hereunder shall, declare the principal of all Bonds
hereby secured and then outstanding, and the interest accrued
thereon, immediately due and payable, and upon such declaration
such principal and interest shall thereupon become. and be
immediately due and payable; subject, however, to the right of the
holders of a majority in principal amount of all such outstanding
. -30-
. Bonds, by written notice to the Authority and to the Trustee, to
annul each declaration and destroy its effect at any time if all
agreements with respect to which default shall have been made shall
be fully. performed and all such defaults be cured, and all arrears
of interest upon all Bonds outstanding hereunder and the reasonable
expenses and charges of the Trustee, its agents and attorneys, and
all other indebtedness secured hereby, except the principal of any
Bonds not then due by their terms and interest accrued thereon
since the then last interest payment date, shall be paid or the
amount thereof shall be paid to the Trustee for the benefit of
those entitled thereto.
Sec. 7.03. If default occurs with respect to the payment
of principal or interest due hereunder, interest shall be payable
on overdue principal and overdue interest both at the highest rate
of interest on any of the Bonds when sold, whether or not then
outstanding.
Sec. 7.04. In case of the happening and continuance of any
of the events of default specified in Section 7.01, the Trustee
may, and shall upon the written request of the holders of at least
twenty-five percent (25%) in principal amount of the Bonds then
outstanding hereunder and upon being indemnified to its reasonable
satisfaction, proceed to protect and enforce its rights and the
rights of the holders of the Bonds by suit or suits in equity or
at law, or in any court of competent jurisdiction, whether for
. specific performance of any covenant or agreement contained herein
or in aid of any power herein granted, or for the enforcement of
any other appropriate legal or equitable remedy.
No remedy by the terms of this Agreement 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
hereunder or now or hereafter existing at law or in equity or by
statute.
No delay or omission to exercise any right or power accruing
upon any default shall impair any such right or power, or shall be
construed to be a waiver of any such default or acquiescence
therein; and every such right or power may be exercised from time
to time and as often as may be deemed expedient.
Sec. 7.05. In case of an event of default hereunder and
upon the filing of judicial proceedings to enforce the rights of
the Trustee and of the Bondholders hereunder, the Trustee shall be
entitled, as a matter of right, to the appointment of a receiver
of the rents, revenues, issues, earnings, income and proceeds
thereof pending such proceedings, with such powers as the court
making such appointment shall confer.
• -31-
• Sec. 7.06. All rights. of action under this Agreement or
under any of the Bonds, .including .the right to file and prove a
claim in any receivership, insolvency, bankruptcy, or other similar
proceedings for the entire amount due and payable by the Authority
under this Agreement, may be enforced by the Trustee without the
possession of any of the Bonds or the production thereof in any
trial or other proceeding relating thereto, .and any suit or
proceeding instituted by the Trustee shall be brought in its name
as Trustee, and any recovery shall be for the equal benefit of the
.holders of the outstanding Bonds.
Sec. 7.07. It is hereby declared and agreed, as a
condition upon which each successive holder of all or any such
Bonds receives and holds the same, that no holder or holders of any
such Bond shall have the right to institute any proceeding at law
or in equity, or for the appointment of a receiver, or (except for
filing of claims with the Treasurer of the State of Indiana) for
any other remedy under this Agreement, without first giving notice
in writing to the Trustee of the occurrence and continuance of an
event of default as aforesaid, and unless the holders of at least
twenty-five percent (25~) in principal amount of the then
outstanding Bonds shall have made written request to the .Trustee
and shall have offered it reasonable opportunity either to proceed
to exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, and without also having
• offered to the Trustee adequate security and indemnity against the
costs, expenses and liabilities to be by the Trustee incurred
therein or thereby; and such notice, request, and offer of
indemnity may be required by the Trustee as conditions precedent
to the execution of the powers and trusts of this Agreement or to
the institution of any suit, action or proceeding at law or in
equity or for the appointment of a receiver, or for any other
remedy hereunder, or otherwise, in case of any such default as
aforesaid; 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 Agreement by 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 all holders of outstanding
Bonds. Notwithstanding any other provisions of this Agreement, the
right of any holder of any Bond to receive payment of the principal
of and premium, if any, and interest on such Bond on or after the
respective due dates therein expressed, or to institute suit for
the recovery of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such
holder.
• -32-
• ARTICLE VIII.
Defeasance, Pavment, Release
Sec. 8.01. If, when the Bonds secured hereby shall have
become due and payable in .accordance with their terms or shall have
been duly called for redemption or irrevocable instructions to call
the Bonds for redemption shall have been given by the Authority to
the Trustee, the whole amount of the principal and the interest and
the premium, if any, so due and payable upon all of the Bonds then
outstanding shall be paid or (i) sufficient moneys, or (ii) direct
obligations of, or obligations the principal of any interest on
which are unconditionally guaranteed by, the United States of
America the principal of and the interest on which when due will
provide sufficient moneys, or (iii) time certificates of deposit
fully secured as to both principal and interest by obligations of
the kind described in (ii) above of a bank or banks the principal
of and interest on which when due will provide sufficient moneys,
or (iv) any combination of (i), (ii) or (iii) above which will
provide sufficient moneys, shall be held by the Trustee for such
purpose under the provisions of this Agreement, and provision shall
also be made for paying all Trustee's fees and expenses and other
sums payable hereunder by the Authority, then and in that case the
right, title and interest of the Trustee shall thereupon cease,
determine and become void.
• Upon any such termination of the Trustee's title, on demand
of the Authority, the Trustee shall release this Agreement and
shall execute such documents to evidence such release as may be
reasonably required by the Authority, and shall turn over to the
Authority or to such officer, board or body as may then be entitled
by law to receive the same any .surplus in the Sinking Fund created
by Sec. 3.02 hereof and in the Operation Fund created by Sec. 3.03
hereof and all balances remaining in any other fund or accounts
other than moneys and obligations held for the redemption or
payment of Bonds; provided, however, that in the event direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of
America or time certificates of deposits shall be deposited with
and held by the Trustee as hereinabove provided, in addition to the
requirements set forth in Article IV of this Agreement, the Trustee
shall within thirty (30) days after such obligations or time
certificates of deposits shall have been deposited with it, cause
a notice signed by the Trustee to be published once in the Bond
Buyer, in the City of New York, New York, or, if the Bond Buyer is
not published, then in a newspaper or financial journal published,
and of general circulation in the City of New York, New York, or
the City of Chicago, Illinois, setting forth (a) the date
designated for the redemption of the Bonds, (b) a description of
-33-
the obligations so held by it, and (c) that this Agreement has been.
released in accordance with the provisions of this Section.
All moneys, and obligations and time certificates of deposit
held by the Trustee pursuant. to this Section shall be held in trust
and said moneys and the principal and interest of said obligations
and time certificates of deposit when received, applied to the
payment, when due, of the principal and the interest and the
premium, if any, of the Bonds so called for redemption.
Sec. 8.02. Any Bond not presented at the proper time and
place for payment shall., within the meaning of this Agreement, be
deemed to be fully paid when due if the money necessary to
discharge the principal amount thereof and all interest then
accrued and unpaid thereon (and the premium required in case of
redemption before maturity) is held by the Trustee when or before
the same become due. The holder of any such Bond shall not be
entitled. to any interest thereon after the maturity thereof nor to
any interest upon money so held by the Trustee.
ARTICLE IX.
Concerning theTrustee
Sec. 9.01. The Trustee hereby accepts the trusts of this
• Agreement upon the following terms and .conditions, to which the
parties and the registered holders of said Bonds agree:
(a) After completion of construction of the Project, the
Trustee shall annually prepare a financial report covering
disbursements and receipts of all funds of the Authority held by
the Trustee hereunder and shall furnish a copy to the Authority.
(b) The Trustee shall be under no obligation to see to any
filing or recording of this Agreement or any agreement supplemental
hereto, and may authenticate and deliver the Bonds in accordance
with the provisions hereof prior to any filing or recording of this
Agreement.
(c) The Trustee shall be entitled to reasonable compensation
for all services rendered in the execution of the trusts hereby
created, and may employ agents, attorneys and counsel in the
execution of such trusts; and the compensation of the Trustee, as
well as the reasonable compensation of its attorneys and counsel
and of such persons as it may employ in the administration or
management of the trusts hereunder, and all other reasonable
expenses necessarily incurred or actually disbursed hereunder, the
Authority agrees to pay to the Trustee on demand, and for such
payment the Trustee shall have a lien on all funds in the hands of
• -34-
the Trustee not held in trust for any specific purpose in priority
i to the rights and claims of the holders of said Bonds.
(d) The Trustee shall not be responsible in any manner for:
(1) the validity, execution, acknowledgment, filing or
recording of this Agreement or any agreement supplemental hereto,
or the refiling or rerecording thereof;
(2) for any recitals, covenants or agreements of the
Authority in the Bonds or herein contained, except to pay from the
Operation and Reserve Fund expenses incurred by the Authority to
enable it to comply with its covenants contained herein;
(3) for the default or misconduct of any agent or
employee appointed by it, if such agent or employee shall have been
selected with reasonable care, or for anything done by it in
connection with this trust, except for its willful misconduct or
gross negligence;
(4) for the consequence of any act done in good faith;
or
(5) for any actions taken by the Trustee in accordance
with the opinion of counsel employed by the Trustee.
• (e) The Trustee shall be under no obligation to keep advised
or informed as to whether the Authority is in default under any of
the terms or covenants of this Agreement; and unless and until the
Trustee shall have received written notice to the contrary from the
holders of at least five percent (50) in principal amount of the
Bonds then outstanding hereunder, the Trustee may, for all purposes
of this. Agreement, assume that the Authority is not in default
hereunder and that none of the events hereinbefore defined as
"events of default" has happened..
(f) The Trustee shall not be required to appear in or defend
any suit which may be brought against it respecting the Project,
or by reason of being Trustee hereunder, or to institute any suit
or proceeding to enforce any covenant or remedy herein provided,
or to take any action toward the execution or enforcement of the
trusts hereby created, which, in the opinion of the Trustee, will
be likely to involve the Trustee in expense or liability, unless
the holders of said Bonds or some part thereof shall furnish the
Trustee with reasonable security and indemnity against such expense
or liability.
(g) The Trustee shall be fully protected in acting upon or
in accordance with any notice or request, consent, certificate,
demand, resolution or other instrument or document believed by the
-35-
Trustee to be genuine and to have been signed, authorized,
• executed, certified or sealed by the proper person or persons; and
the Trustee is authorized to accept the certificate of the
Secretary-Treasurer of the Authority, under its corporate seal, if
any, to any resolution of the board of directors of the Authority
as conclusive evidence that such resolution was duly and lawfully
adopted and is binding upon the Authority.
(h) The Trustee, or any officer or director of the Trustee,
may acquire and hold Bonds issued hereunder or may engage in or be
interested in any financial or other transaction in which the
Authority may be interested., and the Trustee may be depository,
trustee, transfer agent, registrar or agent of the Authority, or
for any committee or other body in respect to the bonds, notes,
debentures, obligations or securities of the Authority, whether or
not issued pursuant hereto.
(i) The Trustee may, in relation to any powers or duties
imposed upon it by this Agreement, act upon the opinion or advice
of an attorney, surveyor, engineer or accountant, whether retained
by the Trustee or by the Authority, and shall not be responsible
for any loss resulting from any action or non-action in accordance
with any such opinion or advice.
(j) The Trustee is relieved from filing any inventory, or
qualifying under the jurisdiction of any court, or otherwise
complying with the provisions of the Uniform Trustees' Accounting
Act of 1945, or with any laws amendatory thereof or supplemental
thereto, and the provisions of said law are hereby waived.
Sec. 9.02. The Trustee agrees to invest funds (subject to
Sec. 5.14 hereof) from time to time held by it as Trustee under
this Agreement, and apply the interest earned thereon as provided
in Article III, but shall not be under any duty or obligation to
pay interest on any funds held by it which cannot practicably be
so invested either to the Authority or to the holder of any Bond,
or to any other person; any and all such liability for the payment
of such interest being hereby expressly waived.
Sec. 9.03. In the event that the Trustee, or any successor
trustee, shall become legally consolidated or merge with another
banking association or corporation, the banking association or
corporation resulting from such consolidation or merger shall
thereupon become and be the Trustee hereunder with the same titles,
rights, powers, benefits, duties and limitations, without the
execution or filing or recording of any instrument, and without any
action on the part of the Authority or the holders of Bonds
hereunder. A purchase of the assets and assumption of the
liabilities of the Trustee by another banking association or
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corporation shall be deemed to be consolidation or merger for the
• purposes of this section.
Sec. 9.04. The Trustee, or any successor .trustee, may be
removed at any time by an instrument or concurrent instruments in
writing filed with the Trustee and signed by the holders of a
majority in principal amount of the Bonds .then outstanding
hereunder, or by their attorneys-in-fact thereunto duly authorized.
Sec. 9.05. The Trustee, or any successor trustee, may
resign the trust created by this Agreement upon first giving notice
of such proposed resignation and specifying the date when such
resignation shall take effect, which notice shall be given to the
Authority in writing at least twenty (20) days prior to the date
when such resignation shall take effect, and shall be given to the
Bondholders by mail at least twenty (20) days prior to the date
when such resignation shall take effect. Such resignation shall
take effect on the day so designated in such notice, unless
previously a successor trustee shall be appointed as hereinafter
provided, in which event such resignation. shall take effect
immediately upon the appointment of such successor trustee.
Sec. 9.06. In case at any time the Trustee shall become
incapable of acting, or shall be removed, a successor trustee may
be appointed by the holders of at least a majority in principal
amount of the Bonds hereby secured and then outstanding, by an
• instrument or instruments in writing signed by such Bondholders or
by their duly constituted attorneys-in-fact; but until a new
trustee shall be so appointed by the Bondholders, the Authority,
by an instrument executed by order of its board of directors, may
appoint a trustee to fill such vacancy until a new trustee shall
be appointed by the Bondholders as aforesaid, and when-any such new
trustee shall be appointed by the Bondholders, any trustee
theretofore appointed by the Authority shall thereupon and thereby
be superseded and retired. Each such successor trustee appointed
by any of such methods shall be a bank or trust company authorized
by law so to act, and having a capital and surplus of not less than
Five Million Dollars ($5,000,000).
Sec. 9.07. Any successor trustee appointed hereunder shall
execute, acknowledge and deliver to the Authority, and to its
predecessor, an instrument accepting such appointment; and
thereupon, upon the execution of the same, such successor trustee,
without any further act or instruments or deeds of conveyance,
shall become vested with all of the assets, powers, rights, duties,
trusts and obligations of its predecessor in trust hereunder with
like effect as if originally named as trustee herein; but
nevertheless, on the written request of the successor trustee, the
trustee ceasing to act shall execute and deliver to such successor
trustee all conveyances and instruments proper to evidence the
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vesting in the new trustee of the interest and title of the
• retiring trustee in the trusts hereby created., subject, however,
to any lien which the retiring trustee may have pursuant to any
provision hereof; and upon request in writing of any successor
trustee, the Authority covenants to make, execute, acknowledge and
deliver any and all deeds, conveyances, assignments, or instruments
in writing for the more fully and certainly vesting in and
confirming to such successor trustee all such assets, property,
rights, powers and trusts.
ARTICLE X.
Supplemental Agreements
Sec. 10.01. Without notice to or the consent of any
Bondholders, the Authority and the Trustee may, from time to time
and at any time, enter into such agreements supplemental hereto as
shall not be inconsistent with the terms and provisions hereof
(which supplemental agreements shall thereafter .form a part.
hereof):
(a) To cure any ambiguity or formal. defect or omission in
this Agreement, or in any supplemental agreement, which does not
adversely affect the rights of the Bondholders;
(b) to grant to or confer upon the Trustee, for the benefit
of the Bondholders,. any additional benefits, rights, remedies,
powers, authority or security that may lawfully be granted to or
conferred upon the Bondholders or the Trustee, or to make any
change which in the judgment of the Trustee, is not to the
prejudice of the Bondholders;
(c) to modify, amend or supplement this Agreement to permit
the qualification of the Bonds for sale under the securities laws
of the United States of America or of any of the states of the
United States of America on to obtain or maintain bond insurance
with respect to payments of principal of and interest on the Bonds;
(d) to provide for the refunding or advance refunding of the
Bonds in whole or in part;
(e) to procure or maintain a rating on the Bonds from a
nationally recognized securities rating agency designated in such
supplemental agreement, if such supplemental agreement will not
adversely affect the owners of the Bonds; and
(f) any other purpose which in the judgment of the Trustee
does not adversely impact the interest of the Bondholders.
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Sec. 10.02. Subject to the terms and provisions contained
in this section, and not otherwise, the holders of not less than
sixty-six and two-thirds percent (66-2/3$) in aggregate principal
amount of the Bonds then outstanding shall have the right from time
to time, anything contained in this Agreement to the contrary
notwithstanding, to consent to and approve the execution by the
Authority and the Trustee of such agreement or agreements
supplemental hereto as shall be deemed necessary or desirable by
the Authority for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the terms or
provisions contained in this Agreement or in any supplemental
agreement; provided, however,-that nothing herein contained shall
permit or be construed as permitting:
(a) an extension of the maturity of the principal or interest
on any Bond issued hereunder; or
(b) a reduction in the principal amount of any Bond or the
redemption premium or the rate of interest thereon; or
(c) a preference or priority of any Bond or Bonds over any
other Bond or Bonds; or
(d) a reduction in the aggregate principal amount of the
Bonds required for consent to such supplemental agreement.
Nothing herein contained, however, shall be construed as making
. necessary the approval by the Bondholders of the execution of any
supplemental agreement or agreements as authorized in Section 10.01
of this Article.
If at any time the Authority shall request the Trustee to
enter into any supplemental agreement for any of the purposes of
this section, the Trustee shall, at the expense of the Authority,
give notice by first-class mail, postage prepaid, to all registered
owners of Bonds. Such notice shall briefly set forth the nature
of the proposed supplemental agreement and shall state that a copy
thereof is on file at the office of the Trustee for inspection by
all Bondholders. The Trustee shall not, however, be subject to any
liability to any Bondholder by reason of its failure to mail the
notice required by this section, and any such failure shall not
affect the validity of such supplemental agreement when consented
to and approved as provided in this section.
Whenever, at any time within one (1) year after mailing of
such notice, the Authority shall deliver to the Trustee an
instrument or instruments purporting to be executed by the holders
of not less than .sixty-six and two-thirds percent (66-2/3~) in
aggregate principal amount of the Bonds then outstanding, which
instrument or instruments shall refer to the proposed supplemental
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agreement described in such notice and shall specifically consent
• to and approve the execution thereof in substantially the form of
the copy thereof referred to in such notice as on file with the
Trustee; thereupon, but not otherwise, the Trustee may execute such
supplemental agreement in substantially such form, without
liability or responsibility to any holder of any Bond, whether or
not such holder shall have consented thereto.
If the holders of not less than sixty-six and two-thirds
percent (66-2/3~) in aggregate principal amount of the Bonds
outstanding at the time of .the execution of such supplemental
agreement shall have consented to and approved the execution
thereof as herein provided, no holder of any Bond shall have any
right to object to the execution of such supplemental agreement or
to object to any of the terms and provisions contained therein or
the operation thereof, or in any manner to question the propriety
of the execution thereof, or to enjoin or restrain the Trustee or
the Authority from executing the same, or from taking any action
pursuant to the provisions thereof.
Upon the execution of any supplemental agreement pursuant to
the provisions of this section, this Agreement shall be, and shall
be deemed, modified and amended in accordance therewith, and the
respective rights, duties and obligations under this Agreement of
the Authority, the Trustee, and all holders of Bonds then
outstanding shall thereafter be determined, exercised and enforced
hereunder, subject in all respects to such modifications and
• amendments.
Sec. 10.03. The Trustee is authorized to join with the
Authority in the execution of any such supplemental agreement and
to make the further agreements and stipulations which may be
contained therein. Any supplemental agreement executed in
accordance with the provisions of this Article shall thereafter
form a part of this Agreement, and all the terms and conditions
contained in any such supplemental agreement as to any provision
authorized to be contained therein shall be, and shall be deemed
to be, part of the terms and conditions of this Agreement for any
and all purposes.
Sec. 10.04. The Trustee shall be entitled to receive, and
shall be fully protected in relying upon, the opinion of any
counsel approved by it who .may be counsel for the Authority, as
conclusive evidence that any such proposed supplemental agreement
complies with the provisions of this Agreement, and that it is
proper for the Trustee, under the provisions of this. Article, to
join in the execution of such supplemental agreement.
Sec. 10.05. .Notwithstanding anything contained in the
foregoing provisions of this Agreement, the rights and obligations
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of the Authority and of the holders of the Bonds, and the terms and
• provisions of the Bonds and this Agreement, or any supplemental
agreement, may be modified or .altered in any respect with the
consent of the Authority and the consent of the holders of all the
Bonds then outstanding.
ARTICLE XI.
Miscellaneous Provisions
Sec. 11.01. Any .covenant of the Authority set forth in this
Agreement may be waived or modified in whole or in part with the
written consent of the Authority and the Trustee without the
necessity of obtaining the consent of the Bondholders and without
the execution and delivery of a supplemental agreement.
Sec. 11.02. Any notice or demand which by any provision of
this Agreement is required or permitted to be given or served by
the Trustee on the Authority shall be deemed to have been
sufficiently given or served for all-purposes, by being deposited,
postage prepaid, in a United States Post Office letter box,
addressed (until another address is filed in writing by the
Authority with the Trustee for that purpose) as follows:
South Bend Redevelopment Authority
• 1200 County-City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
Any notice or demand which by any provision of this Agreement
is required or permitted to be given or served by the Authority on
the Trustee shall be deemed to have been sufficiently given or
served for all purposes, by being deposited, postage prepaid, in
a United States Post Office letter box, addressed (until another
address is filed in writing by the Trustee with the Authority for
that purpose) as follows:
Society Bank, Indiana
202 South Michigan Street
South Bend, Indiana 46601
Sec. 11.03. In any case where the date of payment of
interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall be in the city of payment a Saturday,
Sunday or a legal holiday or a day on which banking institutions
are authorized by law to close, then payment of interest or
principal or the redemption price may be made on the succeeding
business day with the same force and effect as if made on the
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established date of payment of interest or principal or the date
• ffixed for redemption.
Sec. 11.04. This Agreement 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.
Sec. 11.05. With the exception ,of rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from
this Agreement or the Bonds is intended or shall be construed to
give to any person or company other than the parties hereto and the
Bondholders, any legal or equitable right, remedy or claim under
or in respect to this Agreement, or any covenants, conditions and
provisions herein contained; this Agreement and all of the
covenants, conditions and provisions hereof being intended to be
and being for the sole and exclusive benefit of the parties hereto
and the owners of the Bonds as herein. provided.
Sec. 11.06. If any provisions of this Agreement shall be
held or deemed to be or shall, in fact, be illegal, inoperative or
unenforceable, the same shall not affect any other .provision or
provisions herein contained or render the same invalid, inoperative
or unenforceable to any extent whatever.
Sec. 11.07. No member, officer or employee of the Authority
or of any department or board thereof, shall be individually or
personally liable for the payment of the principal of or interest
• or redemption premium on any Bond. Nothing herein contained shall,
however, relieve any such member, officer or employee from the
performance of any duty provided or required by law.
Sec. 11.08. This Agreement shall be construed and enforced
in accordance with the laws of the State of Indiana.
Sec. 11.09. The headings or titles of-the several Articles
and Sections hereof, and any table of contents. appended to copies
hereof, shall be solely for convenience of reference and shall not
affect the meaning, construction, interpretation or effect of this
Agreement.
Sec. 11.10. The provisions of this Agreement shall
constitute a contract between the Authority and the holders of the
Bonds, and after the issuance of any Bonds no change or alteration
of any kind in the provisions of this Agreement may be made until
all of the Bonds have been paid in full as to both principal and
interest, or provision for such payment has been made in accordance
with Article VIII hereof, except in accordance with Article X
hereof.
• -42-
IN WITNESS WHEREOF, SOUTH BEND REDEVELOPMENT AUTHORITY has
• caused its corporate name to be hereunto subscribed by the
President of its Board of Directors, and attested by the
Secretary-Treasurer of its Board of Directors, and Society Bank,
Indiana, as Trustee, has likewise caused these presents to be
executed in said Trustee's name and behalf by its Vice President
and Trust Officer, and its corporate seal to be hereunto
affixed and attested by its
in token of its acceptance of said trust,
as of the day and year first hereinabove written.
SOUTH BEND REDEVELOPMENT AUTHORITY
By:
(Written Signature)
(Printed Signature)
President, Board of Directors
ATTEST:
(Written Signature)
. (Printed Signature)
Secretary-Treasurer,
Board of Directors
(SEAL)
SOCIETY BANK, INDIANA
(Written Signature)
(Printed Signature)
(Title)
ATTEST:
(Written Signature)
(Printed Signature)
(Title)
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STATE OF INDIANA )
SSt
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public in and for. said
State, personally appeared Joseph Wroblewski and Donald Fewell,
personally known to me to be the President and Secretary-Treasurer,
respectively, of the Board of Directors of the South Bend
Redevelopment Authority, .and. acknowledged the execution of the
foregoing Agreement for and on behalf of said Authority on
this day of , 1990.
Witness my hand and notarial seal.
(Written Signature)
(SEAL)
(Printed Signature)
Notary Public
My Commission Expires:
My County of Residence is
STATE OF INDIANA )
SS:
. ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public in and for said
State, personally appeared and
-------------------
personally known to me to be the
and ,respectively,
of Society Bank., Indiana, and acknowledged the execution of the
foregoing Agreement for and on behalf of said Bank on this day
of , 1990.
Witness my hand and notarial seal.
(Written Signature)
(SEAL)
(Printed Signature)
Notary Public
My Commission Expires:
My County of Residence is
This instrument was prepared by Richard L. Hill, BAKER & DANIELS,
205 West Jefferson Boulevard, South Bend, Indiana 46601.
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