HomeMy WebLinkAbout1994-06-21 MinutesSOUTH BEND REDEVELOPMENT AUTHORITY
REGULAR MEETING
June 21, 1994 1308 County-City Building
4:30 p.m. 227 W. Jefferson Boulevard
Presiding: Joseph W. Wroblewski South Bend, Indiana 46601
President
The June 21, 1994 Regular Meeting of the Redevelopment Authority was called to order at
4:32 p.m. by its President, Joseph Wroblewski. There was a quorum present.
1. ROLL CALL
Members Present: Mr. Joseph W. Wroblewski, President
Mr. Andre B. Gammage, Vice-President
Members Absent: Ms. Mary O. Ferlic, Secretary
Redevelopment Staff: Mrs. Ann Kolata, Director
Mrs. Cheryl Phipps, Recording Secretary
Mr. James Riggs, Economic Dev. Specialist
• Others: Mr. Randy Rompola, Baker & Daniels
2. APPROVAL OF MINUTES
a. A~~roval of Minutes of the Regular Meeting of Tuesday, June 7, 1994.
Upon a motion by Mr. Gammage, seconded by Mr. Wroblewski and
unanimously carried, the Authority approved the Minutes of the Regular
Meeting of Tuesday, June 7, 1994.
3. NEW BUSINESS
a. Authority approval requested for Resolution No. 94 authorizing the issuance
and sale of the South Bend Redevelopment Authority Variable Rate Demand
Lease Rental Revenue Bonds of 1994 (College Football Hall of Fame Proiect)
and other related matters.
Mr. Rompola explained that Resolution No. 94 authorizes the issuance of the
bonds related to the College Football Hall of Fame. There was a
determination that by doing two separate financings, there were some benefits
to the City. The Century Center bonds have closed and. these are the bonds to
finance the construction of the Hall of Fame. The resolution authorizes the
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South Bend Redevelopment Authority
Regular Meeting -June 21, 1994
3. NEW BUSINESS (Cont.)
a. continued...
issuance of bonds in an amount not to exceed $19,000,000 at an interest rate
not to exceed 12 % . The 12 % is high, but the nature of these bonds is that
they are a variable rate bond and could fluctuate during the time they are
outstanding, but the variable rate nature allows them to be redeemed at any
time which is in the city's interest as private donations come in to pay for the
construction. The resolution also authorizes the sale of bonds to First Chicago
National Capital Market; approves the form of trust indenture; and approves
the form of preliminary official statement. The trust indenture appoints
Norwest Bank to serve as trustee for the bonds. Norwest Bank was the trustee
on the Century Center financing. Resolution No. 94 also authorizes a series of
other documents, such as the bond purchase contract, related to the variable
rate nature of the bonds, and authorizes the President, Vice President, and
Secretary to execute those documents when they are complete. Resolution
No. 94 authorizes a letter of credit which would pay the bonds off in the event
• the bond holders want to all redeem their bonds at the same time. The
resolution also authorizes an interest rate cap agreement which would be
purchased from First Chicago National Capital Market. With that agreement
in place, if the interest rate ever goes higher than the lease rentals can pay,
First Chicago National Capital Market will pay the difference. Resolution
No. 94 also approves a letter of representation from Depository Trust
Company which will hold the bonds for the bond purchasers.
Upon a motion by Mr. Gammage, seconded by Mr. Wroblewski and
unanimously carried, the Authority approved Resolution No. 94 authorizing
the issuance and sale of the South Bend Redevelopment Authority Variable
Rate Demand Lease Rental Revenue Bonds of 1994 (College Football Hall of
Fame Project) and other related matters.
b. Authority apbroval requested for Proposal from Arborwise. Ltd. for
professional services in the Airoort Economic Development Area. (Blackthorn
Golf Course)
Mr. Riggs noted that there is an old oak tree on Blackthorn Golf Course that
needs a program to make sure it is properly taken care of and maintained. At
the last meeting the Authority was concerned that the tree be protected from
lightning. The authority wanted the proposal to include plans ready to be bid
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South Bend Redevelopment Authority
Regular Meeting -June 21, 1994
3. NEW BUSINESS (Cont.)
b. continued...
out for installing lightning rods. This proposal is for a report that includes all
specifications necessary to construct such a lightning protection system as well
as all the other types of preservation issues such as what herbicides and
pesticides to be used and how to use them. The tree is so big now that it is in
danger of splitting itself. This program will address whether cabling is needed
and where to cable it, etc. The fee structure has also been changed to put a
not-to-exceed cap of $250 on item #3 and a cap of $150 on item #4. The
interest charge on late payment has also been crossed out as has the right to
use our name, data and dates in publication.
Upon a motion by Mr. Gammage, seconded by Mr. Wroblewski and
unanimously carried, the Authority approved the proposal from Arborwise,
Ltd. for professional services in the Airport Economic Development Area.
(Blackthorn Golf Course)
• 4. APPROVAL OF CLAIMS
Claims Submitted for payment June 21, 1994:
BLACKTHORN GOLF COURSE BOND
North American Golf, Inc. $ 965.46
City of South Bend Parks Department $ 28,042.89
Franzen Landscape Design $ 1,150.00
Mittler Supply, Inc. $ 725.09
Cory Orchard & Turf $ 11,762.52
Cannon Turf Supply $ 10,276.01
Precision Small Engine Company $ 167.95
Vulcan Materials Company $ 421.50
Turf Specialties $ 14,538.90
Berreth Oil Inc. $ 1,120.59
Aratex Services $ 64.50
Superior Waste Systems $ 116.00
Shearer Communications $ 775.00
WW Grainger $ 351.07
Stan & Ted's Lawnmower Shop $ 105.89
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South Bend Redevelopment Authority
Regular Meeting -June 21, 1994
4. APPROVAL OF CLAIMS (Cont. )
BLACKTHORN GOLF COURSE BOND continued...
Ray's Golf Car $ 80.23
Zee Medical Service $ 242.34
Golf Course Superintendent's Association of America $ 240.00
Kenney Machinery Corp. $ 460.74
Illinois Lawn Equipment $ 5,897.36
Indiana Michigan Power Co. $ 217.06
Indiana Michigan Power Co. $ 1,073.47
Indiana Michigan Power Co. $ 45.35
Ameritech $ 107.98
Ameritech $ 305.61
South Bend Water Works $ 163.42
Upon a motion by Mr. Gammage, seconded by Mr. Wroblewski and unanimously
carried, the Authority approved the Claims submitted June 21, 1994.
5. NEXT AUTHORITY MEETING
The next Regular Meeting of the Redevelopment Authority is scheduled for
July 5, 1994 at 4:30 p.m.
6. ADJOURNMENT
There being no further business to come before the Redevelopment Authority, Mr.
Gammage made a motion that the meeting be adjourned. Mr. Wroblewski seconded
the motion and the meeting was adjourned at 4:55 p.m.
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sep W. (W Wroblewski, President
Ann E. Kolata, Director
•
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~.
TRUST INDENTURE
Between
SOUTH BEND REDEVELOPMENT AUTHORITY
And
NORWEST BANK INDIANA, N.A.,
as Trustee
Dated as of June 1, 1994
South Bend Redevelopment Authority
Variable Rate Demand Lease Rental
Revenue Bonds of 1994
(College Football Hall of Fame Project)
• TABLE OF CONTENTS
THIS TRUST INDENTURE (the "Indenture"), dated as of June
. 1, 1994, between the SOUTH BEND REDEVELOPMENT AUTHORITY, a public
body, corporate and politic duly organized and validly existing
under the laws of the State of Indiana (the "Authority"), and
NORWEST BANK INDIANA, N.A., a national banking association,. as
trustee (the "Trustee"), duly established, existing and authorized
to accept and execute trusts of the character herein set out under
and by virtue of the laws of the United States, with its principal
corporate trust office, at South Bend, Indiana.
WITNESSETH:
WHEREAS, pursuant to the Indiana Code 36-7-14.5 (the
"Act"), the Authority is authorized and empowered to issue its
lease rental revenue bonds for the purpose of defraying the cost
of constructing and equipping local public improvements for lease
to the South Bend Redevelopment Commission; and
WHEREAS, to accomplish the purposes of the Act the
Authority has determined to (a) construct and equip a college
football hall of fame (the "Project"); (b) pay certain expenses
incurred in connection with the issuance of the Bonds (as
hereinafter defined); and (c) pay a portion of interest to accrue
on the Bonds during the period of construction of the Project and
to fund certain reserves for the Bonds all as permitted under the
Act; and
WHEREAS, the Authority is authorized under the Act to
issue its lease rental revenue bonds for the purposes aforesaid and
the Authority has determined that the public interest will be best
served and that the purposes of the Act can be more advantageously
obtained by the Authority's issuance of bonds in order to obtain
funds for the foregoing purposes; and
WHEREAS, the execution and delivery of this Indenture and
the issuance of the Bonds under the Act have been in all respects
duly and validly authorized by a resolution duly passed and
approved by the Authority; and
WHEREAS, it has been determined that in order to
accomplish such purposes the Authority will issue $ in
aggregate principal amount of its Variable Rate Demand Lease Rental
Revenue Bonds of 1994 (College Football Hall of Fame Project), to
be issued under this Indenture (the "Bonds"); and
WHEREAS, the Authority will lease the Project to the
South Bend Redevelopment Commission (the "Commission) pursuant to
a Lease dated as of November 1, 1993, as amended on June 3, 1994,
and as further amended on June , 1994 (the "Lease"), between the
Commission and the Authority, pursuant to which the Commission
covenants to make the lease rental payments as provided in the
Lease; and
WHEREAS, the Authority has determined that a substantial
reduction in the interest cost payable by the Authority with
respect to the Bonds will result if an Initial Credit Facility (as
hereinafter defined) is obtained from The Fuji Bank Limited, New
York Branch (the "Initial .Credit Facility Issuer"), which can be
drawn upon prior to the expiration thereof in an amount up to
(a) an amount equal to the outstanding principal amount of the
Bonds to be used (i) to pay the principal of the Bonds, (ii) to
enable the Tender Agent (as.hereinafter defined) to pay the portion
of the purchase price equal to the principal amount of Bonds
delivered or deemed delivered for purchase and not remarketed plus
(b) an initial amount equal to days' accrued interest on the
Bonds (calculated at the Maximum~~~~Rate defined herein) to be used
(i) to pay interest on the Bonds or (ii) to pay the portion of the
purchase price equal to the accrued interest, if any, of the Bonds
properly delivered or deemed delivered for purchase and not
remarketed; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as in this Indenture
provided, the valid, binding and legal obligations of the Authority
according to the import thereof, and to constitute and make this
Indenture a valid assignment and pledge of the lease rental to be
paid by the Commission under the Lease, for the payment of the
principal of, premium, if any, and interest on the Bonds have been
done and performed, and the creation, execution and delivery of
this Indenture, and the creation, execution and issuance of the
Bonds, subject to the terms hereof, have in all respects been duly
authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
SOUTH BEND REDEVELOPMENT AUTHORITY, in consideration of
the premises and the acceptance of such Bonds by the holders
thereof, the issuance by the Initial Credit Facility Issuer of the
Initial Credit Facility 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 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 Indenture, and in performance of the authority
of every kind and nature which said Authority has or may have and,
subject to the prior rights of the Bondholders, the payment of the
obligations of the Authority under the Credit Facility Agreement
(as hereinafter defined), subject to Section 1301 hereof and the
performance of all of the covenants and conditions therein
contained, has executed and delivered this Indenture and has
pledged and assigned and by these presents does hereby pledge and
assign unto Norwest Bank Indiana, N.A., as Trustee and to its
successors in said trust and to its assigns and, subject to the
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rights of the Bondholders, to the Credit Facility Issuer and its
successors and assigns,-the Lease (as hereinafter defined) and .the
Pledged Funds as hereinafter defined (said moneys being herein
sometimes referred to as the "trust estate") subject to the
provisions of this Agreement requiring or permitting the
application thereof for the purposes and on the terms set forth in
this Indenture.
The pledge herein made is and shall be subject to the
provisions of this Indenture 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 Indenture, 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 Indenture, and
subject to the rights of the Bondholders, for the benefit and
security of the Credit Facility Issuer with respect to the
obligations of the Authority under the Credit Facility Agreement
and any related agreements with the Credit Facility Issuer.
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- Indenture 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, and if all
obligations payable with respect to the Credit Facility delivered
following termination thereof have been paid in full to the
satisfaction of the Credit Facility Issuer, as appropriate, then
this Agreement and the rights hereby granted shall cease, determine
and be void, but otherwise, this Indenture 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 and, on a wholly subordinated basis, the
Credit Facility Issuer, as follows:
•
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ARTICLE I
DEFINITIONS
Section 101. Definitions. In addition to the words and
terms defined elsewhere in this Indenture, the following words and
terms as used herein shall have the following meanings unless the
context or use indicates another or different meaning or intent.
amended.
"Act" means Indiana Code 36-7-14.5 as from time to time
"Adjustable Long Mode" means any Adjustment Period during
which the Rate Determination Date and Rate Change Date for each
Rate Period therein (which shall have a duration of 30 days or
more) shall be designated by the Authority pursuant to Section 601
hereof.
"Adjustable Long Rate" means, for each Rate Period within
an Adjustable Long Mode applicable to a Bond, a fixed per annum
interest rate borne by such Bond established pursuant to Section
202(c), 601(e) or 602(b) hereof equal to the lowest interest rate
which, in the judgment of the Remarketing Agent, would enable such
Bond to be remarketed at the principal amount thereof, plus accrued
interest thereon, if any, on the Rate Change Date for such Rate
Period.
"Adjustment Date" means (a) the Closing Date, (b) any
date which is the first day of an Adjustment Period designated by
the Remarketing Agent in the manner set forth in Section 601
hereof, (c) any Substitute Adjustment Date designated by the
Authority in the manner set forth in Section 602 hereof and (d) any
proposed Conversion Date designated by the Authority in the manner
set forth in Section 603 hereof.
"Adjustment Period" means, with respect to each Bond,
each period commencing on an Adjustment Date for such Bond to and
including Maturity thereof or the day immediately preceding the
immediately succeeding Adjustment Date for such Bond, during which
period such Bond shall operate in one type of Mode.
"Affidavit of Project Completion" means the affidavit set
forth on AIA Form No. G704 filed with the Trustee by the Authority
pursuant to Section 302 of this Indenture.
"Alternate Credit Facility" means a credit facility
(other than (a) the Initial Credit Facility or (b) a Renewal Credit
Facility), including, without limitation, a letter of credit of a
commercial bank or a credit facility from a financial institution
(including a United States branch of a foreign bank), or a
combination thereof, which provides security for payment of the
principal of and interest on the Bonds when due (referred to in
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this definition as "credit support") and for payment of the
• purchase price of Bonds delivered or deemed delivered in accordance
with Article V of this Indenture (referred to in this definition
as "liquidity support"); provided that an Alternate Credit Facility
may be issued to provide only credit support or liquidity support
so long as a separate Alternate Credit Facility or Renewal Credit
Facility provides at all times while such Alternate Credit Facility
is in effect complementary credit support or liquidity support, as
the case may be, so that at all times while any of the Bonds bear
interest at a Weekly Rate or an Adjustable Long Rate such Bonds
shall be entitled to credit support and liquidity support. Any
amendment of a Credit Facility which is not a Renewal Credit
Facility shall be an Alternate Credit Facility.
"Authority" means the South Bend Redevelopment Authority,
a public body, corporate and politic duly organized and validly
existing under the laws of the State of Indiana, and its successors
and assigns.
"Authorized Denomination" means, prior to the Conversion
Date with respect to a particular Bond, $100,000 or any integral
multiple thereof (except for one Bond issuable in any amount
greater than $100,000), and after the Conversion Date with respect
to a particular Bond, $5,000 or any integral multiple thereof.
"Authorized Officer" means (i) in the case of the
• Authority, the President or Vice President; (ii) in the case of the
Trustee, any Vice President, any Assistant Vice President, any
Trust Officer and any other person authorized by or pursuant to the
by-laws of the Trustee or a resolution of the Board of Directors
of the Trustee; and (iii) in the case of the Credit Facility
Issuer, any officer authorized by or pursuant to the by-laws or
resolution of the Board of Directors of the Credit Facility Issuer.
"Bank's Percentage" means, as of any date of
determination, the quotient (expressed as a percentage) obtained
by dividing (a) (i) the principal amount of Bonds outstanding which
are entitled to the benefits of a Credit Facility plus (ii) the
principal amount of Pledged Bonds by (b) the principal amount of
Bonds outstanding.
"Board" means the Board of Directors of the Authority.
"Bondholder," "holder," "owner" or"owner of the Bonds"
means the registered owner of any Bond.
"Bond" or "Bonds" means any Bond or Bonds, or all of the
Bonds, as the case may be, authenticated and delivered under this
Indenture.
"Bond Purchase Fund" means the trust fund so designated
which is created and established pursuant to Section 412 hereof.
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• "Bond Register" means the registration books of the
Authority kept by the Trustee (in its capacity as Registrar) or by
the Tender Agent (if designated by the Trustee to act as Registrar
pursuant to Section 715 hereof) or by any Co-Registrar (if
designated by the Trustee pursuant to Section 715 hereof) to
evidence the registration and transfer of Bonds.
"Business Day" means a day of the year which is not (a)
a day on which banking institutions are authorized or required to
close in New York, New York, or in the cities where the principal
offices of the Trustee, Remarketing Agent, Tender Agent and Credit
Facility Issuer are located or (b) a day on which the New York
Stock Exchange is closed.
"Capitalized Interest Account" means the account so
designated which is created and established pursuant to Section 402
hereof.
"Closing Date" means June 29, 1994, the date of the
initial authentication and delivery of the Bonds.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time. Each reference to a section of the Code
herein shall be deemed to include the United States Treasury
Regulations, including temporary and proposed regulations, relating
to such section which are applicable to the Bonds or the use of the
proceeds thereof.
"Commission" means the South Bend Redevelopment
Commission or if said commission shall be abolished, the successor
thereto.
"Construction Fund" means the trust fund so designated
which is created pursuant to Section 302 of this Indenture.
"Conversion Date" means an Adjustment Date for any Bond
on which it begins to bear interest at a Fixed Rate.
"Credit Facility" means the Initial Credit Facility,
Renewal Credit Facility or Alternate Credit Facility at the time
in effect.
"Credit Facility Agreement" means, initially, the Letter
of Credit and Reimbursement Agreement dated as of June 1, 1994,
between the Authority and the Initial Credit Facility Issuer as
such agreement may from time to time be amended or supplemented,
and thereafter means the agreement pursuant to which the Credit
Facility Issuer agrees to issue any Renewal Credit Facility or
Alternate Credit Facility at the time in effect, as such agreement
may from time to time be amended or supplemented.
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"Credit Facility Issuer" means the Initial Credit
Facility Issuer for the period during which the Initial Credit
Facility and Initial Credit Facility Agreement are in effect, and
thereafter shall mean the Credit Facility Issuer then obligated
under the Renewal Credit Facility and Renewal Credit Facility
Agreement or Alternate Credit Facility and Alternate Credit
Facility Agreement at the time in effect.
"Defaulted Interest" means interest on any Bond which is
payable but not duly paid on the date due.
"Demand Date" means with respect to any Bond bearing
interest at a Weekly Rate, the Business Day specified in the notice
received by the Tender Agent upon which the owner of such Bond
intends to tender such Bond (or any portion thereof in an
Authorized Denomination) for purchase as provided in Section 501
hereof, which Business Day shall be not less than seven calendar
days after the date such notice is received.
"DTC" means The Depository Trust Company.
"DTC Participant" means those broker-dealers, banks and
other organizations reflected as such on the books of DTC.
"ERISA" means the Employment Retirement Income Security
Act of 1974, as in effect from time to time.
• "Event of Default" or "event of default" means an of
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those events defined as events of default under Section 902 of this
Indenture.
"Expense Account" means the account in the Operation and
Reserve Fund which is created and established pursuant to Section
404 hereof.
"Fixed Mode" means the Adjustment Period commencing on
the Conversion Date for a Bond and ending on the Maturity thereof,
as established pursuant to Section 603 hereof.
"Fixed Rate" means, for the Fixed Mode applicable to a
Bond, a fixed per annum interest rate borne by such Bond
established pursuant to Section 202 (d) hereof equal to the lowest
interest rate which, in the judgment of the Remarketing Agent,
would enable such Bond to be remarketed at the principal amount
thereof on the Conversion Date for such Fixed Mode.
"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
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agency or instrumentality thereof when such obligations are backed
by the full faith and credit of the United States of America.
"Immediate Notice" means notice by telephone, telex or
telecopier to such address as the addressee shall have directed in
writing, promptly followed by written notice by first class mail,
postage prepaid; provided, however, that if any Person required to
give an Immediate Notice shall not have been provided with the
necessary information as to the telephone, telex or telecopier
number of an addressee, Immediate Notice shall mean written notice
by first class mail, postage prepaid.
"Indenture" means this Trust Indenture dated as of June
1, 1994 between the Authority and the Trustee, as it may from time
to time be amended or supplemented.
"Independent Counsel" means an attorney duly admitted to
practice law before the highest court of any state and, without
limitation, may include independent legal counsel for the
Authority, the Trustee or the Tender Agent.
"Initial Credit Facility" means the transferable
irrevocable direct pay letter of credit delivered by the Initial
Credit Facility Issuer to the Trustee concurrently with the
original issuance of the Bonds.
"Initial Credit Facility Issuer" means The Fuji Bank,
Limited, New York Branch.
"Interest Component" means the maximum amount stated in
the Credit Facility (as reduced and reinstated from time to time
in accordance with the terms thereof) which may be drawn for the
payment of accrued interest on the Bonds or for the payment of the
portion of the purchase price of Tendered Bonds corresponding to
interest accrued on the Tendered Bonds.
"Interest Coverage Period" means the number of days
specified in the Credit Facility, initially days, and any other
number of days as may be required by Section 406(h) hereof, which
is used to determine the Interest Component.
"Interest Coverage Rate" means the rate which is used to
determine the Interest Component which shall be the Maximum Rate
for Bonds secured by the Initial Credit Facility, and shall be
specified for Bonds bearing interest in each particular Mode
subsequent to the term of the Initial Credit Facility by the
Remarketing Agent as the maximum interest rate on such Bonds, in
writing to the Trustee, at the time such Bonds commence bearing
interest in accordance with such Mode as such specification may be
changed from time to time by the Remarketing Agent subject to
compliance with Section 406(h) hereof.
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"Interest Payment Date" means (a) for each Bond, each
Adjustment Date (including without limitation a proposed Conversion
Date) therefor, (b) for any Bond in a Weekly Mode, the first
Business Day of each calendar month, (c) for any Bond in an
Adjustable Long Mode for any Rate Period which exceeds 366 days
duration, each February 1 and August 1, (d) for any Bond in an
Adjustable Long Mode, each Rate Change Date, (e) for any Bond in
a Fixed Mode, each February 1 and August 1, commencing as provided
in Section 603(g) hereof, (f) for any Pledged Bond, the date such
Pledged Bond is remarketed pursuant to the Remarketing Agreement,
(g) for each Bond, the Maturity thereof, (h) for any Bond bearing
interest at a Weekly Rate or an Adjustable Long Rate, any
Substitution Date, and (i) any Renewal Date on which the Bonds are
subject to mandatory tender as provided in Section 503 hereof.
"Interest Rate Cap Agreement" means the Interest Rate Cap
Agreement between the Authority and First Chicago Capital Markets,
Inc., dated as of June , 1994, as the same may be amended,
supplemented or assigned from time to time, or any similar
agreement as may be substituted therefor.
"Lease" means the lease by the Authority to the
Commission, dated as of November 1, 1993, as amended on June 3,
1994, and as further amended on June , 1994, as the same may be
amended or supplemented, to the extent it relates to and is
applicable to the Project (as defined herein, not as defined in the
• Lease) .
"LOC Interest Sub-account" means the separate sub-
account in the Principal and Interest Account which is created and
established therein pursuant to Section 402(a) hereof.
"LOC Principal Sub-account" means the separate account
in the Principal and Interest Account which is created and
established therein pursuant to Section 402(a) hereof.
"LOC Redemption Account" means the separate account in
the Redemption Fund which is created and established therein
pursuant to Section 407 hereof.
"Maturity" means February 1, 2019, and, with respect to
each Bond which has been assigned a specific mandatory Sinking Fund
redemption date or maturity date pursuant to Section 510(e)(i) or
(ii) hereof, means such mandatory Sinking Fund redemption date.
"Maximum Rate" means 12% per annum.
"Mode" means a Weekly Mode, Adjustable Long Mode or Fixed
Mode.
"Moody's" means Moody's Investors Service Inc., a
corporation organized and existing under the laws of the State of
•
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Delaware, its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "Moody's" shall be deemed
to refer to any other nationally recognized securities rating
agency designated by the Trustee., at the written direction of the
Authority with written notice to the Remarketing Agent and the
Credit Facility Issuer.
"No-Call Period" means the period of time during which
a Bond in an Adjustable Long Mode or a Fixed Mode may not be called
for optional redemption as set forth in Section 510(a)(ii) or
510(a)(iii) hereof.
"Official Statement" means the Official Statement
prepared in connection with the issuance and sale of the Bonds.
"Operation and Reserve Fund" means the trust fund so
designated which is created and established pursuant to Section
404.
"Opinion of Bond Counsel" means a written opinion of a
law firm having a national reputation in the field of municipal law
whose opinions are generally accepted by purchasers of municipal
bonds, which counsel and opinion, including the scope, form,
substance and other aspects thereof, is acceptable to the Authority
and the Trustee, and which opinion may be based upon a ruling or
• rulings of the Internal Revenue Service.
"Outstanding Bonds" or "Bonds outstanding" or
"outstanding Bonds" means, as of any given date, all Bonds which
have been duly authenticated and delivered under this Indenture,
except:
(a) Bonds cancelled after purchase in the open market
or because of payment at or redemption prior to Maturity;
(b) Bonds for the payment or redemption of which cash
or Government Obligations or both shall have been theretofore
deposited with the Trustee (whether upon or prior to the Maturity
or redemption date of any such Bonds) in accordance with
Article XII hereof; provided that if such Bonds are to be redeemed
prior to the Maturity thereof, notice of such redemption shall have
been given or arrangements satisfactory to the Trustee shall have
been made therefor, or waiver of such notice satisfactory in form
to the Trustee shall have been filed with the Trustee;
(c) Bonds deemed to be tendered in accordance with
Section 409 or no longer deemed to be outstanding as provided in
Section 511(d) of this Indenture; and
(d) Bonds in lieu of which other Bonds have been
authenticated under Section 205, 207 or 208 hereof.
10
"Paying Agent" means the bank or banks, if any,
designated pursuant to this Indenture to receive and disburse the
principal of and interest and premium, if any, on the Bonds.
"Person" means any natural person, firm, joint venture,
association, partnership, business trust, corporation, public body,
agency or political subdivision thereof or any other similar
entity.
"Plans and Specifications" means the plans and
specifications for the construction portion of the Project which
have been prepared by an architect and approved by the Authority
and are on file with the Trustee, together with such modifications
and additions thereto as are made by the Authority in accordance
with the provisions of Section 8 of the Lease.
"Pledge Agreement" means the Pledge Agreement among the
Authority, the Credit Facility Issuer and the Trustee, as the same
may be amended, supplemented or assigned from time to time, or any
similar agreement as may be substituted therefor.
"Pledge Resolution" means the resolution of the
Commission adopted on June 17, 1994, creating and establishing
certain funds and accounts for the payment of rentals owed by the
Commission to the Authority pursuant to the Lease.
• "Pledged Bonds" means Tendered Bonds purchased with
moneys drawn under the Credit Facility pursuant to Section 508(c)
hereof and pledged to the Credit Facility Issuer in accordance with
the Pledge Agreement.
"Pledged Funds" means (i) the proceeds from the sale of
Bonds; (ii) the rentals to be received under the Lease; (iii) any
moneys received by the Trustee on behalf of the Authority pursuant
to the Interest Rate Cap Agreement; (iv) any moneys received by the
Trustee as a result of a draw or draws upon the Credit Facility;
and (v) all money and securities from time to time held by the
Trustee under the terms of this Agreement (except money 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, and except for money held in trust
pursuant to Section 405), including without limitation the moneys
held in trust funds.
"Principal and Interest Account" means the account so
designated which is created and established pursuant to Section 402
hereof.
"Principal Office" means (a) when used with respect to
the Trustee, the principal corporate trust office of the Trustee
located in South Bend, Indiana, (b) when used with respect to the
•
11
Paying Agent, the Tender Agent and the Remarketing Agent, the
respective offices thereof designated in writing to the Trustee
unless, in the case of the Paying Agent, the Trustee is performing
such functions, in which case it shall mean the Principal Office
of the Trustee, and (c) when used with respect to the. Credit
Facility Issuer, the office specified in the Credit Facility or
such other offices designated as such by the Credit Facility Issuer
in writing to the Trustee, the Authority, the Tender Agent and the
Remarketing Agent.
"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 more fully described in Exhibit B hereto, which Project is to
be financed with the proceeds of the Bonds and leased to the
Commission, pursuant to the Lease.
"Purchase Contract" means the Purchase Contract for the
Bonds between the Authority and the purchaser named therein.
"Qualified Investments" 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 Corporation
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.
"Rate Change Date" means for each Rate Period (a) during
any Weekly Mode, Wednesday or such other day of the week designated
as such by the Remarketing Agent from time to time, in accordance
with the provisions of Section 202(b)(ii) hereof, (b) during any
Adjustable Long Mode, the Business Day(s) specified in the notice
delivered to the Trustee and the Tender Agent in accordance with
Section 601(b) or 602(b) hereof, and (c) each Adjustment Date.
12
"Rate Determination Date" means for (a) each Rate Period
• during any Weekly Mode, Tuesday or such other day of the week
designated as such by the Remarketing Agent from time to time, in
accordance with the provisions of Section 202(b)(ii) hereof, next
preceding the Rate Change Date for such Rate Period (unless such
day is not a Business Day, in which case the Rate Determination
Date shall be the immediately preceding Business Day), (b) each
Rate Period during any Adjustable Long Mode, the Business Day(s)
specified in the notice delivered to the Trustee and the Tender
Agent in accordance with Section 601(b) or 602 (b) hereof which
Business Day shall not be less than one calendar day nor more than
seven calendar days prior to the first day of such Rate Period,
(c) each Rate Period during a Fixed Mode, the date of the firm
underwriting or purchase contract referred to in Section 603,
(d) the Rate Period following a proposed Conversion Date in the
event of a failed conversion, such proposed Conversion Date,
(e) the Rate Period following a failed conversion pursuant to
Section 601(e), the proposed Adjustment Date, and (f) a Rate Period
commencing on a Substitution Date, such Substitution Date.
"Rate Period" means, with respect to each Bond, each
period commencing on a Rate Change Date for such Bond to and
including the Maturity thereof or the day immediately preceding the
immediately succeeding Rate Change Date for such Bond, during which
period such Bond shall bear interest at one particular interest
rate.
• "Rating Agency" means Moody's or S&P.
"Rating Decline Notice" means a notice received by the
Authority from any Rating Agency then maintaining a rating on any
of the Bonds secured by the Credit Facility that, upon substitution
of an Alternate Credit Facility for the Credit Facility then in
effect, the rating on such Bonds will thereafter be withdrawn or
reduced from the rating borne by such Bonds immediately prior to
such substitution.
"Rebate Fund" means the fund which is created and
established to comply with Section 148 (f) of the Code pursuant to
Section 405 hereof.
"Record Date" means (a) with respect to any Bond during
a Weekly Mode or an Adjustable Long Mode for any Rate Period of
366 days or less, the Business Day immediately preceding each
Interest Payment Date, (b) with respect to any Bond during an
Adjustable Long Mode for any Rate Period exceeding 366 days or
during a -Fixed Mode, January 15 or July 15 (whether or not a
Business Day) preceding each Interest Payment Date.
"Redemption Fund" means the trust fund so designated
which is created and established pursuant to Section 407 hereof.
13
"Registrar" means the Trustee or, if so designated in a
written notice delivered by the Trustee to the Authority and the
Tender Agent, the Tender Agent when acting as such in accordance
with Section 208 hereof, and "Co-Registrar" means, if so designated
in a written notice delivered by the Trustee to the Authority and
the Tender Agent,. the Tender Agent, or its successors, when acting
as such pursuant to Section 208 hereof.
"Remarketing Agent" means .the placement or remarketing
agent at the time serving as such under the Remarketing Agreement
and designated as the Remarketing Agent for purposes of this
Indenture. The initial Remarketing Agent is First Chicago Capital
Markets, Inc.
"Remarketing Agreement" means the Remarketing Agreement
dated as of June 1, 1994, between the Authority and the Remarketing
Agent, as the same may be amended, supplemented or assigned from
time to time, or any similar agreement as may be substituted
therefor.
"Renewal Credit Facility" means a Credit Facility
provided in accordance with this Indenture which has been issued
with terms and conditions identical to, and by the same provider
of, the Credit Facility in substitution for which the Renewal
Credit Facility is to be provided, except for:
• (a) the Stated Expiration Date;
(b) an increase or decrease in the Interest Coverage
Rate or the Interest Coverage Period;
(c) an increase or decrease in the Interest Component;
(d) an increase or decrease in the portion of the Credit
Facility designated to pay premium upon redemption or purchase of
Bonds to the extent required or permitted by Section 406(h) hereof
or to pay principal upon mandatory sinking fund redemption of
Bonds;
(e) changes in terms and conditions which in the
judgment of the Trustee are not adverse to the interests of the
Authority, the Trustee or any Bondholder; or
(f) any combination of (a), (b),(c), (d) and (e).
"Renewal Credit Facility Agreement" means, with respect
to any Renewal Credit Facility, the agreement pursuant to which the
Credit Facility Issuer agrees to issue such Renewal Credit Facility
or allow the prior Credit Facility to be renewed; a Renewal Credit
Facility Agreement may consist of a supplement or amendment to the
existing Credit Facility Agreement.
• 14
"Renewal Date" means a date which is 20 days prior to the
Stated Expiration Date of the Credit Facility at the time in effect
(or the next preceding Business Day if such day is not a Business
Day).
"Representation Letter" means the Letter of
Representation by and between DTC and the Authority.
"Reserve Amount's means the amount of Bond proceeds
deposited into the Reserve Fund pursuant to Section 403.
"Reserve Fund" means the account so designated which is
created and established pursuant to Section 403 hereof.
"Sinking Fund" means the trust fund so designated which
is created and established pursuant to Section 402 hereof.
"S&P" means Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc., its successors and its assigns, and, if
division shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities
rating agency designated by the Trustee, at the written direction
of the Authority and the Remarketing Agent and written consent of
the Credit Facility Issuer.
• "Special Record Date" means the date fixed by the Trustee
pursuant to Section 202(e) of this Indenture for the payment of
Defaulted Interest.
"State" means the State of Indiana.
"Stated Expiration Date" means the stated date of
expiration or termination of the Credit Facility, including any
extensions thereof.
"Substitute Adjustment Date" means any Business Day
during any Adjustment Period for Pledged Bonds designated by the
Authority in accordance with Section 602 of this Indenture as the
first day of a new Adjustment Period.
"Substitution Date" means the date specified pursuant to
Section 502 hereof upon which an Alternate Credit Facility is to
be substituted for the Credit Facility then in effect if the
Authority has received a Rating Decline Notice with respect to such
substitution, which date must be a Business Day and, if any Bonds
bear interest at an Adjustable Long Rate, such Business Day must
be a Rate Change Date for all such Bonds, and, in any case, such
Business Day must be a date on which the Credit Facility for which
substitution is being made is available to be drawn upon.
• 15
"Tender Agent" initially means the Trustee or any agent
designated by the Trustee pursuant to Section 1017 of this
Indenture.
"Tendered Bonds" means Bonds tendered or deemed tendered
for purchase pursuant to Section 501, 502, 503, 504 or 505 hereof.
"Trustee" means Norwest Bank Indiana, N.A., or any
successor trustee under the Indenture.
"United States Government Obligations" means noncallable
direct obligations of, or obligations the timely payment of the
principal of and interest on which is fully guaranteed by, the
United States of America.
"Weekly Mode" means any Adjustment Period during which
Rate Determination Dates occur on the Business Day of each calendar
week next preceding the Rate Change Date in such calendar week
specified by the Remarketing Agent in the manner .set forth in
Section 202 (b) of this Indenture.
"Weekly Rate" means, for each Rate Period within a Weekly
Mode applicable to a Bond, a fixed per annum interest rate borne
by such Bond established pursuant to Section 202(b), 601(c) or
602(b) hereof equal to the lowest interest rate which, in the
judgment of the Remarketing Agent, would enable such Bond to be
• remarketed at the principal amount thereof, plus accrued interest
thereon, if any, on the Rate Change Date for such Rate Period.
"Written Request" means a request in writing signed 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 Works"), so long as the Agency Agreement
(the "Agency Agreement") dated as of March 15, 1994, between the
Authority and the Board of Works is in effect.
Section 102. Rules of Construction. Unless the context
shall otherwise require,
(a) an accounting term not otherwise defined herein
shall have the meaning assigned to it in accordance with generally
accepted accounting principles;
(b) references to Articles and Sections are to the
Articles and Sections of this Indenture;
(c) words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter
genders;
•
16
(d) unless the context shall otherwise indicate, words
importing the singular number shall include the plural and vice
versa; and
(e) headings of Articles and Sections herein and the
table of contents hereof are solely for convenience of reference,
do not constitute a part hereof and shall not affect the meaning,
construction or effect hereof.
ARTICLE II
THE BONDS
Section 201. Authority for and Issuance of Bonds. There
is hereby authorized and created under this Indenture an issue of
bonds designated ~~South Bend Redevelopment Authority Variable Rate
Demand Lease Rental Revenue Bonds of 1994 (College Football Hall
of Fame Project).~~ No Bonds may be issued under the provisions of
this Indenture except in accordance with this Article. The total
principal amount of Bonds that may be issued and outstanding
hereunder is hereby expressly limited to $
The Bonds shall be issuable as fully registered bonds,
without coupons, in any Authorized Denomination, substantially in
the form as provided in Exhibit A hereto. Unless the Authority
shall otherwise direct, the Bonds shall be lettered and numbered
from R-1 and upwards. The Bonds, as initially issued, will be
dated the date of issuance and shall mature, subject to prior
redemption and purchase as provided in Article V hereof, upon the
terms and conditions hereinafter set forth on February 1, 2019.
Each Bond authenticated prior to the first Interest
Payment Date thereon shall bear interest from the date of the first
authentication and delivery of the Bonds. Each Bond authenticated
on or after the first Interest Payment Date thereon shall bear
interest from the Interest Payment Date thereon next preceding the
date of authentication thereof, unless such date of authentication
shall be an Interest Payment Date to which interest on such Bond
has been paid in full or duly provided for, in which case such Bond
shall bear interest from such date of authentication; provided that
if, as shown by the records of the Trustee, interest on such Bond
shall be in default, any Bond issued in exchange for or upon the
registration of transfer of such Bond shall bear interest from the
date to which interest has been paid in full on such Bond or, if
no interest has been paid on such Bond, the date of the first
authentication and delivery of fully executed and authenticated
Bonds hereunder. Each Bond shall bear interest on overdue
principal and, to the extent permitted by law, on overdue premium,
if any, and interest at the rates borne by such Bonds on the date
on which such principal, premium or interest became due and
~ payable.
17
Interest on the Bonds shall accrue during a Weekly Mode
from the later of (i) the first day of each calendar month or
(ii) the Adjustment Date for such Weekly Mode, to and including the
earlier of (iii) the last day of each calendar month or (iv) the
day prior to the Adjustment Date for the Mode which succeeds such
Weekly Mode. Interest on the Bonds shall accrue during an
Adjustable Long Mode (A) with respect to any Bond in an Adjustable
Long Mode for any Rate Period which is 366 days or less from the
Rate Change Date for such Bonds to the day prior to the next
succeeding Rate Change Date and (B) with respect to any Bond in an
Adjustable Long Mode for any Rate Period which exceeds 366 days
from each February 1 and August 1 to, but not including, the next
succeeding February 1 or August 1 and from each succeeding
February 1 or August 1, as the case may be, to the next succeeding
February 1 or August 1. Interest on the Bonds shall accrue during
a Fixed Rate Period from the Conversion Date to, but not including,
the next succeeding February 1 or August 1 and from each succeeding
February 1 or August 1, as the case may be, to the next succeeding
February 1 or August 1. The foregoing notwithstanding, no interest
shall accrue on any Bonds prior to the first authentication and
delivery of Bonds or after the Maturity thereof or after the
redemption or mandatory purchase date for such Bond (provided the
redemption or purchase price is paid or provided for in accordance
with the provisions of this Indenture).
• The principal of, premium, if any, and interest on the
Bonds shall be payable in any coin or currency of the United States
of America which, at the respective dates of payment thereof, is
legal tender for the payment of public and private debts.
The principal of and premium, if any, on Bonds bearing
interest at a Weekly Rate or an Adjustable Long Rate shall be
payable at the Principal Office of the Tender Agent, upon
presentation and surrender of such Bonds. The principal of and
premium, if any, on Bonds bearing interest at a Fixed Rate shall
be payable at the Principal Office of the Trustee or, at the option
of the owner, at the Principal Office of any Paying Agent, if any,
named in any such Bond, upon presentation and surrender of such
Bonds. Payment of principal on any Bond may be made to any owner
of $1,000,000 or more in aggregate principal amount of Bonds by
wire transfer to such owner on the principal payment date for said
Bonds upon written notice from such owner containing the wire
transfer address within the continental United States to which such
owner wishes to have such wire directed, which written notice is
received not later than the Business Day next preceding the
15th day prior to the principal payment date applicable to such
Bonds, provided that such wire transfer shall only be made upon
presentation and surrender of such Bonds. at the Principal Office
of the Tender Agent on the principal payment date. Any payment of
the purchase price of a Tendered Bond shall be payable at the
18
Principal Office of the Tender Agent, upon presentation and
surrender of such Bond, as provided in Section 506 hereof.
The interest on the Bonds shall be paid by check mailed
on the applicable Interest Payment Date to the person appearing on
the Bond Register as the registered owner thereof as of the close
of business of the Trustee on the Record Date at the address of
such owner as it appears on the Bond Register or at such other
address as is furnished to the Trustee in writing by such owner not
later than the Record Date. Payment of interest on any Bond may
be made to any owner of $1,000,000 or more in aggregate principal
amount of Bonds as of the close of business of the Trustee on the
Record Date for a particular Interest Payment Date by wire transfer
to such owner on such Interest Payment Date upon written notice
from such owner containing the wire transfer address within the
continental United States to which such owner wishes to have such
wire directed, which written notice is received not later than the
Business Day next preceding the Record Date. Anything herein to
the contrary notwithstanding, payment of interest on Bonds which,
as of the Record Date for the applicable Interest Payment Date,
constitute Pledged Bonds, shall be made by wire transfer to the
Principal Office of the Credit Facility Issuer and payment of
Defaulted Interest shall be made as provided in Section 202(e)
hereof.
Section 202. Interest on Bonds. (a) General. The Bonds
• shall bear interest from and including the date of the first
authentication and delivery of the Bonds until payment of the
principal or redemption price thereof shall have been made or
provided for in accordance with the provisions hereof, whether at
Maturity, upon redemption, acceleration or otherwise, provided that
in no event shall interest accrue on Bonds bearing interest at a
Weekly Rate or an Adjustable Long Rate greater than that permitted
by Section 514(b) hereof. Interest accrued on the Bonds during
each Rate Period shall be paid in arrears on each Interest Payment
Date. Interest on the Bonds shall be computed (i) during any
Weekly Mode, and during any Adjustable Long Mode for any Rate
Period of a duration of 366 days or less, upon the basis of a 365-
or 366-day year, as applicable, for the number of days actually
elapsed and (ii) during any Adjustable Long Mode for any Rate
Period of a duration of greater than 366 days or during a Fixed
Mode, upon the basis of a 360-day year consisting of twelve 30-
day months. The Bonds shall initially bear interest at the Weekly
Rate until the Rate Change Date as provided in Schedule I attached
hereto. Thereafter, the Bonds shall continue to bear interest at
the Weekly Rate until and unless any portion thereof is converted
to a different Mode as provided in Section 601, 602, or 603 hereof.
(b) Weekly Mode. (i) For each Rate Period during any
Weekly Mode, each Bond which will bear interest at a Weekly Rate
for such Rate Period shall bear interest beginning on the Rate
~ Change Date at the Weekly Rate determined on the Rate Determination
19
Date in the following manner for each such Rate Period. No later
• than 11:00 a.m., New York City time, on the Rate Determination Date
for each such Rate Period, the Remarketing Agent will determine,
and is required to give notice by telecopy to the Trustee and the
Tender Agent of the Weekly Rate. Except on an Adjustment Date, in
the event that the Weekly Rate for any Rate Period is not
determined by the Remarketing Agent, the rate of interest borne by
the Bonds bearing interest at a Weekly Rate for the immediately
preceding Rate Period shall remain in effect for such Rate Period.
The Remarketing Agent shall make available by telephone to each
owner of Bonds in the Weekly Mode who so requests the Weekly Rate
which will apply to such Bonds during such Rate Period.
(ii) If at any time the Remarketing Agent shall
determine that, in its judgment, the scheduled Rate Determination
Dates or Rate Change Dates during a Weekly Mode have become
inappropriate (taking into account general market practice with
respect to periodic adjustment of rates on instruments comparable
to the Bonds bearing interest at the Weekly Rate, whether based
upon the time of compilation or reporting of any interest rate or
financial index or indicator or otherwise), the Remarketing Agent
may designate new scheduled Rate Determination Dates and/or Rate
Change Dates, to remain in effect until another redetermination of
scheduled Rate Determination Dates or Rate Change Dates in
accordance with this subparagraph. The Remarketing Agent shall
give written notice of any change in scheduled Rate Determination
• Dates and/or Rate Change Dates during a Weekly Mode to the
Authority, the Trustee, the Tender Agent and the Credit Facility
Issuer, and such change shall become effective on the first
scheduled Rate Determination Date or Rate Change Date, as the case
may be, so designated occurring not less than 14 days following the
giving of such notice. Promptly upon receipt of such notice, the
Trustee shall notify each affected Bondholder of such change in
writing.
(c) Adjustable Lona Mode. For each Rate Period during
any Adjustable Long Mode each Bond, which will bear interest at an
Adjustable Long Rate for such Rate Period, shall bear interest
beginning on such Rate Change Date at the Adjustable Long Rate
determined on the Rate Determination Date in the following manner
for each such Rate Period. No later than 11:00 a.m., New York City
time, on the Rate Determination Date for each such Rate Period, the
Remarketing Agent will determine and is required to give telephonic
notice (confirmed by telecopy) to the Trustee and the Tender Agent
of the Adjustable Long Rate. In the event that the Adjustable Long
Rate for any Bond is not determined by the Remarketing Agent, the
rate of interest borne by such Bonds shall be determined pursuant
to Section 601(e) hereof.
(d) Fixed Rate. From and after the Conversion Date for
any Bond, such Bond shall bear interest at the Fixed Rate with
respect thereto established as provided in Section 603 hereof.
• 20
• (e) Defaulted Interest. Defaulted Interest with respect
to any Bond shall cease to be payable to the owner of such Bond on
the relevant Record Date and shall be payable to the owner in whose
name such Bond is registered at the close of business of the
Trustee on the Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Authority shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Bond and the date
of the proposed payment (which date shall be such as will enable
the Trustee to comply with the next sentence hereof), and at the
same time the Authority shall deposit or cause to be deposited with
the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Bondholders
entitled to such Defaulted Interest as provided in this Section.
Following receipt of such funds, the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 nor less than ten days prior to the date of the
proposed payment and not less than ten days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Authority of such Special Record Date
and, in the name and at the expense of the Authority, shall cause
notice of the proposed payment of such Defaulted Interest and the
• Special Record Date therefor to be mailed, first class postage
prepaid, to each owner of a Bond at the address of such owner as
it appears on the Bond Register not less than ten days prior to
such Special Record Date. Such Defaulted Interest shall be paid
to the owners in whose names the Bonds on which such Defaulted
Interest is to be paid are registered on such Special Record Date.
(f) Notice to Bondholders. The Trustee agrees to
provide (which may be through the Tender Agent) to any Bondholder,
upon the request of such Bondholder, information regarding the
Adjustment Period, Rate Periods, Interest Payment Dates, optional
redemption provisions and interest rate or rates applicable to such
Bondholder's Bonds.
Section 203. Execution. The Bonds shall be executed on
behalf of the Authority by the manual or facsimile signature of its
President and attested by the manual or facsimile signature of its
Secretary-Treasurer. The facsimile signatures of said officers
shall have the same force and effect as if such officers had
manually signed the Bonds. In case any officer the facsimile of
whose signature shall appear on the Bonds shall cease to be such
officer before the delivery of such Bonds, such facsimile signature
shall nevertheless be valid and sufficient for all purposes, the
same as if he had remained in office until delivery.
21
Section 204. Authentication. No Bond shall be valid or
obligatory for any purpose or entitled to any security or benefit
under this Indenture unless and until a certificate of
authentication on such Bond substantially in the form set forth in
Exhibit A hereto shall have been duly executed by the Trustee or
the Tender Agent, and such executed certificate of the Trustee or
the Tender Agent upon any such Bond shall be conclusive evidence
that such Bond has been authenticated and delivered under this
Indenture. The Trustee or the Tender Agent, as the case may be,
shall insert the authentication date on each Bond authenticated
hereunder. The certificate of authentication of the Trustee or the
Tender Agent on any Bond shall be deemed to have been executed by
it if signed by an authorized officer of the Trustee or the Tender
Agent, but it shall not be necessary that the same officer sign the
certificate of authentication on all of the Bonds issued hereunder
or that all of the Bonds be authenticated by the same Tender Agent.
Section 205. Form of Bonds and Temporary Bonds. The
Bonds shall be substantially in the form set forth in Exhibit A
hereto with such appropriate variations, omissions and insertions
as are permitted or required by this Indenture or deemed necessary
by the Trustee and the Authority; provided, however, that the Bonds
may be modified in such manner as is approved by the Authority for
the purpose of reflecting the substitution of an Alternate Credit
Facility in accordance with the provisions hereof. Following the
Conversion Date for any Bond, the form of such Bond may be
• appropriately revised to reflect the conversion of the interest
rate on such Bond to a Fixed Rate, to delete the provisions of the
form of Bond set forth in Exhibit A hereto which are then of no
further force and effect, to include a description of the Fixed
Mode, the terms upon which such Bond may or are required to be
redeemed and any additional security therefor and to make any other
changes therein which are necessary or appropriate in the
circumstances.
Bonds may be initially issued in temporary form
exchangeable for definitive Bonds of the same Maturity when ready
for delivery. The temporary Bonds shall be in the form of
registered Bonds without coupons in Authorized Denominations,
substantially in the form of Exhibit A hereto, with such
appropriate omissions, insertions and variations as may be required
with respect to such temporary Bonds and may contain such reference
to any of the provisions of this Indenture as may be appropriate.
Every temporary Bond shall be executed•by the Authority and be
authenticated by the Trustee or the Tender Agent upon the same
conditions and in substantially the same manner as the definitive
Bonds. If the Authority issues temporary Bonds it will execute and
furnish definitive Bonds without delay and thereupon the temporary
Bonds may be surrendered for cancellation in exchange therefor at
the Principal Office of the Trustee, and the Trustee or the Tender
Agent shall authenticate and deliver in exchange for such temporary
~ Bonds an equal aggregate principal amount of definitive Bonds of
22
the same Maturity of Authorized Denominations. Until so exchanged,
• the temporary Bonds shall be entitled to the same benefits under
this- Indenture as definitive Bonds authenticated and delivered
hereunder.
Section 206. Delivery of Bonds. Upon the execution and
delivery of this Indenture, the Authority shall execute and deliver
to the Trustee and the Trustee shall authenticate the Bonds to be
issued in the aggregate principal amount of $ and
deliver such Bonds to the respective purchasers as may be directed
by the Authority as hereinafter in this Section 206 provided.
Prior to the delivery by the Trustee of any of the Bonds,
there shall be filed with or delivered to the Trustee:
(a) a copy, certified by the Secretary-Treasurer of all
resolutions adopted and approved by the Authority authorizing the
execution and delivery of the Lease, this Indenture, the Credit
Facility Agreement, the Purchase Contract, the Remarketing
Agreement and the issuance and sale of the Bonds;
(b) an original executed counterpart of this Indenture,
the Purchase Contract, the Credit Facility Agreement, the
Remarketing Agreement and the Pledge Agreement;
(c) the original executed Credit Facility;
• (d) a request and authorization to the Trustee on behalf
of the Authority to authenticate and deliver the Bonds in an
aggregate principal amount not exceeding $ to the
respective purchasers therein identified upon payment to the
Trustee, but for the account of the Authority, of the net proceeds
from the sale of the Bonds;
(e) a certificate signed by an officer of the
Remarketing Agent (with a copy delivered to the Tender Agent)
setting forth the information necessary to complete Schedule I
hereto and certifying that such Weekly Rate and Rate Period has
been determined by the Remarketing Agent in accordance with Section
202 hereof; and
(f) such other closing documents and opinions of counsel
as the Trustee or the Authority may reasonably specify in writing
to the Trustee (which may be done through the inclusion of such
items on the final closing agenda prepared in connection with the
issuance of the Bonds).
Section 207. Mutilated, Lost, Stolen or Destroyed Bonds;
Purchased Bonds. In the event any temporary or definitive Bond is
mutilated, lost, stolen or destroyed, the Authority, in its
discretion, may execute and the Trustee or the Tender Agent may
authenticate a new Bond of like form, tenor, date, Maturity and
• 23
denomination as that mutilated, lost, stolen or destroyed and
• bearing a number not contemporaneously outstanding; provided that,
in the case of any mutilated Bond, such mutilated Bond shall first
be surrendered to the Authority, and in the case of any lost,
stolen or destroyed Bond, there shall be first furnished to the
Authority, the Trustee and the Tender Agent, if it is acting as
Bond Registrar, evidence of such loss, theft or destruction
satisfactory to the Authority, the Trustee and the Tender Agent,
together with indemnity satisfactory to them. In the event any
such Bond shall have matured or been called for redemption, instead
of issuing a duplicate Bond the Authority may pay the same without
surrender thereof. The Authority, the Trustee and the Tender Agent
may charge the holder or owner of such Bond with their reasonable
fees and expenses in this connection.
In the event that sufficient moneys are on deposit with
the Trustee or the Tender Agent to pay the applicable purchase
price of any Tendered Bond as provided herein, such Tendered Bond
shall be deemed to have been purchased whether or not delivered by
the owner thereof on the date such Tendered Bond is to be
purchased. In the event any such purchased Tendered Bond is not
so delivered, the Authority shall execute and the Trustee as to any
Bond bearing interest at a Fixed Rate, and the Trustee or the
Tender Agent as to any Bond bearing interest at a Weekly Rate or
an Adjustable Long Rate, shall authenticate and deliver .a
replacement Bond of like date, Maturity and denomination as the
• Tendered Bond and bearing a number not contemporaneously
outstanding. In the event any such purchased Tendered Bond is so
delivered, the Trustee or the Tender Agent, as the case may be,
shall register such Tendered Bond as provided in Section 508(b)
hereof.
All duplicate Bonds issued and authenticated pursuant to
this Section 207 shall constitute original, contractual obligations
of the Authority (whether or not, in the case of the first
paragraph of this Section 207, lost, stolen or destroyed Bonds be
at any time found by anyone) and shall be entitled to equal and
proportionate rights and benefits hereunder as all other
outstanding Bonds issued hereunder.
All Bonds shall be owned upon the express condition that
the foregoing provisions, to the extent permitted by law, are
exclusive with respect to the replacement or payment of mutilated,
destroyed, lost, stolen or purchased Bonds, and shall preclude any
and all other rights or remedies.
Section 208. Transfer and Exchange of Bonds; Persons
Treated as Owners. (a) The Authority shall cause books for the
registration and for the transfer of the Bonds as provided in this
Indenture to be kept by the Trustee which is hereby constituted and
appointed the Registrar for purposes of this Indenture and by any
~ Co-Registrar designated by the Trustee. At reasonable times and
24
under reasonable regulations established by the Trustee (in its
• capacity as Registrar) and any Co-Registrar, such books may be
inspected and copied by the Authority, the Remarketing Agent, the
Credit Facility Issuer, the Trustee or the Tender Agent. Subject
to the limitations contained in subsection (c) of this Section 208,
upon surrender for registration or transfer of any Bond at the
Principal Office of the Trustee, duly endorsed by, or accompanied
by a written instrument or instruments of transfer in form
satisfactory to the Trustee and duly executed by the Bondholder or
such Bondholder's attorney duly authorized in writing, the
Authority shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Bond or
Bonds of like date and tenor in Authorized Denominations of the
same Maturity for the aggregate. principal amount which the
registered owner is entitled to receive bearing numbers not
contemporaneously outstanding. Subject to the limitations
contained in subsection (c) of this Section 208, Bonds may be
exchanged at such times at such Principal Office of the Trustee
upon surrender thereof together with an assignment duly executed
by the registered owner thereof or such owner's attorney in such
form and with guarantee of signature as shall be satisfactory to
the Trustee for an equal aggregate principal amount of Bonds of
like date and tenor of any Authorized Denomination as the Bonds
surrendered for exchange bearing numbers not contemporaneously
outstanding. The execution by the Authority of any Bond of any
Authorized Denomination shall constitute full and due authorization
. of such Denomination and the Trustee shall thereby be authorized
to authenticate and deliver such registered Bond.
(b) No service charge shall be imposed upon the owner
for any exchange or transfer of Bonds. The Authority and the
Trustee may, however, require payment by the person requesting an
exchange or transfer of Bonds of a sum sufficient to cover any tax,
fee or other governmental charge that may be imposed in relation
thereto, except in the case of the issuance of a Bond or Bonds for
the unredeemed portion of a Bond surrendered for redemption in
part.
(c) Subsequent to the Conversion Date for any Bond, the
Trustee shall not be required to transfer or exchange such Bond
during the period commencing on the Record Date next preceding any
Interest Payment Date of such Bond and ending on such Interest
Payment Date nor to transfer or exchange such Bond after the
mailing of notice calling such Bond for redemption has been made
as herein provided, nor during the period of 15 days next preceding
the giving of such notice of redemption. Prior to the Conversion
Date applicable to any Bonds, the Trustee or the Tender Agent shall
not be required to exchange or register the transfer of such Bond
selected, called or being called for redemption in whole or in part
or after the mailing of notice calling such Bond for redemption, has
been made as herein provided, except that the Authority and the
25
Trustee shall be required to register the transfer of Tendered
• Bonds after such date of mailing of notice of redemption.
(d) Bonds delivered upon any registration of transfer
or exchange as provided herein or as provided in Section 207 hereof
shall be valid limited obligations of the Authority, evidencing the
same debt as the Bonds surrendered, shall be secured by this
Indenture and shall be entitled to all of the security and benefits
hereof to the same extent as the Bond surrendered.
(e) The Authority, the Trustee, the Tender Agent, the
Remarketing Agent, the Credit Facility Issuer and any Paying Agent
may treat the registered owner of any Bond as the absolute owner
thereof for all purposes, whether or not such Bond shall be
overdue, and shall not be bound by any notice to the contrary. All
payments of or on account of the principal of and premium, if any,
and interest on any such Bond as herein provided shall be made only
to or upon the written order of the registered owner thereof or
such owner's legal representative, but such registration may be
changed as herein provided. All such payments shall be valid and
effectual to satisfy and discharge the liability upon such Bond to
the extent of the sum or sums so paid.
Section 209. Rectuired Information in Bond Form. On each
date on which the Trustee or the Tender Agent authenticates and
delivers Bonds during an Adjustable Long Mode applicable to such
• Bonds as provided in Section 207 or 208 hereof, the Trustee or the
Tender Agent shall attach to each such Bond a copy of the notice
in substantially the form set forth in the form of Bond attached
as Exhibit A hereto for the purpose of maintaining an accurate
record of the terms and provisions of the Adjustment Period then
applicable to such Bond.
On each date on which the Trustee authenticates and
delivers Bonds bearing interest at a Fixed Rate from and after the
Conversion Date applicable to such Bonds, the Trustee shall issue
Bonds with such information as required pursuant to Section 603
hereof.
Section 210. Cancellation. Any Bond surrendered for the
purpose of payment or retirement or for exchange or transfer or for
replacement pursuant to Section 207 hereof shall be cancelled upon
surrender thereof to the Trustee, the Tender Agent or any Paying
Agent. If the Authority shall acquire any of the Bonds (other than
Pledged Bonds), the Authority shall deliver such Bonds to the
Trustee or the Tender Agent, as appropriate, for cancellation .and
the Trustee or the Tender Agent, as appropriate, shall cancel the
same. Any such Bonds cancelled by any Paying Agent other than the
Trustee or by the Tender Agent shall be promptly transmitted by
such Paying Agent or the Tender Agent, as the case may be, to the
Trustee. Certification of Bonds cancelled by the Trustee and the
_ Tender Agent and Bonds cancelled by a Paying Agent other than the
26
Trustee which are transmitted to the Trustee shall be made to the
Authority. Cancelled Bonds may be destroyed by the Trustee unless
instructions to the contrary are received from the Authority.
Section 211. Book Entry Provisions.
(a) Notwithstanding any other provisions of this
Article II, the Authority hereby designates The Depository Trust
Company to act as Depository (the "Depository") in connection with
the Bonds.
(b) A Representation Letter relating to the Bonds shall
be executed and delivered on behalf of the Authority by an
authorized officer thereof.
(c) The Bonds shall be initially issued in the form of
a separate fully registered Bond for each of the maturities
established in this Agreement. Upon initial issuance, the
ownership of each such Bond shall be registered in the bond
register kept by .the Trustee in the name of Cede & Co., as nominee
of the Depository. Except as provided in subsection (d) of this
Section 2.11, all of the outstanding Bonds shall continue to be
registered in the bond register kept by the Trustee in the name of
Cede & Co., as nominee of the Depository.
(d) The Authority may determine in its sole discretion
• that (i) the Depository is unwilling. or unable to discharge its
responsibilities as Depository under this Agreement and the
Representation Letter, or (ii) it is in the best interest of the
Authority that the beneficial owners of the Bonds be able to obtain
certificated Bonds. If the Authority makes the determination set
forth in clause (i), the Authority may designate a person to act
as successor depository and authorizing the execution of a new
representation letter. If a successor depository is appointed, that
successor or its nominee will be treated by the Trustee and the
Authority as the sole and exclusive owner of the Bonds,
respectively, and, as in the case of the Depository, the
responsibilities and obligations of the Trustee and the Authority
shall be solely to that successor depository or its nominee and not
to any participant in the successor or any person claiming a
beneficial ownership interest in any Bond. If the Authority makes
the determination set forth in clause (i) or (ii), the Authority
may provide for the execution by the Authority, authentication by
the Trustee and delivery to the beneficial owners of the Bonds, of
certificates for their Bonds. The Authority shall provide notice
of any determination made by the Authority under this subsection
to the Depository as provided in any Representation Letter.
(e) In accordance with Section 2.01 hereof as long as
any Bond is registered in the name of Cede & Co., as nominee of the
Depository, all payments of principal of and interest on such Bond
27
• so registered shall be made to Cede & Co., as nominee of the
Depository.
(f) With respect to Bonds registered in the bond
register kept by the Trustee in the name of Cede & Co., as nominee
of the Depository, the Authority and the Trustee shall have no
responsibility or obligation to any person owning a beneficial
interest in any of the Bonds (or any nominee of such person).
Without limiting the effect of the immediately preceding sentence,
the Authority and the Trustee shall have no responsibility or
obligation with respect to (i) the accuracy of the records of the
Depository or Cede & Co., or any brokers, dealers, banks and other
financial institutions which are members of the Depository with
respect to any ownership interest in the Bonds, (ii) the delivery
to any person, other than a Bondholder, as shown in the bond
register kept by the Trustee, of any notice with respect to the
Bonds, including any notice of redemption, or (iii) the payment to
any person, other than a Bondholder as shown in the bond register
kept by the Trustee, of-any amount with respect to principal of and
interest on the Bonds. The Authority and the Trustee may treat and
consider the person in whose name each Bond is registered in the
bond register kept by the Trustee as the holder and absolute owner
of such Bond for the purpose of payment of principal of and
interest with respect to such Bond, for the purpose of giving
notices of redemption and other matters with respect to such Bond,
for the purpose of registering transfers with respect to such Bond,
• and for all other purposes whatsoever, and the Authority and the
Trustee shall not be affected by notice to the contrary. The
Trustee shall pay all principal of and interest on the Bonds only
to or upon the order of the respective Bondholders, as shown in the
bond register kept by the Trustee, or their respective attorneys
duly authorized in writing, as provided in Section 2.01 hereof and
all such payments shall be valid and effective to satisfy and
discharge fully the Authority's obligations with respect to payment
of the principal of and interest on the Bonds to the extent of the
sum or sums so paid. No person other than a Bondholder, as shown
in the bond register kept by the Trustee, shall be issued a
certificate evidencing the obligation of the Authority to make
payments of principal of and interest on the Bonds.
ARTICLE III
APPLICATION OF BOND PROCEEDS
AND REQUIRED FUND DEPOSITS
Section 301. Deposit of Funds. The Authority shall
deposit with the Trustee all of the net proceeds from the sale of
the Bonds, and the Trustee shall out of such proceeds:
(a) Deposit $ to the credit of the
Construction Fund established hereby which amount includes
•
28
$ to pay the Bond Anticipation Note dated January 6,
. 1994, and issued by the Commission to pay expenses related to the
Project;
(b) Deposit $ to the Capitalized Interest
Account of the Sinking Fund established under Section 402 hereof;
and
(c) Deposit $ to the Reserve Fund
established under Section 403 hereof.
Section 302. Construction Fund. The Authority shall
establish with the Trustee and maintain throughout the period of
the acquisition, construction, and equipping of the Project a
separate fund to be known as the "South Bend Redevelopment
Authority College Football Hall of Fame Project Construction Fund"
(the "Construction Fund"), to the credit of which a deposit shall
be made as required by the provisions of Section 301 hereof. Any
moneys received by the Trustee from any source for the constructing
and equipping of the Project shall be deposited in the Construction
Fund. The moneys in the Construction Fund shall be held in trust
by the Trustee, shall be applied to the payment of the costs of the
Project except to the extent required to be transferred to the
Rebate Fund in accordance with Section 405 hereof and, pending such
application, shall be held as trust funds under this Indenture
until paid out or transferred as provided in this Section 302.
• 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.
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 as
of March 15, 1994, 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
•
29
members of the
• the character
due, together
owing.
Board of Public Works, as set forth above), stating
of the expenditure, the amount thereof, and to whom
with the statement of the creditor as to the amount
Upon the filing of the Affidavit of Project Completion,
which Affidavit of Project Completion shall be set forth on AIA
Form No. G704, the Trustee shall hold in the Construction Fund an
amount equal to one hundred fifty percent (1500 of the amount of
any disputed claims of contractors and work to be repaired as
identified in writing by the Authority to the Trustee, or, if less,
the Trustee shall hold the entire balance of the Construction Fund
and transfer the unobligated balance of the Construction Fund, if
any, to the Sinking Fund referred to in Section 402 hereof. Any
balance remaining in the Construction Fund after payment of all
disputed claims and claims for repair work 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.
Subject to the provisions of Section 408 of this
Indenture, moneys at any time on deposit in the Construction Fund
shall, by oral instruction followed promptly by a Written Request
of the Authority, be invested or reinvested by the Trustee. in
Qualified Investments maturing at such time or times so that the
• Trustee will be able to pay the costs of the Project from time to
time upon the order of the Authority as herein provided. The
Trustee shall be entitled to rely upon a schedule of anticipated
payments of construction and equipment costs approved by the
Authority in scheduling such investments. Any interest or profit
on such investments shall be credited to, and any losses on such
investments shall be charged against the Construction Fund. The
Trustee shall not be obligated to invest any moneys held by it
hereunder except as directed by the Authority, but shall as soon
as practicable inform the Authority of any amounts that remain
uninvested but are eligible for investment in Qualified
Investments. The Trustee may sell or present for redemption any
obligations so purchased whenever it shall be necessary in order
to provide moneys to meet any payment pursuant to this Section 302
and the Trustee shall not be liable or responsible for any loss
resulting from such investments.
ARTICLE IV
REVENUES AND FUNDS
Section 401. Source of Payment of Bonds. The Bonds
herein authorized and all payments to be made by the Authority
thereon and into the various Funds established under this Indenture
•
30
• are not general obligations of the Authority, but are limited
obligations payable solely from Pledged Funds.
So long as the Credit Facility is in effect with respect
to any of the Bonds, all payments of principal of, premium, if any,
and interest on the Bonds to the extent such payments are supported
by the Credit Facility (whether at Maturity or otherwise) shall be
made (except in the case of Pledged Bonds) from draws on the Credit
Facility which shall be deposited directly in the LOC Interest Sub-
account and the LOC Principal Sub-account of the Sinking Fund or
the LOC Redemption Account of the Redemption Fund, as the case may
be. Principal of, premium, if any, and interest on Pledged Bonds
may be paid from moneys other than moneys available in the LOC
Principal Sub-Account, LOC Interest Sub-Account or LOC Redemption
Account. The Trustee is hereby directed to draw amounts under the
Credit Facility at such times hereinafter set forth and pursuant
to draw requests submitted at such times so as to assure that
moneys will be available to make when due all payments of
principal, interest and premium on the Bonds prior to the
Conversion Date for such Bonds, other than Pledged Bonds.
Section 402. Sinking Fund. (a) The Authority shall
establish with the Trustee and maintain so long as any of the Bonds
are outstanding a separate fund to be known as the South Bend
Redevelopment Authority College Football Hall of Fame Sinking Fund
(the "Sinking Fund"). The Trustee shall also establish two
• separate accounts within the Sinking Fund to be known as the South
Bend Redevelopment Authority College Football Hall of Fame
Principal and Interest Account (the "Principal and Interest
Account") and the South Bend Redevelopment Authority College
Football Hall of Fame Capitalized Interest Account (the
"Capitalized Interest Account"). Within the Principal and Interest
Account, the Trustee shall establish two sub-accounts to be known
as the LOC Principal Sub-Account and the LOC Interest Sub-account.
A deposit shall be made to the Capitalized Interest Account as
required by Section 301(b) hereof. The Trustee shall deposit in
such Principal and Interest Account each rental payment received
by the Trustee pursuant to the Lease including any proceeds of
rental value.insurance which represents lease rental payments under
the Lease. Upon receipt of each succeeding rental payment, any
portion of the prior rental payment remaining after such deposit
shall be deposited by the Trustee into the Operation and Reserve
Fund.
(b) Except as provided in this Section, in Section 411,
907, 1002 hereof, moneys in the Sinking Fund shall be used solely
for the payment of interest on the Bonds when due and payment of
principal of the Bonds as the same shall become due and payable at
Maturity (or to reimburse the Credit Facility Issuer for a drawing
on the Credit Facility to make such payments). The Trustee shall
at all times maintain accurate records of deposits into the Sinking
31
Fund (including all accounts and sub-accounts thereof), and the
• sources and timing of such deposits.
interest atca WeeklyBRate oroaneAdjustablelLongdRatendthe Trustee
shall take such actions as are necessary to draw funds under the
Credit Facility in accordance with its terms on the last day of
each calendar month (or the first Business Day thereafter if such
day is not a Business Day) in an amount equal to the interest
accrued on such Bonds during such month and deposit such amount in
the LOC Interest Sub-account of the Principal and Interest Account
of the Sinking Fund. The Initial Credit Facility requires a draw
request to be submitted for such purpose by 11:00 a.m., New York,
New York, time, on the Business Day on which payment is due
thereunder. All proceeds of drawings under the Credit Facility to
pay interest on the Bonds on an Interest Payment Date shall be
deposited in the LOC Interest Sub-account and shall not be
commingled with any other moneys, but shall be held by the Trustee
as agent and bailee for the sole benefit and security. of the owners
of the Bonds (other than Pledged Bonds) bearing interest at a
Weekly Rate or an Adjustable Long Rate until applied as herein
provided.
(d) Payments of interest on Bonds (other than Pledged
Bonds) bearing interest at a Weekly Rate or an Adjustable Long Rate
shall be made from moneys on deposit in the LOC Interest Sub-
• account. Payment of interest on Pledged Bonds and any Bond after
the Conversion Date applicable to such Bond shall be made from any
moneys on deposit in the Sinking Fund other than the LOC Interest
Sub-account or the LOC Principal Sub-account. On each date on which
the Trustee receives funds under the Credit Facility to provide for
payment of interest on the Bonds, funds on deposit in the Sinking
Fund (other than in the LOC Interest Sub-account or the LOC
Principal Sub-account) shall be transferred by the Trustee to the
Credit Facility Issuer (first from the Capitalized Interest Account
until all amounts on deposit therein have been depleted and then
from the Principal and Interest Account) in the amount necessary
to reimburse the Credit Facility Issuer for the interest portion
of the draw on the Credit Facility made on such date to pay
interest on the Bonds (or the portion of such drawing, if any,
corresponding to interest if such date is also a redemption date).
In the event funds in the Sinking Fund are not sufficient to
reimburse the Credit Facility Issuer, any funds available in the
Operation and Reserve Fund first and then~in the Reserve Fund shall
be transferred to the Sinking Fund for such purpose as provided
herein. No interest shall be paid on Pledged Bonds on any date
unless and until interest shall be paid on all other Bonds due on
such date and the Credit Facility Issuer shall be reimbursed for
the draw on the Credit Facility made on such date to pay interest
on the Bonds.
32
(e) On each date on which principal is to become due on
• the Bonds (other than Pledged Bonds) bearing interest at a Weekly
Rate or an Adjustable Long Rate by Maturity (or the first Business
Day thereafter if such day is not a Business Day), the Trustee
shall draw funds under the Credit Facility in accordance with its
terms in an amount equal to the amount of principal due and payable
on such date on each Bond secured by the Credit Facility. The
Initial Credit Facility requires a draw certificate to be submitted
for such purposes by 11:00 a.m., New York, New York, time, on the
Business Day on which the payment is due thereunder. All proceeds
of drawings under the Credit Facility to pay the principal of the
Bonds upon Maturity, hereof shall be deposited in the LOC Principal
Sub-account and shall not be commingled with any other moneys, but
shall be held by the. Trustee as agent and bailee for the sole
benefit and security of the owners of Bonds (other than Pledged
Bonds) bearing interest at a Weekly Rate or an Adjustable Long Rate
until applied as provided herein.
(f) Payments of principal on Bonds (other than Pledged
Bonds) bearing interest at a Weekly Rate or an Adjustable Long Rate
shall be made from moneys on deposit in the LOC Principal Sub-
account. Payments of principal of Pledged Bonds and on any Bond
after the Conversion Date applicable to such Bond shall be made
from any moneys on deposit in the Sinking Fund other than the LOC
Principal Sub-account and the LOC Interest Sub-account. On each
date on which principal becomes due on the Bonds by Maturity, after
• payment in full of all principal due on the Bonds on such date
(other than Pledged Bonds), funds remaining on deposit in the
Sinking Fund (other than the LOC Principal Sub-account and the LOC
Interest Sub-Account) shall be transferred by the Trustee to the
Credit Facility Issuer in the amount necessary to reimburse the
Credit Facility Issuer for the principal portion of the draw on the
Credit Facility made on such date (or the Business Day prior to
such date). In the event funds in the Sinking Fund are not
sufficient to reimburse the Credit Facility Issuer, any funds
available in the Operation and Reserve Fund first and then in the
Reserve Fund shall be transferred to the Sinking Fund for such
purpose as provided herein. No principal of Pledged Bonds shall
be paid unless and until the principal of all other Bonds due on
such date shall be paid and the Credit Facility Issuer shall be
reimbursed for the principal portion of the draw on the Credit
Facility made on such date.
(g) After the Conversion Date applicable to any Bond,
no amounts shall be drawn under the Credit Facility then in effect
to provide for the payment of principal of and interest on such
Bond. After the Conversion Date applicable to any Bond, the
Trustee shall deposit in the Principal and Interest Account each
rental .payment received by the Trustee pursuant to the Lease, and
proceeds of rental value insurance which represents lease rental
payments under the Lease for the payment of principal of and
interest on the Bonds, together with any other moneys already on
• 33
deposit therein and available to make such payments. No deposit
• pursuant to this paragraph need be made to the extent that there
is a sufficient amount already on deposit in the Sinking Fund to
be applied to the next Maturity to pay interest on Bonds bearing
interest at a Fixed Rate through such payment date, in which case
such rental payment or proceeds shall be deposited into the
Operation and Reserve Fund.
(h) In lieu of mandatory Sinking Fund redemption, the
Trustee may, at the request of the Authority, purchase in the open
market an equal principal amount of Bonds of the Maturity to be
redeemed at prices not exceeding the principal amount of the Bonds
being purchased plus accrued interest. To the extent that the
Authority is acquiring Bonds which bear interest at a Weekly Rate
or an Adjustable Long Rate (other than Pledged Bonds) in lieu of
mandatory Sinking Fund redemption, such purchase price shall be
paid other than from amounts drawn on the Credit Facility. In
addition, the amount of Bonds to be redeemed on any date pursuant
to the mandatory Sinking Fund redemption schedule provided in
Section 511(e) hereof shall be reduced by the principal amount of
Bonds of such Maturity which are acquired by the Authority and
delivered to the Trustee for cancellation.
Section 403. Reserve Fund. The Authority shall
establish with the Trustee and maintain so long as any of the Bonds
are outstanding a separate fund to be known as the South Bend
• Redevelopment Authority College Football Hall of Fame Reserve Fund
(the "Reserve Fund"). A deposit shall be made to the Reserve Fund
as required by Section 301(c) hereof. Moneys on deposit in the
Reserve Fund shall not exceed the Reserve Amount. Money on deposit
in the Reserve Fund shall be used to make payment on the Bonds to
the extent money in the Sinking Fund is insufficient for such
purpose and to reimburse the Credit Facility Issuer for draws on
the Credit Facility and to pay any fees of the Credit Facility
Issuer.
Section 404. Operation and Reserve Fund. The Authority
shall establish and maintain with the Trustee a separate fund to
be known as the South Bend Redevelopment Authority College Football
Hall of Fame Operation and Reserve Fund (the "Operation and Reserve
Fund"). 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) incurred in connection
with the Project, the payment of principal, interest and redemption
premiums of the Bonds herein described upon redemption or the
purchase price of Bonds purchased as authorized by Article V or
amounts owed to the Credit Facility Issuer, 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
34
• 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
711.
On the date of issuance of the Bonds and on each February
1 thereafter, the Trustee shall, at the direction of the Authority,
establish and set aside in a separate account of the Operation and
Reserve Fund, to be known as the "Expense Account," an amount in
the judgment of the Authority, would be needed for the payment of
the necessary incidental expenses of the Authority related to the
Bonds during the following twelve-month period and such Expense
Account may be used for no other purpose, notwithstanding any other
provision of this Indenture.
In addition to any other deposit to the Operation and
Reserve Fund provided in this Indenture, the Trustee shall further
deposit such amounts thereto as the Authority may direct from funds
made available to the Authority for such purpose.
Section 405. Rebate Fund. The Authority shall establish
with the Trustee and maintain, so long as any of the Bonds are
• outstanding, a separate fund to be known as the South Bend
Redevelopment Authority College Football Hall of Fame Rebate Fund
(the "Rebate Fund"). Pursuant to the written instructions of the
Authority, the Trustee shall maintain the Rebate Fund and take such
actions as may be necessary to enable the Authority to satisfy the
requirements of Section 148(f) of the Code; 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. Such computations
shall be made or caused to be made by the Authority.
Section 406. Credit Facilitv. (a) Draws on Credit
Facilitv. During such time as a Credit Facility is in effect, the
Trustee shall draw upon the Credit Facility in accordance with its
terms in an amount which will be sufficient to pay, on the dates
provided herein, principal of, premium, if any, and interest on
Bonds (other than Pledged Bonds) bearing. interest at a Weekly Rate
or an Adjustable Long Rate, whether upon redemption, at Maturity,
or otherwise or to purchase such Bonds in lieu of redemption. In
no event shall the Trustee draw upon the Credit Facility to make
any payment of principal of Pledged Bonds or Bonds bearing interest
at a Fixed Rate or Bonds held of record by the Authority or its
nominee, or any payment of interest on any Interest Payment Date
on Bonds which as of the Record Date for such Interest Payment Date
were Pledged Bonds or Bonds bearing interest at a Fixed Rate or
_ held of record by the Authority or its nominee.
35
• The Trustee shall draw moneys under the Credit Facility
in accordance with its terms and in accordance with Section 508(c)
hereof to the extent necessary to pay to the Bondholders the
purchase price of Tendered Bonds. Immediately following each
drawing under the Credit Facility other than one to pay principal
or interest on the Bonds on an Interest Payment Date, and not as
a condition to such drawing, the Trustee shall give notice by
telecopy to the Authority that such a drawing under the Credit
Facility was made. The Trustee and the Tender Agent shall use
their best efforts to return any moneys drawn under the Credit
Facility to the Credit Facility Issuer as soon as reasonably
practicable on or after the applicable purchase date to the extent
such moneys exceed the amount necessary to pay the purchase price
of Tendered Bonds.
(b) Cancellation of Credit Facilitv. The Authority
covenants that prior to the Conversion Date of all the Bonds the
Authority will not request the Credit Facility Issuer to cancel the
Credit Facility then in effect unless it provides a Renewal Credit
Facility or an Alternate Credit Facility satisfying the
requirements hereof.
(c) Renewal Credit Facilitv. The Authority may, subject
to the provisions of the Credit Facility Agreement, at any time
arrange for the deposit with the Trustee of a Renewal Credit
• Facility in substitution for the existing Credit Facility. In
connection with such renewal, the Trustee shall receive an opinion
of counsel for the Credit Facility Issuer issuing the Renewal
Credit Facility in substantially the form of opinion of counsel for
the Initial Credit Facility Issuer delivered to the Trustee upon
the issuance of the Initial Credit Facility; however, if the
Initial Credit Facility is extended pursuant to an amendment
thereto; no such opinion shall be required. Upon the delivery of
a Renewal Credit Facility, the Trustee shall promptly give written
notice by first class mail, postage prepaid, to each owner of a
Bond bearing interest at a Weekly Rate or an Adjustable Long Rate
that a Renewal Credit Facility and Renewal Credit Facility
Agreement will secure such Bond.
(d) Alternate Credit Facilitv. The Authority may,
subject to the provisions of the Credit Facility Agreement, at any
time arrange for the deposit with the Trustee of an Alternate
Credit Facility in substitution for the existing Credit Facility.
The Alternate Credit Facility shall expire no earlier than one year
from the date of its deposit with the Trustee and, in the event any
of the Bonds bear interest at an Adjustable Long Rate for a Rate
Period extending beyond the Stated Expiration Date of such
Alternate Credit Facility, no earlier than the Credit Facility
which it replaces. In addition to all other requirements to be met
therefor, a draft of such Alternate Credit Facility, a draft of the
related Credit Facility Agreement and a draft of any supplemental
•
36
Indenture required to be executed in connection with the delivery
• of the Alternate Credit Facility, and appropriate information
concerning the entity which will issue such Alternate Credit
Facility shall be submitted by the Authority to each Rating Agency
then maintaining a rating on the Bonds entitled to the benefit of
the then effective Credit Facility. The Authority shall request
each Rating Agency to give notice, promptly confirmed in writing,
to the Trustee at least 40 days (unless a shorter time is
acceptable to the Remarketing Agent, the Trustee and DTC) prior to
the date such Alternate Credit Facility is to become effective as
to what rating the Bonds entitled to the benefit of the Alternate
Credit Facility will bear after such substitution.
The Credit Facility then in effect may be replaced by an
Alternate Credit Facility only if (i) the provisions for mandatory
tender for purchase of the Bonds described in Section 502 are
complied with, if applicable, (ii) prior to such replacement the
Authority shall have delivered to the Trustee an opinion of Bond
Counsel to the effect. that such replacement will not adversely
affect the validity or enforceability in accordance with their
terms of the Bonds or any exemption from federal income taxation
to which Interest on the Bonds would otherwise be entitled and
(iii) the Trustee shall receive an opinion of counsel for the
Credit Facility Issuer issuing the Alternate Credit Facility in
substantially the form of opinion of counsel for the Initial Credit
Facility Issuer delivered to the Trustee upon the issuance of the
• Initial Credit Facility.
Upon the delivery of an Alternate Credit Facility other
than on a Substitution Date, the Trustee shall promptly give
written notice by first class mail, postage prepaid, to each owner
of a Bond bearing interest at a Weekly Rate or an Adjustable Long
Rate that an Alternate Credit Facility and Alternate Credit
Facility Agreement will secure such Bond.
(e) Surrender of Credit Facility. If at any time there
shall have been delivered to the Trustee, in substitution for the
Credit Facility then in effect, either an Alternate Credit Facility
or a Renewal Credit Facility, then the Trustee shall accept such
Alternate Credit Facility or Renewal Credit Facility and shall
surrender the Credit Facility then in effect to the Credit Facility
Issuer which issued the Credit Facility in accordance with its
terms for cancellation as soon as such Credit Facility is no longer
required to be available to be drawn upon hereunder unless such
Renewal Credit Facility is effected through the attachment of an
exhibit or similar attachment to the prior Credit Facility as
permitted by the terms of such Credit Facility. If at any time
there shall cease to be any Bonds outstanding hereunder which have
not been converted to a Fixed Rate, the Trustee shall promptly
surrender the Credit Facility then in effect to the Credit Facility
Issuer which issued such Credit Facility in accordance with the
terms thereof and of this Indenture for cancellation. The Trustee
• 37
shall promptly surrender any Credit Facility after it expires in
• accordance with its terms.
(f) Transfer of Credit Facility. The Trustee shall not
sell, assign or otherwise transfer the Credit Facility except to
a successor Trustee hereunder and in accordance with the terms of
the Credit Facility.
(g) Terms of Initial Credit Facility. The Initial
Credit Facility shall be an irrevocable letter of credit of a
commercial bank providing for direct payments to or upon the order
of the Trustee of amounts up to (i) an amount equal to the
outstanding principal amount of the Bonds to be used (A) to pay the
principal of the Bonds, (B) to enable the Trustee or the Tender
Agent to pay the portion of the purchase price equal to the
principal amount of the Bonds delivered or deemed delivered for
purchase and not remarketed or (C) to enable the Authority to
purchase Bonds in lieu of redemption under certain circumstances,
plus ( ii ) an amount equal to ~~>~ days' accrued interest on the
Bonds (calculated at the Maximum~~~Rate based on a year of 365 days)
to be used (A) to pay interest on the Bonds or (B) to pay the
portion of the purchase price of the Bonds properly delivered or
deemed delivered for purchase equal to the accrued interest, if
any, on such Bonds. The Initial Credit Facility will otherwise be
in the form attached to the Initial Credit Facility Agreement.
• (h) Terms of Credit Facility. So long as any Bonds bear
interest at a Weekly Rate or an Adjustable Long Rate, the Authority
is required to cause to be delivered to the Trustee a Renewal
Credit Facility or Alternate Credit Facility the Interest Component
of which shall be determined using an Interest Coverage Period for
Bonds bearing interest in a particular Mode no less than the sum
of (i) with respect to Bonds bearing interest at a Weekly Rate or
an Adjustable Long Rate, ~'r~' days, plus (ii) the number of days
designated by the Remarketing Agent as the maximum number of days
the Credit Facility Issuer is allowed pursuant to the provisions
of the Credit Facility then in effect to reinstate the Credit
Facility after a drawing for interest, plus (iii) the maximum
number of days the Trustee is allowed pursuant to Section 510(c)
hereof to call the Bonds for special mandatory redemption, plus
(iv) any additional number of days then required by any Rating
Agency then maintaining a rating on the Bonds entitled to the
benefit of such Credit Facility. When a Credit Facility is in
effect, the Authority is required to maintain the Interest
Component of the Credit Facility in an amount which shall be
calculated using an Interest Coverage Rate or Rates no less than
the actual interest rates on the Bonds bearing interest at a Weekly
Rate or an Adjustable Long Rate and no less than the Interest
Coverage Rate or Rates specified by the Remarketing Agent to the
Trustee for the Bonds in each particular Mode as the maximum
interest rate at which the Remarketing Agent will remarket the
Bonds in such Mode. If any Bond is in an Adjustable Long Mode and
• 38
if the Stated Expiration Date is scheduled to occur during the
• current Rate Period therefor, the amount of the Credit Facility
must include an amount to pay the applicable premium on the Renewal
Date on which such Bond is required to be purchased pursuant to
Section 503 hereof.
In addition, each Renewal Credit Facility and Alternate
Credit Facility shall provide for payment of an amount equal to the
outstanding principal amount of the Bonds bearing interest in a
Weekly Mode or an Adjustable Long Mode.
Section 407. Redemption Fund. (a) The Authority shall
establish with the Trustee and maintain so long as any of the Bonds
are outstanding a separate fund to be known as the "South Bend
Redevelopment Authority College Football Hall of Fame Redemption
Fund" (the "Redemption Fund"). The Trustee shall also establish
a separate account within the Redemption Fund to be known as the
"LOC Redemption Account" (the "LOC Redemption Account"). In the
event of deposit with the Trustee by the Authority or any person
of moneys from any source for redeeming Bonds, except as otherwise
provided in Section 402 of this Indenture, such moneys shall be
deposited in the Redemption Fund. Moneys drawn under the Credit
Facility for payment of the principal of, premium, if any, and
interest on the Bonds upon redemption (other than redemption
pursuant to Section 510(f)(ii) hereof) shall be deposited into the
LOC Redemption Account of the Redemption Fund and shall not be
commingled with any other moneys (other than moneys in such
Account) held by the Trustee.
(b) All proceeds of drawings under the Credit Facility
to make timely redemption payments other than pursuant to
Section 510(f)(ii) shall be deposited in the LOC Redemption Account
and shall be held by the Trustee as agent and bailee for the sole
benefit and security of the Bondholders (other than the owners of
Pledged Bonds) bearing interest at a Weekly Rate or at an
Adjustable Long Rate until applied as provided herein. On or prior
to the Conversion Date with respect to any Bonds, payments of the
redemption price of such Bonds (other than Pledged Bonds) to be
redeemed pursuant to Section 510(a), (c) or (d) hereof shall be
made, to the extent available, from moneys on deposit in the LOC
Redemption Account. The redemption price of Pledged Bonds and of
any Bonds after the Conversion Date applicable to such Bonds shall
be paid from amounts deposited in the Redemption Fund (other than
the LOC Redemption Account).
(c) Moneys on deposit in the Redemption Fund shall be
used first to make up any deficiencies existing in the Sinking Fund
and second for the purchase or redemption of Bonds in accordance
with the provisions of Article V hereof; provided, however, that
moneys on deposit in the LOC Redemption Account shall not be used
to make up deficiencies in the Sinking Fund other than in the LOC
Interest Sub-account and the LOC Principal Sub-account. On any
•
39
• date on which Bonds are redeemed from amounts on deposit in the
Redemption Fund, after payment in full of the redemption price of
all Bonds redeemed on such date from amounts on deposit in the
Redemption Fund, funds remaining on deposit in the Redemption Fund
(exclusive of the LOC Redemption Account) shall be transferred by
the Trustee to the Credit Facility Issuer in the amount necessary
to reimburse the Credit Facility Issuer for the draw made on the
Credit Facility to pay such redemption price. No redemption price
of Pledged Bonds. shall be paid unless and until the redemption
price of all other Bonds due on such date shall be paid and the
Credit Facility Issuer shall be reimbursed for the draw made on the
Credit Facility to pay such redemption price.
Section 408. Investment of Funds. (a) Subject to the
limitations provided in-this Section 408, upon verbal direction
promptly followed by a Written Request of the Authority filed with
the Trustee, moneys on deposit hereunder shall only be invested in
Qualified Investments that mature so as to mature on or prior to
the date or dates that moneys therefrom are reasonably anticipated
to be required provided that moneys in the Reserve Fund may be
invested in investments not in excess of five (5) years. As and
when any amounts invested pursuant to this Indenture may be needed
for disbursements from the Sinking Fund, the Trustee shall cause
a sufficient amount of such investments to be sold or otherwise
converted into cash to the credit of such Fund. The Trustee, may
trade with itself in the purchase and sale of securities for such
• investment; provided, however, that in no case shall any investment
be otherwise than in accordance with the investment limitations
contained herein. The Trustee shall not be liable or responsible
for any loss resulting from any such investments. Gains from
investments shall be credited to and held in and losses shall be
charged to the fund or account from which the investment is made.
(b) Investment income from the funds and accounts and
subaccounts therein specified in subsection (a) of this Section
which was derived either from the proceedsof Bonds issued to
finance the Project or from moneys otherwise deposited in such
funds in connection with the issuance of such Bonds shall be
credited to the fund and accounts and subaccounts therein from
which the investments were made; provided however, that investment
income from the Reserve Fund shall be deposited into the
Capitalized Interest Account of the Sinking Fund until May 31,
1996. Thereafter, such investment income from the Reserve Fund
shall be credited to the Principal and~Interest Account of the
Sinking Fund.
Section 409. Non-Presentment of Tendered Bonds. In the
event any Tendered Bonds shall not be presented for purchase and
moneys sufficient to pay the purchase price of such Tendered Bonds
are held in the Bond Purchase Fund, the Tender Agent shall
segregate and hold such moneys in trust (but shall not invest such
moneys), without liability for interest thereon, for the benefit
•
40
of the holders of such Tendered Bonds who shall, except as provided
in the last paragraph of Section 412 hereof, thereafter be
restricted exclusively to such moneys, for the satisfaction of any
claim of whatever nature on their part under this Indenture or on,
or with respect to, said Tendered Bonds.
Section 410. Trust Funds. All moneys received by the
Trustee under any provision hereof shall be held by the Trustee in
trust, and such moneys (other than moneys held in the Bond Purchase
Fund, the Rebate Fund or pursuant to Section 412 hereof) shall,
while so held, constitute part of the. trust estate and be subject
to the lien hereof, and shall not be subject to the lien or
attachment of any creditor of the Authority.
Section 411. Excluded Funds; Transfers to Rebate Fund.
The foregoing provisions of this Article IV notwithstanding,
(a) the Bond Purchase Fund and the Rebate Fund shall not be
considered a part of the "trust estate" created by this Indenture
and (b) the Trustee shall be permitted to transfer moneys on
deposit in any of the trust funds established under this Indenture
to the Rebate Fund in accordance with the provisions of Section 405
contained herein.
Section 412. Bond Purchase Fund. The Trustee shall
cause the Tender Agent to establish and maintain, so long as any
Bonds are outstanding which have not been converted to a Fixed
• Rate, a separate fund to be known as the "South Bend Redevelopment
Authority College Football Hall of Fame Bond Purchase Fund" (the
"Bond Purchase Fund"). There shall be deposited into the Bond
Purchase Fund from time to time the following:
(a) the price received upon the remarketing of Tendered
Bonds to any Person pursuant to the Remarketing Agreement;
(b) the price received from the underwriter or purchaser
(other than the Authority) of Tendered Bonds upon the conversion
of the interest rate thereon to a Fixed Rate;
(c) moneys obtained by the Trustee or the Tender Agent
as a result of a draw on the Credit. Facility then in effect to be
applied to pay the purchase price of Tendered Bonds; and
(d) Moneys from the Authority to the extent that moneys
obtained pursuant to (a), (b) or (c) above are insufficient on any
date to pay the purchase price of Tendered Bonds.
Moneys in the Bond Purchase Fund shall be held
exclusively for the payment of the purchase price of Tendered
Bonds. Amounts held to pay the purchase price for more than three
years shall be applied in the same manner as provided under
Section 1409 hereof with respect to unclaimed payments of principal
and interest.
• 41
Section 413. Set-Asides Pursuant to Pledge Resolution.
(a) In accordance with the Pledge Resolution, the
Authority, at the direction of the Commission, may instruct the
Trustee to set aside from the Capitalized Interest Account of the
Sinking Fund, the Reserve Fund and the Operation and Reserve Fund
an amount (a "segregated amount") that, when combined with other
available funds of the Commission, enables the Commission to
satisfy the Three Payment Test (as defined in the Pledge
Resolution). The segregated amount shall be held in trust solely
for purposes of ensuring the availability of funds to satisfy the
Three Payment Test.
(b) If the Authority, at the direction of the
Commission, so directs, the Trustee shall transfer all or a portion
of such segregated amount to the Sinking Fund, on the due date of
a lease payment under the Lease, in the event that the Authority,
at the direction of the Commission, determines to have part or all
of such Lease payment otherwise due credited from such segregated
amount as provided in the Lease; provided, however, that if and to
the extent the Commission determines that such credit shall not be
applied to a Lease payment for which funds have been so segregated
as provided above, but instead pays such amount on the Lease
payment date, then an equal amount shall be released immediately
from such segregation and shall no longer constitute a segregated
• amount.
ARTICLE V
PURCHASE OF BONDS; REDEMPTION OF BONDS
Section 501. Purchase on Demand of Owner While Bonds
Bear Weekly Rate. While any Bond bears interest at a Weekly Rate,
any such Bond or portion thereof in an Authorized Denomination
(other than a Pledged Bond) shall be purchased on a Demand Date
therefor upon the demand of the owner thereof, at a purchase price
equal to 100% of the principal amount thereof plus accrued
interest, if any, to such Demand-Date, upon irrevocable written
notice (which may be given by telecopy) to the Tender Agent at its
Principal Office, which notice must be received by the Tender Agent
not later than 11:00 a.m., New York City time, in order to be
effective on that day and which notice must specify (i) the
principal amount and number of such Bond, the name and the address
of such owner and the taxpayer identification number, if any, of
such owner and (ii) the Demand Date on which such Bond is to be
purchased. The determination of the Tender Agent as to whether a
notice of tender has been properly delivered pursuant to the
foregoing shall be conclusive and binding upon the owner of such
Bond. Any notice received by the Tender Agent pursuant to this
Section 501 from any Person reasonably believed by the Tender Agent
•
42
to be the owner of a Bond maybe conclusively relied upon by the
Tender Agent as a true, irrevocable notice of demand with respect
to such Bond. The Tender Agent shall immediately give telephonic
notice (subsequently confirmed in writing) to the Trustee, the
Remarketing Agent, the Authority and the Credit Facility Issuer as
to the contents of any such notices received by it.
Section 502. Purchase on Substitution Date. On any
Substitution Date with respect to a Bond bearing interest at a
Weekly Rate or an Adjustable Long Rate (other than a Pledged Bond),
such Bond shall be purchased at a purchase price equal to 100% of
the principal amount thereof plus accrued interest, if any. The
owner of such Bond may not elect to retain its Bond.
The Authority shall give the Trustee, the Tender Agent,
and the Remarketing Agent Immediate Notice promptly following
receipt of the Rating Decline Notice, stating the rating, if any,
specified in such Rating Decline Notice. The Trustee shall furnish
Immediate Notice to the owners of Bonds bearing interest at a
Weekly Rate or an Adjustable Long Rate (other than Pledged Bonds)
not later than the tenth day next preceding the Substitution Date
indicating that (i) the then effective Credit Facility is being
replaced by such Alternate Credit Facility, (ii) a Rating Decline
Notice has been received and (iii) such Bonds are required to be
purchased by the Tender Agent on the Substitution Date specified
in such Immediate Notice.
• Section 503. Purchase on a Renew
al Date if No Renewal
Credit Facility or Alternate Credit Facility is in Place and
Special Mandatory Purchase. (a) If by the tenth day preceding any
Renewal Date, the Trustee has not received a Renewal Credit
Facility or Alternate Credit Facility complying with the provisions
of Section 406 hereof, all Bonds (other than Pledged Bonds and
Bonds bearing interest at a Fixed Rate) shall be purchased on the
Renewal Date pursuant to this Section 503 at a purchase price for
each such Bond equal to (a) the optional redemption price for such
Bond set forth in Section 510(a) hereof or, (b) if the purchase
described in this Section 503 will occur during the No-Call Period
for such Bond, 103% of the principal amount thereof plus accrued
interest, if any, to the Renewal Date. The owner of such Bond may
not elect to retain its Bond.
Not later than the tenth day next preceding the Renewal
Date, if no such Renewal Credit Facility or Alternate Credit
Facility has been delivered, the Trustee shall give notice by mail
to the owners of such Bonds stating (i) the Renewal Date and that
no Renewal Credit Facility or Alternate Credit Facility has been
received by the Trustee and (ii) that such Bonds are required to
be purchased on the Renewal Date.
(b) Special Mandatory Purchase. The Bonds outstanding
under this Indenture bearing interest at other than a Fixed Rate
•
43
shall be subject to purchase at any time prior to the Conversion
Date for such Bonds: (i) if the Trustee receives written notice
from the Credit Facility Issuer of the occurrence of a default
under the Credit Facility Agreement and that the Credit Facility
shall be terminated as set forth in the notice or (ii) if the
Trustee receives notice from the Credit Facility Issuer within the
applicable period specified in the Credit Facility that the Credit
Facility Issuer is not reinstating the Credit Facility following
a drawing under the Credit Facility to pay interest on the Bonds,
to the amount available thereunder immediately prior to such
drawing less any reduction resulting from the payment of principal
on the Bonds entitled to the benefits of the Credit Facility;
provided, however, that Bonds will not be purchased to the extent
that such Bonds have been declared due and payable pursuant to
Section 903 hereof. The purchase price for each Bond shall be
equal to 100% of the principal amount thereof plus interest accrued
thereon to the date fixed for purchase. The Trustee shall
establish a purchase date at least five days prior to the
termination of the Credit Facility, but in no event more than five
days after the notice of a default under the Credit Facility
Agreement or of a determination of a Credit Facility Issuer not to
reinstate the Credit Facility shall have been received by the
Trustee.
Section 504. Purchase While Bonds Bear Adjustable Lona
Rate. While any Bond bears interest at an Adjustable Long Rate,
• such Bond (other than a Pledged Bond) shall be purchased pursuant
to this Section 504 on each Rate Change Date within an Adjustable
Long Mode for such Bond, other than the Rate Change Date which is
the first day of an Adjustable Long Mode applicable to such Bond,
and on the Adjustment Date immediately following the last day of
such Adjustable Long Mode at a purchase price equal to 100% of the
principal amount thereof. The owner of such Bond may not elect to
retain its Bond.
Not later than the tenth day next preceding such Rate
Change Date for each Rate Period exceeding 366 days in duration,
the Trustee shall give notice by first class mail to the owners of
the Bonds stating (i) the last day of the Rate Period then ending
and (ii) that the Bonds are required to be purchased on such Rate
Change Date.
Section 505. Purchase on any Adjustment Date. On each
Adjustment Date with respect to a Bond, including, without
limitation, a proposed Conversion Date, such Bond shall be
purchased pursuant to this Section 505 at a purchase price equal
to 100% of the principal amount thereof, except that a Bond which
is to be purchased on an Adjustment Date which immediately follows
the last day of an Adjustable Long Mode shall be purchased pursuant
to Section 505 hereof. The owner of such Bond may not elect to
retain its Bond.
44
• Not later than the tenth day next preceding the
Adjustment Date for any Bond bearing interest at a Weekly Rate, the
Trustee shall give notice by first class mail to the owner of such
Bond stating (i) the last day of the Adjustment Period then ending
and (ii) that such Bond is required to be purchased on the
Adjustment Date. The foregoing notwithstanding, the failure of the
Trustee to give such notice or cause such notice to be given will
not relieve such owners of the requirement to tender their Bonds
for purchase. If sufficient moneys are on deposit with the Trustee
on the applicable Adjustment Date to purchase such Bonds at the
repurchase price therefor, such Bonds shall not, after the
applicable Rate Change Date, bear interest, be protected by the
Indenture or be deemed to be outstanding.
Section 506. Purchase of Tendered Bonds Delivered to the
Tender Agent; Notices. (a) Tendered Bonds shall be purchased from
the owners thereof at a purchase price equal to 100% of the
principal amount thereof (plus accrued interest thereon and
premium, if any) but solely from the following sources in order of
priority indicated, neither the Authority, the Trustee, the
Remarketing Agent nor the Tender Agent having an obligation to use
funds from any other source:
(i) Proceeds of the sale of such Tendered Bonds;
(ii) Moneys furnished to the Trustee or the Tender Agent
• representing moneys drawn under the Credit Facility for the
purchase of Tendered Bonds;
(iii) Moneys which are I'aad~shAcjeh~Z fhe ~uthha~tyofoTthde~'edsBeade~ the
(iv) Upon the occurrencen~ndtk~entiumna~y~efu~n~hd~dr~t trb~ie imltit~eteuhtier,
Trustee or the Tender Agent for the purchase of Tendered Bonds.
(b) On written request of the Authority, the Trustee,
the Remarketing Agent or the Credit Facility Issuer, the Tender
Agent shall give to the party requesting the same written summaries
of the actions involving Tendered Bonds.
(c) The Tender Agent shall pay the purchase price
specified above from the sources specified above of each Tendered
Bond to the registered owner thereof by 3:00 p.m., New York City
time, on the purchase date, provided that the Trustee shall have
confirmed that such registered owner has delivered such Tendered
Bond (with any necessary endorsements) to the Principal Office of
the Tender Agent by 10:00 a.m., New York City time, on such date.
Section 507. Remarketina of Tendered Bonds by
Remarketing Agent. Upon the delivery or deemed delivery of
Tendered Bonds by any owners thereof in accordance with the
provisions hereof, the Remarketing Agent shall offer for sale and
use its best efforts to remarket such Tendered Bonds, any-such
•
45
• remarketing to be made on the .date on which such Tendered Bonds are
to be purchased, at a price equal to 100 of the principal amount
thereof plus accrued interest, if any. The Remarketing Agent shall
inform the Tender Agent and the Trustee in writing (which may be
by telecopy) no later than 11:00 a.m., New York City time, on such
date of the aggregate principal amount of Tendered Bonds remarketed
on such date, and shall deliver any proceeds of the remarketing to
the Tender Agent for deposit to the Bond Purchase Fund.
With respect to Bonds delivered or deemed delivered for
purchase under Section 501 hereof, the Remarketing Agent shall use
its best efforts to give telephonic notice to the Trustee, the
Tender Agent, the Authority and the Credit Facility Issuer no later
than 10:30 a.m., New York City time, on the date of such delivery
or deemed delivery, of the aggregate principal amount of such Bonds
to be purchased on such date which it has reasonable ,grounds to
expect will not be remarketed on such date. .With respect to Bonds
delivered or deemed delivered for purchase under Section 502, 503,
504 or 505 hereof, the Remarketing Agent shall use its best efforts
to give telephonic notice to the Trustee, the Tender Agent, the
Authority and the Credit Facility Issuer no later than 3:00 p.m.,
New York City time, on the Business Day next preceding any day on
which Bonds are so delivered or deemed delivered if it has
reasonable grounds to expect that any such Bonds will not be
remarketed on such date.
• The Remarketing Agent shall remarket any Pledged Bonds
to the extent and subject to the conditions set forth herein, in
the Remarketing Agreement and in the Credit Facility Agreement.
Upon the remarketing of Pledged Bonds, the Remarketing Agent shall
immediately provide telephonic notice, promptly followed by
telecopy, of such remarketing to the Trustee, the Tender Agent, the
Authority and the Credit Facility Issuer, and thereupon the Tender
Agent (in its capacity as custodian under the Pledge Agreement) or
the Credit Facility Issuer, whichever has possession of such
Pledged Bonds, shall, subject to Section 508(a)(ii) hereof,
immediately deliver such Bonds to the Tender Agent for delivery to
the purchasers thereof.
In addition to all other requirements to be met before
the remarketing of Pledged Bonds, if the Pledged Bonds have been
pledged as a result of the purchase of Bonds pursuant to
Section 503 hereof on a Renewal Date, the Remarketing Agent shall
not remarket any such Pledged Bonds unless the conditions of
Section 406 hereof have been satisfied with respect to the delivery
of a Renewal Credit Facility or an Alternate Credit Facility.
Section 508. Delivery of Bonds• Delivery of Proceeds of
Sale; Payments from Credit Facility.
(a)(i) Subject to Section 509 hereof, Bonds remarketed
by the Remarketing Agent pursuant to Section 507 hereof shall be
•
46
delivered by the Trustee or the Tender Agent as directed by the
• purchasers thereof by 2:00 p.m., New York City time, on the date
of purchase.
(ii) Pledged Bonds shall be delivered to the Trustee (in
its capacity as custodian under the Pledge Agreement) or otherwise
at the direction of the Credit Facility Issuer pursuant to the
Pledge Agreement. Notwithstanding anything herein to the contrary,
if the Trustee holds Pledged Bonds as custodian for the Credit
Facility Issuer pursuant to the Pledge Agreement, the Trustee shall
not release to the purchaser thereof Pledged Bonds remarketed
pursuant to Section 507 hereof except in accordance with the
provisions regarding such release in the Pledge Agreement.
(b) Tendered Bonds delivered as provided in this
Section 508 shall be registered in the manner directed by the
purchaser thereof, except that Pledged Bonds shall be registered
in the manner directed by the Credit Facility Issuer.
(c) The Tender Agent (if other than the Trustee) shall
notify the Trustee in writing (which may be delivered by telecopy)
no later than a.m., New York, New York time, on each day on
which Tendered Bonds are delivered or deemed delivered for purchase
of the aggregate principal amount of Tendered Bonds to be purchased
on such date and of the aggregate amount of moneys which the Tender
Agent (if other than the Trustee) has received pursuant to
• Section 506(a)(i) hereof to make such purchase. The Trustee shall
take such actions as are necessary to draw under the Credit
Facility in accordance with its terms to the extent necessary,
after taking into account moneys in its possession pursuant to
Section 506(a)(i), to pay the purchase price of all Tendered Bonds
on such date. The Initial Credit Facility requires a draw request
to be submitted for such purpose by a.m., New York, New York
time, on the Business Day payment is due thereunder. If the
Trustee has not received notice of the amount of the proceeds of
the remarketing from the Remarketing Agent by the time necessary
to draw on the Credit Facility, the Trustee shall draw on the
Credit Facility in an amount sufficient to pay the purchase price
of any Tendered Bonds.
Section 509. No Purchases, Sales or Remarketing After
Certain Defaults. Anything in this Indenture to the contrary
notwithstanding, (a) if at any time there is no Credit Facility in
effect, there shall be no purchases, sales or remarketing of Bonds
pursuant to Section 501, 502, 503, 504 or 505, hereof, (b) in no
event shall Pledged Bonds be remarketed prior to the reinstatement
of the amount of principal of and interest, if any, paid on such
Tendered Bonds pursuant to a drawing under the Credit Facility and
(c) at any time during which the Credit Facility is in effect,
there shall be no remarketing of Tendered Bonds pursuant to
Section 507 hereof, if there shall have occurred and be continuing
an Event of Default described in Section 902 (a), (b), (c) or (d)
• 4
7
r
(ii)
•
•
hereof of which an authorized officer in the Principal Office of
the Trustee or an authorized officer in the Principal Office of the
Tender Agent has actual knowledge.
Section 510. Redemption Dates and Prices. The Bonds
shall be subject to redemption prior to Maturity in the amounts,
at the times and in the manner provided in this Section 510.
(a) Optional Redemption.
(i) Any Bonds operating in a Weekly Mode shall be
subject to redemption prior to Maturity at the option of the
Authority from moneys on deposit in the LOC Redemption Account of
the Redemption Fund, in whole or in part (and if in part in an
Authorized Denomination) on any Business Day during such Weekly
Mode, at a redemption price equal to 100% of the principal amount
thereof plus accrued interest, if any, to the redemption date.
Any Bond operatingredempt~di}us~die B:ongM~itidei~~aalr3u~c~u Rete
Period therein at the option of the Authority from moneys on
deposit in the LOC Redemption Account of the Redemption Fund, in
whole on any Business Day or in part (and if in part in an
Authorized Denomination) on any Interest Payment Date applicable
to such Bond after the No-Call Period described below, at the
following redemption prices (expressed as percentages of the
principal amount of Bonds called for redemption) plus accrued
interest to the date fixed for redemption:
The Authority may deliver to the Trustee an alternative
redemption schedule to the schedule shown above, provided that the
Authority delivers to the Trustee and the Credit Facility Issuer
an Opinion of Bond Counsel to the effect that the alternative
schedule of redemption will not adversely affect the validity and
enforceability of the Bonds in accordance with their terms and will
not have an adverse effect on any exemption from federal income
taxation to which the interest on the Bonds would otherwise be
entitled. After the first Rate Change Date succeeding the delivery
of such alternative schedule and opinion, Bonds operating in an
48
Lenath of Rate Period No-Call Period Redemption Price
•
•
Adjustable Long Mode shall be subject to redemption pursuant to the
terms of such alternative schedule.
While any Bonds bear interest at an Adjustable Long Rate,
the Authority may only cause a redemption of such Bonds pursuant
to this subsection (a)(ii) which would require a payment of a
premium if on the date of the giving of notice of redemption the
Trustee can draw under the Credit Facility in an amount sufficient
to pay such premium due on the .date of redemption.
(iii) Any Bond bearing interest at a Fixed Rate shall
be subject to redemption prior to Maturity at the option at the
Authority., out of amounts deposited in the Redemption Fund, in
whole on any Business Day or in part (and if in part in an
Authorized Denomination) on any Interest Payment Date applicable
to such Bond after the No-Call Period described below, at the
following redemption prices (expressed as percentages of the
principal amount of the Bonds called for redemption) plus accrued
Interest to the date fixed for redemption:
The Authority may deliver to the Trustee an alternative
redemption schedule to the schedule shown above, provided that the
Authority delivers to the Trustee an Opinion of Bond Counsel to the
effect that the alternative schedule of redemption will not
adversely affect the validity and enforceability of the Bonds in
accordance with their terms and will not have an adverse effect on
any exemption from federal income taxation to which the Interest
on the Bonds would otherwise be entitled. After the first Rate
Change Date succeeding the delivery of such alternative schedule
and opinion, Bonds operating in an Adjustable Long Mode shall be
subject to redemption pursuant to the terms of such alternative
schedule.
(iv) Any Bond bearing, interest at an Adjustable Long
Rate shall be subject to optional redemption prior to Maturity at
the option of the Authority from moneys on deposit in the LOC
Redemption Account of the Redemption Fund, in whole or in part (and
if in part in an Authorized Denomination) on any Rate Change Date
49
Term to Maturity No-Call Period Redemption Price
therefor, at a redemption price equal to 100% of the principal
• amount thereof.
(b) Special Optional Redemption. Any Bonds which are
Pledged Bonds shall be subject to redemption in whole or in part
(in an Authorized Denomination) prior to Maturity at the option of
the Authority out of amounts deposited in the Redemption Fund other
than the LOC Redemption Sub-account, in whole or in part (and if
in part in an Authorized Denomination) on any Business Day while
such Bonds are Pledged Bonds at a redemption price equal to 100%
of the principal amount thereof plus accrued Interest, if any, to
the redemption date.
(c) Mandatory Redemption Upon the Occurrence of Certain
Extraordinary or Catastrophic Events. The Bonds are subject to
mandatory redemption prior to Maturity by the Authority in whole
or in part prior to maturity in connection with the receipt of
proceeds of insurance as described in Section 802 hereof. On the
redemption date, the Trustee shall draw funds under the Credit
Facility in an amount which is equal to the principal of and
accrued interest on all Bonds outstanding which are entitled to the
benefit of the Credit Facility and shall deposit such moneys in the
LOC Redemption Account of the Redemption Fund in accordance with
Sections 406 and 407 hereof.
(d) General Provisions Regarding Optional Special
• O tional Mandator and S ecial Mandator Redem tions.
(i) No redemption of less than all of the Bonds
outstanding shall be made pursuant to Section 510(a), 510(b)
or 510(c) hereof unless (i) if such redemption is of Bonds bearing
Interest at a Weekly Rate or an Adjustable Long Rate, the aggregate
principal amount of Bonds to be redeemed is equal to $100,000 or
integral multiples thereof, and (ii) if such redemption is of Bonds
bearing interest at a Fixed Rate, the aggregate principal amount
of Bonds to be redeemed is equal to $100,000 or $5,000 multiples
in excess thereof. Any redemption of less than all of the Bonds
outstanding shall be made first from Pledged Bonds. Any redemption
of less than all of the Bonds outstanding shall be made in such a
manner that all Bonds outstanding after such redemption are in
Authorized Denominations.
(ii) Bonds may be called for redemption by the Trustee
pursuant to Section 510(a) or (c) hereof•(A) in the case of Bonds
bearing interest at a Weekly Rate or an Adjustable Long Rate for
a Rate Period of 366 days or less, upon receipt by the Trustee at
least 30 days prior to the redemption date of a Written Request of
the Authority requesting such redemption or (B) in the case of
Bonds bearing interest at an Adjustable Long Rate for a Rate Period
in excess of 366 days or a Fixed Rate, upon receipt by the Trustee
at least 45 days prior to the redemption date of a Written Request
of the Authority requesting such redemption which Written Request
• 50
• shall specify the principal amount of the Bonds so to be called for
redemption, the applicable redemption price or prices and the
provision or provisions specified in this Section 510 pursuant to
which such Bonds are to be called for redemption.
(iii) Bonds may be called for redemption by the Trustee
pursuant to Section 510(b) hereof upon receipt by the Trustee at
least one Business Day prior to the redemption date of a Written
Request of the Authority requesting such redemption.
(iv) In lieu of redeeming Bonds pursuant to
Section 510(a), 510(c) or 510(e) hereof, the Trustee may, at the
request of the Authority, use such funds otherwise available
hereunder for redemption of Bonds to purchase Bonds in the open
market at a price not exceeding the redemption price then
applicable hereunder; provided, however, that the conditions to
redeem Bonds provided in Section 510 (d) hereof shall be met and
that with respect to Bonds bearing interest at a Weekly Rate or an
Adjustable Long Rate, the purchase price for such Bonds shall only
be paid from draws on the Credit Facility or other moneys. Any
Bonds so purchased in lieu of redemption shall be delivered to the
Trustee for cancellation and shall be cancelled, all as provided
in Section 210 hereof. It is understood that in the case of any
optional or extraordinary redemption or purchase and cancellation
of Bonds, the Authority shall receive credit against its required
Sinking Fund deposits with respect to the Bonds of the Maturity
• redeemed or purchased and with respect to Bonds which have not been
assigned to a particular mandatory Sinking Fund redemption date
pursuant to Section 510(e)(ii) hereof, in such order as the
Authority shall designate prior to the redemption or purchase and
cancellation or, if no such election is made prior to such
redemption or purchase and cancellation, in the inverse order
thereof; provided, however, that following such reduction each such
mandatory Sinking Fund redemption payment is made in integral
multiples of an Authorized Denomination.
(v) The Trustee shall on each such day on which Bonds
bearing interest at a Weekly Rate or an Adjustable Long Rate are
to be optionally redeemed in accordance with section 510(a) hereof
take such actions as are necessary to draw funds under the Credit
Facility on each such day in (i) an amount equal to the principal
amount of such Bonds (other than Pledged Bonds) bearing interest
at a Weekly Rate or at the Adjustable Long Rate to be so redeemed,
(ii) an amount equal to the amount of interest due and owing on
such Bonds (other than Pledged Bonds) bearing Interest at a Weekly
Rate or at an Adjustable Long Rate to be redeemed to the redemption
date and (iii) an amount equal to the premium, if any, due and
owing on such Bonds to be so redeemed. The Initial Credit Facility
requires a draw request to be submitted for such purpose by
11:00 a.m., New York, New York, time, on the Business Day payment
is due.
~J
51
(e) Sinking Fund Deposits--Mandatory Deposits.
(i) With respect to the payment of Bonds on Maturity or
by mandatory Sinking Fund redemption through the Sinking Fund, the
Authority shall have on deposit in the Sinking Fund (A) if and to
the extent prior to the Conversion Date with respect to a Bond, on
the first Business Day occurring on or after February 1, 2005, and
on the first Business Day occurring on or after each February 1
thereafter, to and including February 1, 2019, or (B) if and to the
extent subsequent to the Conversion Date with respect to a Bond,
on February 1 of each year occurring on or after such Conversion
Date, to and including February 1, 2019 and (C) on February 1,
2019, moneys in the amounts and at the times, respectively, as
follows:
February 1 Principal February 1 Principal
of the Year Amount of the Year Amount
provided, that such amounts shall be reduced (I) by the amount of
Bonds acquired and delivered in accordance with Section 404(h)
hereof in satisfaction of such Sinking Fund requirements, and
• (II) in connection with a partial .redemption of Bonds if the
Authority elects to reduce mandatory Sinking Fund redemptions for
the Bonds in the manner provided in Section 510(d)(iv) hereof.
Moneys on deposit in the Sinking Fund on February 1 (or, with
respect to Bonds bearing interest at a Weekly Rate or an Adjustable
Long Rate, the first Business Day thereafter) of each of the years
through shall be applied to the redemption of Bonds
selected as provided in Section 513 hereof on to reimburse the
Credit Facility Issuer and moneys on deposit in the Sinking Fund
on February 1, 2019, shall be applied to the payment of the Bonds
maturing on such date. Payment or redemption of the Bonds through
the Sinking Fund shall be without premium. The Bonds shall be
redeemed by the Trustee pursuant to the provisions of this
paragraph without any notice from or direction by the Authority.
(ii) Prior to each conversion of any or all of the Bonds
to a Fixed Rate pursuant to Section 603 hereof, the Trustee shall
determine, as set forth below, the Bonds to be converted to a Fixed
Rate which will be redeemed or mature on each mandatory Sinking
Fund redemption date or maturity date or paid on February 1, 2019,
pursuant to the schedule set forth in subparagraph (e)(i) of this
Section 510 so as to facilitate the remarketing of such Bonds on
the Conversion Date therefor at various Fixed Rates reflecting the
various terms to Maturity of the Bonds to be so converted. Unless
the Authority agrees to another method and there is delivered to
• the Trustee an Opinion of Bond Counsel to the effect that
52
• utilization of such other method will not adversely affect the
validity or enforceability in accordance with their terms of any
Bonds or any exemption from federal income taxation to which the
interest on the Bonds would otherwise be entitled, the Bonds to be
converted shall be assigned to the dates set forth in the schedule
in Section 510(e)(i) in the inverse order thereof.
Section 511. Notice of Redemption. (a) Except as
hereinafter provided, a copy of the notice of the call for any
redemption identifying the Bonds to be redeemed shall be given by
first class mail, postage prepaid, with respect to Bonds bearing
interest at a Weekly Rate or an Adjustable Long Rate for a Rate
Period of 366 days or less, not less than 10 days and not more than
30 days prior to the date fixed for redemption and, with respect
to Bonds bearing interest at an Adjustable Long Rate for a Rate
Period in excess of 366 days or a Fixed Rate, not less than 30 nor
more than 60 days prior to the date fixed for redemption, to-the
registered owners of Bonds to be redeemed at their addresses as
shown on the Bond Register. Such notice shall specify the
redemption date, the redemption price, the place and manner of
payment and that from the redemption date interest will cease to
accrue on the Bonds which are the subject of such notice and shall
include such other information as the Trustee shall deem
appropriate or necessary at the time such notice is given to comply
with any applicable law, regulation or industry standard. Except
for mandatory Sinking Fund. redemptions or any redemption to be paid
• with the proceeds of a draw on the Credit Facility, prior to the
date that the redemption notice is first given as aforesaid, funds
shall be placed with the Trustee to pay such Bonds and accrued
interest thereon to the redemption date or to reimburse the Credit
Facility Issuer. in connection therewith. Prior to the time at
which all Bonds bear interest at Fixed Rates, Immediate Notice of
any such redemption shall also be given to the Remarketing Agent
promptly following the giving of notice to the Bondholders as
aforesaid.
(b) Notwithstanding Section 511(a) hereof, if the Bonds
are to be redeemed pursuant to Section 510(b) hereof, the Trustee
shall give Immediate Notice to the Credit Facility Issuer upon
receipt of the Written Request of the Authority.
(d) Failure to give notice in the manner prescribed
hereunder with respect to any Bond, or any defect in such notice,
shall not affect the validity of the proceedings for redemption for
any Bond with respect to which notice was properly given. Upon the
happening of the above conditions and if sufficient moneys are on
deposit with the Trustee on the applicable redemption date to
redeem the Bonds to be redeemed and to pay interest due thereon and
premium, if any, the Bonds thus called shall not after the
applicable redemption date bear interest, be protected by this
Indenture or be deemed to be outstanding under the provisions of
this Indenture.
•
53
• (e) If any Bond is transferred or exchanged on the Bond
Register by the Bond Registrar after notice has been given calling
such Bond for redemption, the Trustee will attach a copy of such
notice to the Bond issued in connection with such transfer or
exchange.
Section 512. No__ Partial Redemption After Default.
Anything in this Indenture to the contrary notwithstanding, if
there shall have occurred and be continuing an Event of Default of
which an officer of the Trustee has actual knowledge, there shall
be no redemption of less than all of the Bonds at the time
outstanding.
Section 513. Selection of Bonds To Be Redeemed. If less
than all the Bonds shall be called for redemption under any
provision of this Indenture permitting such partial redemption, the
particular Bonds or portions 'thereof to be redeemed shall be
selected by the Trustee, in the principal amount designated to the
Trustee by the Authority or otherwise as required by this
Indenture; ,provided, however, that (i) Pledged Bonds shall be
redeemed first; (ii) in the case of the redemption of less than all
Bonds which bear interest at the same rates for the same Rate
Periods, such redemption shall be by lot in such manner as the
Trustee may determine among such Bonds; (iii) in the case of the
mandatory Sinking Fund redemption of Bonds which have been assigned
• to a particular mandatory Sinking Fund redemption date pursuant to
Section 510(e)(ii) hereof, such Bonds shall be redeemed on the
designated dates; and (iv) subject to other applicable provisions
of this Indenture, the portion of any Bond to be redeemed shall be
in a principal amount equal to an Authorized Denomination. In
selecting Bonds for redemption, the Trustee shall treat each Bond
as representing that number of Bonds which is obtained by dividing
the principal amount of such Bond by the minimum Authorized
Denomination. If it is determined that one or more, but not all,
of the integral multiples of the Authorized Denomination of
principal amount represented by any Bond is to be called for
redemption, then, upon notice of intention to redeem such integral
multiple of an Authorized Denomination, the owner of such Bond
shall forthwith surrender such Bond to the Trustee for (a) payment
to such owner of the redemption price of the integral multiple of
the Authorized Denomination of principal amount called for
redemption and (b) delivery to such owner of a new Bond or Bonds
in the aggregate principal amount of the unredeemed balance of the
principal amount of such Bond. New Bonds representing the
unredeemed balance of the principal amount of such Bond shall be
issued to the registered owner thereof without charge therefor.
Section 514. Limit on Remarketinct. (a) Any Bond
purchased pursuant to Section 501, 502, 503, 504 or 505 of this
Indenture from the date notice is given of redemption of such Bond
pursuant to Section 511 hereof through the date for such redemption
•
54
or from the date of notice of mandatory purchase of such Bond
• pursuant to Section 502, 503, 504 or 505 hereof through the date
for such mandatory purchase shall not be remarketed except to a
buyer who has been notified at the time of such purchase of the
requirement to deliver such Bond for redemption or purchase to the
Trustee on the redemption or purchase date.
(b) No Rate Period shall be established during an
Adjustable Long Mode and no Weekly Mode shall be established which
would cause the Interest Coverage Period of the Credit Facility to
be less than. the requirements of Section 406(h) hereof. No
interest rate on a Bond shall be established during a Weekly Mode
or an Adjustable Long Mode which exceeds the Interest Coverage Rate
for such .Mode. No Rate Period shall be established during an
Adjustable Long Mode extending beyond the Renewal Date unless the
Credit Facility, includes an amount sufficient to pay the applicable
premium on the Renewal Date.
ARTICLE VI
MODE CONVERSION
Section 601. Authority for and Conditions to Conversion
to an Adjustable Long Mode or Weekly Mode. (a) It is not necessary
.that all of the Bonds operate in the same Mode at the same time.
• The Remarketing Agent may designate a subsequent Mode with respect
to a Bond during an Adjustable Long Mode on any Rate Change Date
and during a Weekly Mode on any Business Day, subject to the
limitations set forth in this Section 601. The Remarketing Agent
may select such subsequent Adjustment Periods and, within an
Adjustable Long Mode, Rate Periods as will, in the judgment of the
Remarketing Agent, result in the lowest aggregate cost payable by
the Authority with respect to the Bonds, taking into account
interest and any other determinable fees and expenses. The
Remarketing Agent may establish different Adjustment Periods and,
within an Adjustable Long Mode, different Rate Periods for Bonds
on the same Adjustment Date in order to achieve an average duration
of Adjustment Periods and/or Rate Periods that, in the judgment of
the Remarketing Agent, is most likely to achieve the lowest total
aggregate cost payable by the Authority with respect to the Bonds,
taking into account interest and any other determinable fees and
expenses. The Remarketing Agent's determination shall be based
upon the market for and the relative yields of the Bonds and other
securities that bear interest at a variable rate or at fixed rates
that, in the judgment of the Remarketing Agent, are otherwise
comparable to the Bonds, or any fact or circumstance relating to
the Bonds or affecting the market for the Bonds or affecting such
other comparable securities in a manner that, in the judgment of
the Remarketing Agent, will affect the market for the Bonds. The
Remarketing Agent, in its discretion, may consider such information
and resources as it deems appropriate in making the determinations
•
55
required by this Section 601, but the Remarketing Agent's
determination shall be based solely. upon the Remarketing Agent's
judgment, and the Remarketing Agent's determination shall be
conclusive and binding upon all parties. The foregoing
notwithstanding, the Remarketing Agent may select any Adjustment
Period and, within an Adjustable Long Mode, any Rate Period upon
the satisfaction of Section 601(h)(ii) hereof. The Remarketing
Agent shall select such a principal amount of Bonds for conversion
from one Mode to another as will allow Bonds after conversion to
be sold in the minimum Authorized Denominations applicable to such
Mode.
(b) The Remarketing Agent shall evidence each
designation of a subsequent Adjustment Date for Bonds pursuant to
Section 601(a) hereof by giving written notice to the Trustee, the
Tender Agent, the Authority and the Credit Facility Issuer, which
written notice shall be received by each such party not less than
15 days prior to the Adjustment Date with respect to the new
Adjustment Period, specifying (i) the Mode in which-such Bonds
shall operate during such Adjustment Period and the commencement
date of such Adjustment Period and (ii) if such Adjustment Period
is to be an Adjustable Long Mode, the duration of such Adjustment
Period for each Bond affected thereby, the Rate Determination Date
or Dates and the Rate Change Date or Dates therefor and the
applicable optional redemption provisions determined in accordance
with Section 511(a)(ii) hereof; provided, however, that (A) no Rate
• Period (other than a Rate Period that is within an Adjustable Long
Mode) may extend beyond the Renewal Date; (B) if such Adjustment
Period is an Adjustable Long Mode, the first day following each
Rate Period therein shall be a Business Day; (C) if such Adjustment
Period is an Adjustable Long Mode and if the Renewal Date is
scheduled to occur during the current Rate Period therefor, the
amount payable to be drawn under the Credit Facility must include
an amount sufficient to pay the applicable premium on the Renewal
Date on which the Bonds bearing interest at an Adjustable Long Rate
are required to be purchased pursuant to Section 504 hereof; and
(D) if a Credit Facility is in effect, the number of days of the
applicable Interest Coverage Period shall be no less than the sum
provided in Section 405 (h) hereof and the Interest Coverage Rate
shall be no less than the rate provided in Section 405(h) hereof.
Such notice shall have attached to it evidence of satisfaction of
Section 601(h) hereof.
(c) No later than 11:00 a.m. , New York City time, on the
Rate Determination Date preceding an Adjustment Date which is the
first day of a Weekly Mode, the Remarketing Agent shall give notice
by telecopy to the Authority, the Trustee and the Tender Agent of
the initial Weekly Rate to be borne by the Bonds designated to
operate in a Weekly Mode. No later than 11:00 a.m., New York City
time, on the Rate Determination Date preceding an Adjustment Date
which is the first day of an Adjustable Long Mode, the Remarketing
Agent shall give notice by telecopy to the Authority, the Trustee
•
56
and the Tender Agent of the initial Adjustable Long Rate to be
• borne by each Bond designated to operate in an Adjustable Long
Mode.
(d) If the Authority shall designate a Mode for any Bond
different from that then in effect with respect to such Bond or
designate an Adjustment Period which is an Adjustable Long Mode
that succeeds an Adjustable Long Mode where the Adjustable Long
Mode or the Rate Periods therein change from a duration of 366 days
or less to a duration of more than 366 days, or vice versa, the
Authority shall cause to be delivered to the Trustee, the Tender
Agent, the Remarketing Agent and the Credit Facility Issuer
concurrently with the notice described above, and no such
designation of an Adjustment Period, Rate Period or subsequent
Adjustment Date shall take effect without, an Opinion of Bond
Counsel to the effect that such designation (i) is authorized or
permitted by this Indenture, (ii) will not have an adverse effect
on any exemption from federal income taxation to which the interest
on the Bonds would otherwise be entitled, and (iii) will not have
an adverse effect on the validity or enforceability of any Bond.
Notwithstanding the provisions of the preceding sentence, such
opinion shall not be required to be delivered with respect to (i) a
Weekly Mode or an Adjustable Long Mode with a duration of 366 days
or less if the immediately preceding Adjustment Period was a Weekly
Mode or an Adjustable Long Mode with a duration of 366 days or
less; or (ii) an Adjustable Long Mode with a duration of more than
. 366 days if the immediately preceding Adjustment Period was an
Adjustable Long Mode with a duration of more than 366 days. If an
Opinion of Bond Counsel is required to be delivered, together with
the notice, as provided in this Section 601(d), the conversion
contemplated by such opinion and notice shall not become effective
unless prior to 11:00 a.m., New York City time, on the applicable
Adjustment Date the Trustee shall have received an Opinion of Bond
Counsel, dated the Adjustment Date, reaffirming the conclusions of
the opinion accompanying the notice delivered as above required.
(e) In the event that the Remarketing Agent does not
determine the interest rate applicable to the initial Rate Period
during such new Mode with respect to any Bond all as provided in
subsection 601(a) hereof or if any relevant opinion required by
subsection 601(d) hereof is not delivered or is withdrawn or if the
Remarketing Agent shall fail to determine an Adjustable Long Rate
on a Rate Determination Date for a Rate Period within an Adjustable
Long Mode which is not a scheduled Adjustment Date, the immediately
succeeding Adjustment Period with respect to the Bonds in the
Adjustment Period or Rate Period then ending shall be a Weekly
Mode; provided, however, that in the event the preceding Rate
Period was of a duration of more than 366 days, in order for such
Bonds to so commence operation in a Weekly Mode, the Remarketing
Agent shall have obtained (A) certificates from the Authority, the
Trustee and the Credit Facility Issuer that there have been no
changes in the Credit Facility, in the documents executed and
•
57
delivered in connection with the original delivery of the Bonds or
• in any .other aspect of the action contemplated hereby since the
original delivery of the Bonds or (B) an Opinion of Bond Counsel
to the effect that the validity of the Bonds and any exemption from
federal income taxation to which the interest on the Bonds would
otherwise be entitled would not be impaired by reason of the
commencement of operation in such Weekly Mode. If no such
certificates or opinion can be obtained, in the case of a failed
Mode conversion, the immediately succeeding Adjustment Period shall
consist of one Rate Period in an Adjustable Long Mode of a duration
of 366 days.
(f) Upon receipt of notice from the Remarketing Agent
as provided in subsection 601(b) hereof, the Trustee or the Tender
Agent shall, at least ten days prior to each succeeding Adjustment
Date, notify by first class mail, postage prepaid, each owner of
Bonds thereby affected bearing interest at a Weekly Rate of the
mandatory purchase of the affected Bonds on the Adjustment Date.
(g) If in connection with and immediately subsequent to
any conversion of Modes as provided in this Section 601 a Credit
Facility is to be in effect; such conversion shall not be effective
unless the Interest Component specified in the Credit Facility is
not less than that required by Section 405(h) hereof. Under no
circumstances shall the Interest Component specified in the Credit
Facility then in effect be reduced before the Credit Facility
• Issuer has honored any draw made by the Trustee or Tender Agent on
the Adjustment Date. In addition, a conversion to an Adjustable
Long Mode shall not be effective if the Renewal Date is scheduled
to occur during the initial Rate Period therefor unless the Credit
Facility in effect after the Adjustment Date also includes an
amount sufficient to pay the applicable premium on the Renewal Date
on which the Bonds bearing interest at an Adjustable Long Rate are
required to be purchased pursuant to Section 504 hereof.
(h) Any designation by the Remarketing Agent pursuant
to Section 601(a) of a subsequent Adjustment Period shall be
accompanied by (i) a written statement from the Remarketing Agent,
addressed to the Authority, the Trustee and the Tender Agent, to
the effect that the Remarketing Agent has determined that such
change satisfies the standards provided in Section 601(a) hereof
or (ii) an approval in writing of such change by the Authority or
a duly authorized officer of the Authority or an Opinion of Bond
Counsel to the effect that such approval is not required for the
continued validity and enforceability of the Bonds in accordance
with their terms.
Section 602. Desianation of Substitute Adjustment Date
for Pledged Bonds. (a) The Authority may designate a Substitute
Adjustment Date for any Pledged Bonds with the consent of the
Credit Facility Issuer, which Substitute Adjustment Date shall be
58
the next succeeding Adjustment Date for such Bonds for all purposes
• of this Indenture.
(b) The Authority shall evidence each such designation
of a Substitute Adjustment Date by giving written notice to the
Remarketing Agent, the Tender Agent, the Trustee and the Credit
Facility Issuer, which written notice shall be received by the
Remarketing Agent, the Tender Agent, the Trustee and the Credit
Facility Issuer not less than 15 days prior to each such Substitute
Adjustment Date, specifying (i) the Mode in which such Bonds shall
operate commencing with such Substitute Adjustment Date and (ii) if
such Adjustment Period is to be an Adjustable Long Mode, the
duration of the immediately succeeding Adjustment Period for each
Bond affected thereby, the Rate Periods therein, the Rate Change
Dates and Rate Determination Dates therefor and the applicable
optional redemption provisions determined in accordance with
Section 511(a)(ii) hereof; provided, however, that clauses (A)
through (E) of the proviso in the first sentence of Section 601(b)
hereof shall apply to the designation by the Authority of a
Substitute Adjustment Date and the selection of the Rate
Determination Date or Dates and the Rate Change Date or Dates
applicable thereto. In addition, if the succeeding Adjustment
Period is to be an Adjustable Long Mode, the Remarketing Agent
shall give telephonic notice (confirmed by telecopy) to the Tender
Agent and the Trustee by 11:00 a.m., New York City time, on the
Rate Determination Date, specifying the interest rate which will
• be effective commencing on such Substitute Adjustment Date. If the
succeeding Adjustment Period is to be a Weekly Mode, the
Remarketing Agent shall give telephonic notice (subsequently
confirmed by telecopy) to the Authority, the Tender Agent and the
Trustee by 11:00 a.m., New York City time, on the Rate
Determination Date, specifying the interest rate which will be
effective commencing on such Substitute Adjustment Date.
(c) If the Authority shall designate a Substitute
Adjustment Date for any Bonds, it shall cause to be delivered to
the Trustee, the Tender Agent, the Remarketing Agent, the Authority
and the Credit Facility Issuer concurrently with the notice
described above, and no such designation of a Substitute Adjustment
Date, shall take effect without, an Opinion of Bond Counsel to the
effect that the designation of such Substitute Adjustment Date
(i) is authorized or permitted by this Indenture, (ii) will not
have an adverse effect on any exemption from federal income
taxation to which the interest on the Bonds would otherwise be
entitled, and (iii) will not have an adverse effect on the validity
or enforceability of any Bond. If the foregoing opinion described
in this subsection (c) is not delivered, the designation of the
related Substitute Adjustment Date shall not be effective. If an
Opinion of Bond Counsel is required to be delivered, together with
the notice, as provided in this Section 602(c), the conversion
contemplated by such opinion and notice shall not become effective
unless prior to 11:00 a.m., New York City time, on the applicable
•
59
Adjustment Date, the Trustee shall have received an Opinion of Bond
• Counsel, dated the Adjustment Date, reaffirming the conclusions of
the opinion accompanying the notice delivered as above required.
(d) Upon receipt
provided in subsection 602(c)
least one Business Day prior
Date, give immediate Notice
affected Bonds on the Substi
Facility Issuer.
of notice from the Authority as
hereof, the Tender Agent shall, at
to each such Substitute Adjustment
of the mandatory purchase of the
tute Adjustment Date to the Credit
(e) If in connection with and immediately subsequent to
any such conversion as provided in this Section 602 a Credit
Facility is to be in effect, such conversion shall not be effective
unless the Interest Component specified in the Credit Facility is
not less than the amount specified in Section 405(h) hereof.
(f) Any designation by the Authority pursuant to
Section 602 (a) of a Substitute Adjustment Period shall be
accompanied by (i) a written statement from the Remarketing Agent,
addressed to the Authority, the Trustee and the Tender Agent, to
the effect that the Remarketing Agent has determined that such
change satisfies the standards provided in Section 601(a) hereof
or (ii) an approval in writing of such change by the Authority or
a duly authorized officer of the Authority or an Opinion of Bond
Counsel to the effect that such approval is not required for the
• continued validity and enforceability of the Bonds in accordance
with their terms.
Section 603. Authority for and Conditions to Conversion
to a Fixed Rate. (a) On any Rate Change Date during an Adjustable
Long Mode or on any Business Day during a Weekly Mode, the interest
rate to be borne by all or any portion of the Bonds in such Mode
shall be converted to a Fixed Rate, and such Bonds so converted
shall thereafter bear interest at such Fixed Rate until payment of
the principal or redemption price thereof shall have been made or
provided for in accordance with the provisions hereof, whether at
Maturity, upon redemption or otherwise, upon receipt by the Trustee
and the Tender Agent of a direction from the Authority not less
than 15 days prior to the Conversion Date specified in such
direction. A Fixed Rate shall be determined for each Bond being
so converted on the basis of the Maturity for such Bond, taking
into consideration any designation of a specific mandatory
redemption date for such Bond pursuant to •Section 511(f) (ii) hereof
and as described in clause (i) of the next sentence. Such
direction of conversion shall be accompanied by (i) a firm
underwriting or purchase contract from a recognized firm of bond
underwriters or recognized institutional investors ("Qualified
Underwriters") to underwrite or purchase all Bonds which are to be
converted on such Conversion Date at a price of 100% of the
principal amount thereof, which shall request the Trustee to
designate on which dates specific Bonds will be subject to
•
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mandatory Sinking Fund redemption or payment at Maturity in
• accordance with Section 511(f)(ii) hereof which dates, together
with any such designations in connection with prior conversions,
shall conform to the mandatory Sinking Fund redemption payment
schedule for the Bonds set forth in Section 511(f)(i) hereof,
(ii) a certification from such Qualified Underwriters that, in
their best judgment under prevailing market conditions, the Fixed
Rate for each Bond specified in such underwriting or purchase
contract equals the minimum interest rate necessary to remarket
such Bond on the Conversion Date at 100% of the principal amount
thereof and (iii) an Opinion of Bond Counsel addressed to the
Authority and the Trustee to the effect that such conversion (A) is
authorized or permitted by this Indenture, (B) will not have an
adverse effect on any exemption from federal income taxation to
which the interest on the Bonds would otherwise be entitled, and
(C) will not have an adverse effect on the validity or
enforceability of any Bond. The conversion of the interest rate
borne by Bonds pursuant to this Section shall not become effective
unless prior to 11:00 a.m., New York City time, on the applicable
Conversion Date the Trustee and the Tender Agent shall have
received an Opinion of Bond Counsel, dated the applicable
Conversion Date, reaffirming the conclusions of the opinion
accompanying the written direction of the Authority delivered as
above required.
(b) At least ten days prior to the. Conversion Date, the
• Trustee shall give written notice of such election by the Authority
to the owners of all Bonds to be converted which notice shall state
(i) the Conversion Date and (ii) that such Bonds shall be subject
to mandatory purchase on such Conversion Date. The Trustee shall
give written notice by first class mail to the Remarketing Agent
and to the Credit Facility Issuer of the foregoing information.
(c) The Authority, at the direction of the Trustee,
shall deliver replacement Bonds bearing the Fixed Rate for
converted Bonds surrendered or deemed surrendered by the holder
thereof. Any such replacement Bonds shall be executed and
authenticated as provided in Section 208 of this Indenture;
provided, however, unless the form of the Bonds is revised pursuant
to Section 205 hereof, that the Trustee shall affix a legend on the
face of each Bond authenticated on or after the Conversion Date
therefor in substantially the following form:
This Bond bears interest at the. Fixed Rate, as
defined in this Bond, of % per annum from
and after This Bond is not
secured by a Credit Facility. This Bond shall
be called for mandatory Sinking Fund
redemption on February 1,
(d) From the date notice of the proposed establishment
of a Fixed Rate with respect to any Bond is received by the Trustee
• 61
or the Tender Agent as provided in subsection (a) of this
Section 603 through the Conversion Date therefor, such Bond shall
not be remarketed by the Remarketing Agent except to a buyer who
is notified in writing of the mandatory purchase of such Bond on
such Conversion Date.
(e) The determination of the Fixed Rate for any Bonds
shall be conclusive and binding upon the owners of such Bonds, the
Authority and the Trustee.
(f) Within five Business Days after the Conversion Date
for any Bonds, but in no event later than the Stated Expiration
Date then in effect, the amount available to pay principal and the
corresponding amount available to pay interest under such Credit
Facility shall be reduced with respect to such Bonds in accordance
with the terms of the Credit Facility and such Bonds shall not be
entitled to the benefit of a Credit Facility.
(g) After the Conversion Date for any Bonds, interest
on such Bonds shall be payable. semiannually on each February 1 and
August 1 until all of such Bonds shall have been paid or payment
shall have been duly provided for; provided, however, that the
interest payable on the February 1 and August 1 as the case may be,
next following the Conversion Date for such Bonds shall be for the
period, which may be less than six months, commencing on such
Conversion Date until such February 1 and August 1.
• (h) All Bonds bearing interest at a Fixed Rate
on or after the applicable Conversion Date therefor shaldelifethe
determination of specific redemption dates is made as provided in
Section 511(f)(ii) hereof and as described in Section-603 (a)
hereof, have affixed to their face the appropriate mandatory
redemption date therefor.
rate on anylBondito a Fixed Rate does not vo cur n uch Bondstshall
bear interest from and after the proposed Fixed Rate Conversion
Date in the Weekly Mode; provided, however, that if the Rate Period
preceding the failed Fixed Rate Conversion Date was of a duration
of more than 366 days, in order for the Bonds to so commence
operation in a Weekly Mode the Remarketing Agent shall have
obtained (A) certificates from the Authority, the Trustee and the
Credit Facility Issuer that there have been no changes in the
Credit Facility, the documents executed and delivered in connection
with the original delivery of the Bonds, or in any other aspect of
the action contemplated hereby since the original delivery of the
Bonds or (B) an Opinion of Bond Counsel to the effect that the
commencement of operation in such Weekly Mode will not have an
adverse effect on the validity of the Bonds or on any exemption
from federal income taxation to which the interest on the Bonds
would otherwise be entitled. If such certificates or opinion are
required but cannot be obtained, the immediately succeeding
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• Adjustment Period shall consist of one Rate Period in an Adjustable
Long Mode of a duration of one year plus one day.
Section 604. Effect of Notices. Failure by the Trustee
or the Tender Agent to give any notice, or any defect therein,
shall not extend the period for making elections or in any way
change the rights of the owners of such Bonds to elect to have
their Bonds purchased on any Demand Date or extend the period for
making such elections. Any notice mailed as provided herein shall
be conclusively presumed to have been given, whether or not the
owner of such Bonds receives the notice.
ARTICLE VII
GENERAL COVENANTS
Section 701. Pavment of Principal Premium if any and
Interest. Subject to the limited source of payment hereinafter
referred to, the Authority covenants that it will promptly pay the
principal of, premium, if any, and interest on every Bond issued
under this Indenture at the place, on the dates and in the manner
provided herein and in said Bonds according to the true intent and
meaning thereof. The principal of, and interest and premium, if
any, on the Bonds are payable solely from (a) rentals paid pursuant
to the Lease (b) moneys and investments held by the Trustee under,
• and to the extent provided in, this Indenture and (c) amounts drawn
under the Credit Facility. Nothing in the Bonds or in this
Indenture shall be considered as assigning or pledging any funds
or assets of the Authority (except the moneys and the Lease pledged
under this Indenture).
Section 702. Performance of Covenants; Legal
Authorization. The Authority covenants that it will faithfully
perform on its part at all times any and all covenants,
undertakings, stipulations and provisions contained in this
Indenture, in any and every Bond executed, authenticated and
delivered hereunder and in all proceedings of its members
pertaining thereto; provided, however, that except for the matters
set forth herein relating to payment of the Bonds, the Authority
shall not be obligated to take any action or execute any instrument
pursuant to any provision hereof until it shall have been requested
to do so by the Trustee, or shall have received the instrument to
be executed and at the option of the Authority shall have received
from the party requesting such execution assurance satisfactory to
the Authority that the Authority shall be reimbursed for its
reasonable expenses incurred or to be incurred in connection with
taking such action or executing such instrument. The Authority
represents that it is duly authorized under the Constitution and
laws of the State of Indiana, including particularly the Act and
the Bond Resolution, to issue the Bonds authorized hereby, to
• execute this Indenture, to pledge and to assign the Lease; that all
63
action on its part for the issuance of the Bonds and the execution
and delivery of this Indenture has been duly and effectively taken;
and that the Bonds in the hands of the owners thereof as shown on
the Bond Register are and will be valid and enforceable obligations
of the Authority according to the import thereof. Anything
contained in this Indenture to the contrary notwithstanding, it is
hereby understood that none of the covenants of the Authority
contained in this Indenture are intended to create a general or
primary obligation of the Authority.
Section 703. Ownership; Instruments of Further.
Assurance. The Authority represents that the pledge and assignment
of the Lease to the Trustee and the Credit Facility Issuer hereby
made are valid and lawful. 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, as 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. The
Authority covenants that it will do, execute, acknowledge and
• deliver or cause to be done, executed, acknowledged and delivered,
such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee or the Credit Facility
Issuer may reasonably require for the better assuring,
transferring, mortgaging, conveying, pledging, assigning and
confirming unto the Trustee, the Lease and all payments thereon and
thereunder pledged hereby to the payment of the principal of, and
premium, if any, and interest on, the Bonds and amounts owed to the
Credit Facility Issuer.
Section 704. Pavment of Taxes. 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 and the rentals paid thereunder or any moneys held in Trust
by the Trustee pursuant to the terms of this Indenture, except the
lien and charge to secure the Bonds and to secure the Credit
Facility Issuer upon such Lease and moneys, and except for
Permitted Encumbrances, as such term is defined in the Lease, and
•
64
• such other encumbrances as shall•be permitted by the Trustee and
the Credit Facility Issuer; 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.
Section 705. Compliance with Laws. 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.
Section 706. Failure to Pay Taxes. 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.
Section 707. Books and Records. 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 and
affairs of the Authority, and that it will:
(a) At such times as the Trustee or the Credit Facility
Issuer 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 and the
Credit Facility Issuer 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 Affidavit of Project Completion is filed with
the Trustee pursuant to Section 302, furnish to the Trustee a full
audit and report, certified by independent certified public
accountants, covering the operations of the Authority to the
•
65
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 .with the written consent of the
Credit Facility Issuer shall 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 and the
Credit Facility Issuer 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.
Section 708. Tax Covenants. In order to preserve the
exclusion of interest on the Bonds from gross income for federal
income tax purposes and as an inducement to purchasers of the
Bonds, the Authority represents, covenants and agrees that, to the
extent necessary:
(a) No person or entity or any combination thereof,
other than the Authority or a governmental unit (other than the
federal government) will use proceeds of the Bonds or property
financed by said proceeds other than as a member of the general
public. No person or entity or any combination thereof, other than
the Authority or a governmental unit (other than the federal
government) will own property financed by Bond proceeds or will
have actual or beneficial use of such property pursuant to a lease,
• 66
• a management or incentive payment contract, an arrangement such as
a take-or-pay or other type of output contract or any other type
of arrangement that differentiates that person's or entity's use
of such property from use by the public at large of such property.
(b) No Bond proceeds will be loaned to any entity or
person. No Bond proceeds will be transferred, directly or
indirectly, or deemed transferred to a nongovernmental person in
any manner that would in substance constitute a loan of the Bond
proceeds.
(c) The Authority will not take any action or fail to
take any action with respect to the Bonds that would result in the
loss of the exclusion from gross income for federal tax purposes
of interest on the Bonds pursuant. to Section 103(a) of the Code,
as in effect on the date of delivery of the Bonds, nor will the
Authority act in any manner which would adversely affect such
exclusion. The Authority further covenants that it will not make
any investment or do any other act or thing during the period that
any Bond is outstanding hereunder which would cause any Bond to be
an "arbitrage bond" within the meaning of Section 148 of the Code
and the Arbitrage Regulations as in effect on the date of delivery
of the Bonds. The Authority shall comply with the arbitrage rebate
requirements under Section 148 of the Code to the extent
applicable. In the event that at any time the Authority is of the
opinion that for purposes of this Section it is necessary to
• restrict or limit the yield on the investment of any moneys held
by the Trustee under this Agreement, the Authority shall so
instruct the Trustee in writing, and the Trustee shall take such
action as may be necessary in accordance with such instructions.
(d) All officers, employees and agents of the Authority
are authorized and directed to provide certifications of facts and
estimates that are material to the reasonable expectations of the
Authority as of the date the Bonds are issued and to enter into
covenants on behalf of the Authority evidencing the Authority's
commitment's made herein. In particular, all or any officers,
members, employees and agents of the Authority are authorized to
certify and/or enter into covenants for the Authority regarding the
facts and circumstances and reasonable expectations of the
Authority on the date the Bonds are issued and the commitments made
by the Authority herein regarding the amount and use of the
proceeds of the Bonds.
The Authority has furnished to the Trustee concurrently
with the execution and delivery of this Agreement, signed copies
of the arbitrage certificate of the kind contemplated by the Code.
The Trustee shall have the right in connection with any investment
of money in the Construction Fund, the Sinking Fund, the Reserve
Fund or the Operation and Reserve Fund to be made by it to require
that the Authority furnish the Trustee an opinion of counsel,
experienced in matters relating to the tax exemption of interest
•
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• payable on obligations of states and their instrumentalities and
political subdivisions, to the effect that the proposed investment
will not cause the Bonds to be classified as "arbitrage bonds"
within the meaning of Section 148 of the Code.
Without limiting the generality of the foregoing, the
Authority agrees that there shall be paid from time to time all
amounts required to be rebated to the United States pursuant to
Section 148(f) of the Code. This covenant shall survive payment
in full or defeasance of the Bonds.
Notwithstanding any provision of this Section, if the
Authority shall provide to the Trustee an opinion of nationally
recognized Bond counsel to the effect that any action required
under this Section is no longer required, or to the effect that
some further action is required, to maintain the exclusion from
gross income of the interest on the Bonds pursuant to Section 103
of the Code, the Authority may rely conclusively on such opinion
in complying with the provisions hereof.
Section 709. No Guarantees. 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.
• Section 710. No Encumbrances. 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.
Section 711. No Additional Indebtedness. The Authority
covenants that it will not incur any indebtedness secured by this
Indenture other than the Bonds unless the Credit Facility consents
thereto and 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 or to
otherwise pay the principal of and the interest on the Bonds) 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 solely 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
•
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after the redemption of the Bonds and payments of all amounts owed
• to the Credit Facility Issuer.
Section 712. Valid and Binding Lease. 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
thirty (30) 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, such proposed changes, together with all other
• changes previously made, will not increase the original cost of the
Project in an amount exceeding and 00/100
Dollars ($ .00);
(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.
69
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 or the Credit Facility Issuer 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 or amounts owed to the Credit Facility Issuer until
all indebtedness secured by this Indenture is fully paid, except
upon compliance with the provisions of Section and upon receipt
of consent of the Credit Facility Issuer. 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.
Section 713. 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
construction of the Project.
The Authority hereby assigns to the Trustee and the
Credit Facility Issuer all proceeds payable under the owner's
policies referred to in this Section 713 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 and the Credit Facility Issuer 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
such insurance moneys. The Trustee and the Credit Facility Issuer
may, however, accept any settlement or adjustment which the Trustee
may deem it advisable to make with such title insurers. The
Trustee and the Credit Facility Issuer may reimburse themselves
from any such insurance money for the costs and expenses incurred
by the Trustee and the Credit Facility Issuer 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 or the Credit Facility Issuer's, 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
optional redemption date or to reimburse the Credit Facility Issuer
in connection therewith.
Section 714. Recording and Filinq. The Authority
covenants that it will, if necessary, cause this Indenture and all
supplements hereto and the Lease and all addenda thereto, and all
related financing statements, to be kept, recorded and filed in
• 70
such manner and in such places as may be required by law in order
to preserve and protect fully the security of the holders of the
Bonds and the Credit Facility Issuer and the rights of the Trustee
and the Credit Facility Issuer hereunder.
Section 715. Bond Register. The Trustee shall keep on
file at its Principal Office the Bond Register relating to the
Bonds indicating the names and addresses of the owners of the Bonds
and the serial numbers of such Bonds held by each of such owners.
At reasonable times and under reasonable regulations established
by the Trustee the Bond Register may be inspected and copied by the
Authority, the Trustee, the Tender Agent, the Credit Facility
Issuer, the Authority, the Remarketing Agent or the authorized
representative of any owner or owners of 150 or more in principal
amount of the Bonds then outstanding, such ownership and the
authority of any such designated representative to be evidenced to
the satisfaction of the Trustee. The Trustee may designate the
Tender Agent to serve as Registrar or designate a Co-Registrar by
a notice in writing delivered to the Authority and the Remarketing
Agent in which case the references herein to Trustee shall be
deemed to refer exclusively to the Tender Agent or to also refer
to such Co-Registrar, as the case may be.
ARTICLE VIII
• INSURANCE
Section 801. 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 (100%) 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:
71
Bodily injury insurance in an amount not less than One
Million Dollars ($1,000,000) 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 and in
an amount not less than Five Hundred Thousand Dollars ($500,000)
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 Subsections (a) and (b) of this section and the
preceding sentence shall be furnished to the Trustee and the Credit
Facility Issuer.
Section 802. 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 (100%) 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 $25,000; a blanket public institutional property
insurance form may be used if: (i) the insurance on the Project
is not less than the amount required by this Section 802; (ii) the
Commission subordinates its claim for damage or destruction to
other buildings or improvements to claims for damage or destruction
of the Project; and (iii) the insurance proceeds related to damage
to or destruction of the Project are payable to the Trustee; 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 Section 802 (a) above; and
~~
72
(c) Public liability and property damage insurance in
amounts customarily carried for similar properties; provided
however, that, notwithstanding Section 803, such insurance may be
provided under the public liability self insurance program of the
City of South Bend.
Section 803. Except as provided in Section 802(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 referred
to in Section 802 and the architect's or engineer's certificates
referred to in Section 802(a) shall be deposited with the Trustee
and the Credit Facility Issuer. A schedule of such policies shall
be deposited with the Trustee and the Credit Facility Issuer. 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.
Section 804. 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 Indenture, 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.
Section 805. The insurance policies required by Section
801 and Section 802 shall be for the benefit, as their interests
shall appear, of the Trustee, the Credit Facility Issuer, 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
Credit Facility Issuer, and the Trustee and the Credit Facility
Issuer are hereby authorized to demand, collect and receipt for and
recover any and all insurance moneys t~hich 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.
• 73
Section 806. Subject to the terms of the Credit Facility
Agreement, the proceeds of such insurance received by the Trustee
shall be applied by the Authority 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 with the written consent of the Credit Facility
Issuer in the manner and upon the showings provided for in Section
hereof, except that the Trustee with the written consent of
the Credit Facility Issuer may release such proceeds, or a part
thereof, upon a showing satisfactory to the Trustee that repairs
have been made and paid for. If either or both conditions shall
not exist, the proceeds of such insurance received by the Trustee
shall be used upon the consent of the Credit Facility Issuer to
redeem Bonds in an extraordinary optional redemption, in whole or
in part, at any time, without premium or penalty.
Section 807. In the event the Authority shall not
• commence to repair, replace or reconstruct 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, replacements, or reconstructions 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, replacements, or reconstructions 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, provided, the Trustee may not elect to undertake
such work if the last sentence of Section 6.06 applies.
Section 808. In case the Authority shall neglect, fail
or refuse to proceed forthwith in good faith with the repair,
replacement or reconstruction 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, replacements, or reconstructions of the
destroyed or damage property as above provided) transfer such
~ proceeds to the Sinking Fund.
74
• Section 809. 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 and to pay all amounts owed to the Credit
Facility Issuer, 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 Indenture at the then current Redemption
Price.
Section 810. 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, the Credit Facility Issuer 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.
Section 811. The Trustee may accept the statements,
affidavits and certificates hereinabove in this Article VIII
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 IX
EVENTS OF DEFAULT; REMEDIES
Section 901. Extension of Payment; Penaltv. In case the
time for the payment of principal of or the interest on any Bonds
shall be extended, whether or not such extension be by or with the
consent of the Authority, such principal or such interest so
extended shall not be entitled in case of default hereunder to the
benefit or security of this Indenture except subject to the prior
payment in full of the principal of all fonds then outstanding and
of all interest thereon, the time for the payment of which shall
not have been extended.
Section 902. Events of Default. Each of the following
events is hereby declared an "event of default," that is to say:
•
75
(a) default in the payment of any interest on any Bond
• (other than Pledged Bonds) when and as the same shall-have become
due; or
(b) default in the payment of the principal of any Bond
or purchase price in event of tender of any Bond (other than
Pledged Bonds)•when and as the same shall become due, whether at
the stated maturity thereof, by proceedings for redemption, or upon
any Interest Payment Date, or upon the maturity thereof by
declaration; or
(c) receipt by the Trustee of a written notice from the
Credit Facility Issuer that an event of default has occurred and
is continuing and that the Credit Facility will terminate within
ten (10) days from the date of such notice; or
(d) receipt by the Trustee on or prior to the tenth
(10th) Business Day following the day a drawing for interest has
been made on the Credit Facility Issuer of written notice from the
Credit Facility Issuer that the amount of such drawing has not been
reinstated in accordance with the Credit Facility; or
(e) wrongful dishonor of any conforming draft and
certificates under the Credit Facility by the Credit Facility
Issuer; or
• (f) default in the observance or performance of any
other of the covenants, agreements or conditions on the part of the
Authority included in this Indenture or in the Bonds (other than
a Default set forth in Section 902 (a) or (b) above), and the
continuance thereof for a period of 30 days after receipt of
written notice to the Authority and the Credit Facility Issuer
given by the Trustee; or
(g) 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; or
(h) 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; or
76
(i) if any judgment shall be recovered against the
• Authority or any attachment or other court process issues 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; or
(j) if the Authority shall file a petition under the
provisions of the U.S. Bankruptcy Code, as amended ("Bankruptcy
Code"), or files an answer seeking the relief provided in said
Bankruptcy Code; or
(k) 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; or
(1) 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; or
• (m) 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 thirty (30) days in
default; or
(n) if the lease rental provided for in said Lease is
not paid when due; or
(o) any event of default as defined in Section 15 of the
Lease shall occur and be continuing.
If on the date payment of principal of or interest on the
Bonds is due, or if on the date on which payment of the purchase
price of Bonds is to be made, sufficient moneys are not available
to make such payment, the Trustee shall give telephonic notice of
such insufficiency to the Authority., -
Nothing contained in this Indenture shall obligate the
Credit Facility Issuer to give notice to the Trustee of an Event
of Default under the Credit Facility Indenture unless the Credit
Facility Issuer intends to terminate the Credit Facility or direct
the Trustee with respect to remedies under the circumstances
permitted hereunder.
77
Section 903. Acceleration. (a) Upon the occurrence of
• an Event of Default other than those specified in subsection (a),
(b), (c) or (d) of Section 902 hereof the Trustee may, (but only
with the consent of the Credit Facility Issuer) without any action
on the part of the Bondholders; or
(b) upon the occurrence of an Event of Default other
than those specified in subsection (a), (b), (c), or (d) of
Section 902 hereof and the written request of the owners of not
less than 25% in principal amount of the Bonds then outstanding
hereunder (exclusive of Pledged Bonds and any Bonds the registered
owner of which is the Authority) and upon being indemnified to its
satisfaction as provided in Section 1001(c) hereof (with the
consent of the Credit Facility Issuer if the Bank's Percentage is
at least equal to 50% and subject to Section 1301 hereof,) the
Trustee shall; or
(c) upon the occurrence and continuance of an Event of
Default specified in subsection (a), (b), (c), (d), or (e) of
Section 902 hereof the Trustee shall declare the entire principal
amount of the Bonds then outstanding hereunder and the interest
accrued thereon immediately due and payable, -and the entire
principal and interest shall thereupon become and be immediately
due and payable, subject, however, to the provisions of Section 911
hereof with respect to waivers of Events of Default. The Trustee
shall give notice thereof by first class mail, postage prepaid, to
• all owners of outstanding Bonds. During the period any Credit
Facility is in effect, the Trustee shall immediately draw moneys
under the Credit Facility, to the extent available thereunder, in
an amount sufficient to pay principal of and accrued interest to
the date of acceleration.
Section 904. Remedies; Rights of Bondholders. Upon the
occurrence and continuance of any Event of Default, the Trustee
may, with the consent of the Credit Facility Issuer subject to
Section 1301 hereof,.. without any action on the part of the
Bondholders, or upon the occurrence and continuance of any Event
of Default and the written request of the owners of not less than
25% in principal amount of the Bonds then outstanding hereunder
(exclusive of Pledged Bonds and any Bonds the registered owner of
which is the Authority) and upon being indemnified to its
satisfaction as provided in Section 1001(c) hereof the Trustee
shall, but only with the consent of the Credit Facility Issuer if
the Bank's Percentage is at least equa'1 to 50% and subject to
Section 1301 hereof,
(a) by mandamus, or other suit, action or proceeding at
law or in equity, enforce all rights of the owners under, and
require the Authority or the Credit Facility Issuer to carry out
any agreements with or for the benefit of the owners of Bonds and
to perform its or their duties under the Act, the Credit Facility
_ and this Indenture, provided that any such remedy may be taken only
78
• to the extent permitted under the applicable provisions of this
Indenture;
(b) bring suit upon the Bonds; or
(c) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights of the
owners of Bonds;
provided, however, that the Trustee shall have the right to decline
to comply with any such request or direction if the Trustee shall
be advised by counsel (who may be its own counsel) that the action
so requested may not lawfully be taken or the Trustee in good faith
shall determine that such action would be unjustly prejudicial to
the owners of Bonds not parties to such request.
No remedy by the terms of this Indenture conferred upon
or reserved to the Trustee (or to the owners of Bonds) is intended
to be exclusive of any other remedy, but each and every such remedy
.shall be cumulative and shall be in addition to any other remedy
given to the Trustee or to the owners of Bonds hereunder now or
hereafter existing at law or in equity or by statute; provided,
however, that any conditions set forth herein to the taking of any
remedy to enforce the provisions of this Indenture or the Bonds
shall also be conditions to seeking any remedies under any of the
foregoing pursuant to this Section 904.
• No delay or omission of the Trustee, the Credit Facilit
Y
Issuer or any owner of Bonds to exercise any right or power
accruing upon any default or Event of Default shall impair any such
right or power or shall be construed to be a waiver of any such
default or Event of Default, or acquiescence therein; and every
such right and power given by this Article IX to the Trustee, the
Credit Facility Issuer and the owners of Bonds, .respectively, may
be exercised from time to time and as often as may be deemed
expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee, the Credit Facility Issuer or by the owners
of Bonds, shall extend to or shall affect any subsequent default
or Event of Default or shall impair any rights or remedies
consequent thereon.
Section 905. Direction of Proceedings by Bondholders.
If the Credit Facility is not in effect or the Credit Facility
Issuer has failed to honor a draft drawn in [Schreiber comment,
the owners of not less than 51% in aggregate principal amount of
Bonds then outstanding, and the Credit Facility Issuer, subject to
Section 1401 hereof, shall have the right, at any time, by an
instrument or instruments in writing executed and delivered to the
Trustee, to direct the method and place of conducting all
~ proceedings to be taken in connection with the enforcement of the
79
• terms and conditions of this Indenture, including enforcement of
the rights of the Authority under the Lease or the appointment of
a receiver or any other proceedings hereunder; provided that such
direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture; and provided further,
however, that the owners of not less than 51~ in aggregate
principal amount of all then outstanding Bonds bearing interest at
a Weekly Rate or at an Adjustable Long Rate shall have the right
at any time by an instrument or instruments in writing executed and
delivered to the Trustee to direct the method and place of
conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of the Credit Facility.
Section 906. Appointment of Receivers. Upon the
occurrence of an Event of Default, and upon the filing of a suit
or other commencement of judicial proceedings to enforce the rights
of the Trustee and the owners of Bonds under this Indenture, the
Trustee shall be entitled, as a matter of right, to the appointment
of a receiver or receivers of the rents, revenues, issues,
earnings, income and proceeds thereof, pending such proceedings,
with such powers as the court making such appointment shall confer.
Section 907. Application of Moneys. Subject to the
provisions of Section 401(b) hereof, all moneys received by the
Trustee or the Tender Agent, by any receiver or by any Bondholder
pursuant to any right given or action taken under the provisions
• of this Article IX shall, after payment of the costs and expenses
of the proceedings resulting in the collection of such moneys and
of the expenses, liabilities and advances incurred or made by the
Trustee (provided that moneys received under a Credit Facility for
the payment of principal, premium, if any, or interest on Bonds
shall be used only for payment of the Bonds other than Pledged
Bonds, Bonds bearing interest at a Fixed Rate or Bonds held of
record by the Authority), be deposited in the Sinking Fund or, in
the case of amounts received as a result of draws on the Credit
Facility, in the LOC Principal Sub-account or the LOC Interest Sub-
account of the Sinking Fund, as the case may be, and all moneys so
deposited during the continuance of an Event of Default (other than
moneys for the payment of Bonds which have previously matured or
otherwise become payable prior to such Event of Default or for the
payment of interest due prior to such Event of Default), together
with all moneys in the funds maintained by the Trustee or the
Tender Agent under Articles III and IV hereof other than the Bond
Purchase Fund, shall be applied as follows.
(a) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all such moneys
shall be applied (subject to the limitations imposed by the first
sentence of this Section 907):
80
First: To the payment of amounts, if
• any, payable to the United States Treasury
pursuant to Section hereof;
Second: To the payment to the Persons
entitled thereto of all installments of
interest then due on the Bonds, with interest
on overdue installments, if lawful, at the
rate per annum borne- by the Bonds, in the
order of the installments of such interest,
and, if the amount available shall not be
sufficient to pay in full any particular
installment of interest, then to the payment
ratably, according to the amount due on such
installment, to the Persons entitled thereto
without any discrimination or privilege;
Third: To the payment to the Persons
entitled thereto of the unpaid principal of
any of the Bonds which shall have become due
(other than Bonds called for redemption for
the payment of which moneys are held pursuant
to the provisions of this Indenture), with
interest on such Bonds at their rate from the
respective dates upon which they became due,
in the order of their due dates, and, if the
• amount available shall not be sufficient to
pay in full Bonds due on any particular date,
together with such interest, then to the
payment ratably, according to the amount of
principal and interest due on such date, to
the Persons entitled thereto without any
discrimination or privilege;
Fourth: To the payment to the Persons
entitled thereto of unpaid principal and
interest due and owing on any Bonds, the
payment of principal and interest of which has
been extended in the manner described in
Section 901 hereof; and
Fifth: To the payment of any amounts
owed to the Credit Facility Issuer under the
Credit Facility.
(b) If the principal of all the Bonds shall have become
due or shall have been declared due and payable, all such moneys
shall be applied (subject to the limitations imposed by the first
sentence of this Section 907):
81
First: To the payment of amounts, if
• any, payable to the United States Treasury
pursuant to Section hereof; and
Second: To the payment of the principal
and interest then due and unpaid upon the
Bonds, with interest on overdue interest and
principal, as aforesaid, without preference or
priority of principal over interest or of
interest over principal or of any installment
of interest over any other installment of
interest, or of any Bond over any other Bond,
ratably, according to the amounts due
respectively for principal and interest, to
the Persons entitled thereto without any
discrimination on or privilege;
Third: To the payment of the principal
and interest then due and unpaid upon Bonds
with respect to which the payment of principal
and interest has been extended as described in
Section 901 hereof; and
Fourth: To the payment of any amounts
owed to the Credit Facility Issuer under the
terms of the Credit Facility.
• (c) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall thereafter
have been rescinded and annulled under the provisions of this
Article IX, then, subject to the provisions of paragraph (b) of
this Section 907 which shall be applicable in the event that the
principal of all the Bonds shall later become due or be declared
due and payable, the moneys shall be applied in accordance with the
provisions of paragraph (a) of this Section 907.
Notwithstanding the foregoing, any moneys which the
Trustee holds pursuant to Section hereof must be distributed
in accordance such Section
Whenever moneys are to be applied pursuant to the
provisions of this Section, such moneys shall be applied at such
times, and from time to time, as the Trustee shall determine,
having due regard for the amount of such moneys available for
application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee
shall apply such moneys (which shall not include the application
of moneys upon the occurrence of an acceleration pursuant to
Section 903 hereof), it shall fix the date (which shall be an
Interest Payment Date unless it shall deem another date more
suitable) upon which such application is to commence and upon such
date interest on the amounts of principal and interest to be paid
•
82
on such date shall cease to accrue. The Trustee shall give such
• notice as it may deem appropriate of the deposit with it of any
such moneys and of the fixing of any such date and of the Special
Record Date in accordance with Section 202 (f) hereof. The Trustee
or the Tender Agent shall not be required to make payment to the
holder of any unpaid Bond until such Bond shall be presented to the
Trustee or the Tender Agent, as the case may be, for appropriate
endorsement or for cancellation if fully paid.
Whenever all Bonds. and interest thereon have been paid
under the provisions of this Section 907 and all expenses and
charges of the Trustee have been paid pursuant to Section 1002
hereof, any balance remaining shall be paid to the Credit Facility
Issuer to the extent it is entitled to receive the same pursuant
to the Credit Facility Indenture, as evidenced by a certificate of
the Credit Facility Issuer filed with the Trustee; then the
balance, if any, shall be paid to the Authority.
Section 908. Remedies Vested in Trustee. All rights of
action including the right to file proof of claims under this
Indenture or under any of the Bonds may be enforced by the Trustee
without the possession of any of the Bonds or the production
thereof in any trial or other proceedings relating thereto and any
such suit or proceeding instituted by the Trustee shall be brought
in its name as Trustee without the necessity of joining as
plaintiffs or defendants any owners of the Bonds, and any recovery
• of judgment shall be for the equal benefit of the owners of the
then outstanding Bonds, subject to the provisions of this
Indenture.
Section 909. Riahts and Remedies of Bondholders. No
owner of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless a
default shall have become an Event of Default and the owners of 25%
in aggregate principal amount of Bonds then outstanding, with the
consent of the Credit Facility Issuer shall have made written
request to the Trustee and shall have offered the Trustee
reasonable opportunity either to proceed to exercise the powers
hereinbefore granted or to institute such action, suit or
proceeding in its own name, and unless also such Bondholders have
offered to the Trustee indemnity as provided in Section 1001(1)
hereof, and unless the Trustee shall the"reafter fail or refuse to
exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding in its own name; and such notification,
request and offer of indemnity are hereby declared in every case
at the option of the Trustee to be conditions precedent to the
execution of the powers and trusts of this Indenture and to any
action or cause of action for the enforcement of this Indenture,
or for the appointment of a receiver or for any other remedy
hereunder; it being understood and intended that no one or more
• 83
owners of the Bonds shall have any right in any manner whatsoever
• to affect, disturb or prejudice the lien of this Indenture by any
action or to enforce any right hereunder except in-the manner
herein provided, and that all proceedings at law or in equity shall
be instituted, had and maintained in the manner herein provided and
for the equal benefit of the owners of all Bonds outstanding.
Nothing in this Indenture contained shall, however (a) affect or
impair the right of any owner to enforce the payment of the
principal of and interest on any Bond at and after the Maturity
thereof, (b) affect or impair the obligation of the Authority to
pay the principal of and interest on each of the Bonds issued
hereunder to the respective owners thereof at the time and place,
from the source and in the manner in said Bonds expressed or
(c) create any right or claim in owners of Bonds bearing interest
at a Fixed Rate or at an Adjustable Long Rate for the period after
the Stated Expiration Date in or to any moneys drawn under the
Credit Facility or otherwise made available under any Alternate
Credit Facility. Nothing herein shall limit the rights granted to
the Credit Facility Issuer under this Indenture. Furthermore, upon
payment of principal of and interest on the Bonds, the Credit
Facility Issuer shall be subrogated to the rights of the holders
of such Bonds for the purposes of this Indenture.
Section 910. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver, or otherwise, and such
• proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee,
then and in every case the Authority and the Trustee shall, subject
to any determination in such proceeding, be restored to their
former positions and rights hereunder with respect to the property
pledged and assigned hereunder, and all rights, remedies and powers
of the Trustee shall continue as if no such proceedings had been
taken.
Section 911. Waiver of Events of Default. The Trustee
may, in its discretion, with the consent of the Credit Facility
Issuer, subject to Section 1401 hereof, but without any action on
the part of the Bondholders, waive any Event of Default hereunder
and its consequences and rescind any declaration of acceleration
of principal, and shall do so upon written request of the Credit
Facility Issuer, subject to Section 1401 hereof, or upon written
request of the owners of (a) at least 51% in aggregate principal
amount of all the Bonds outstanding in respect of which default in
the payment of principal and/or interest exists, or (b) at least
51% in aggregate principal amount of all the Bonds outstanding,
with the consent of the Credit Facility Issuer, subject to
Section 1401 hereof, in the case of any other event of default;
provided, however that there shall not be waived (i) any Event of
Default in the payment of the principal of any outstanding Bonds
when due whether by mandatory redemption through the Sinking Fund
or at the dates of Maturity specified therein, or (ii) any default
• 84
in the payment when due of the interest on any such Bonds unless
• prior to such waiver or rescission all arrears of interest, with
interest thereon (to the extent permitted by law) at the rate borne
by the Bonds in respect of which such default shall have occurred
on overdue installments of interest or all arrears of payments of
principal when due, as the case may be, and all expenses of the
Trustee, the Tender Agent and any Paying Agent in connection with
such default shall have been paid or provided for, and if the
Credit Facility is then in effect, such payment or provision for
payment of principal and interest on Bonds bearing interest at a
Weekly Rate or at an Adjustable Long Rate is made.
~J
The provisions of the foregoing paragraph are further
subject to the condition that any waiver by the Credit Facility
Issuer of any event of default under the Credit Facility Agreement
and a rescission and annulment of its consequences shall constitute
a waiver of the corresponding Event of Default under subsection (c)
of Section 902 hereof and a rescission and annulment of the
consequences thereof without the consent of the owners of the
Bonds. If notice of such event of default under the Credit
Facility Agreement shall have been given as provided herein and if-
the Trustee shall thereafter have received written notice from the
Credit Facility Issuer that such event of default shall have been
waived, the Trustee, if it has not already drawn on the Credit
Facility in connection with such Event of Default, shall promptly
give written notice of such waiver, rescission or annulment to the
Authority, the Credit Facility Issuer, the Tender Agent and the
Remarketing Agent, and shall give notice thereof by first class
mail, postage prepaid, to all owners of outstanding Bonds.
Anything herein to the contrary notwithstanding, there shall be no
waiver of an Event of Default under subsection (c) of Section 902
hereof unless the Trustee shall have received written notice from
the Credit Facility Issuer that the Credit Facility has been
reinstated to an amount equal to the principal amount of all then
outstanding Bonds bearing interest at a Weekly Rate or at an
Adjustable Long Rate, plus the applicable Interest Component
required by Section 406(h) hereof plus any amount relating to
premium required by Section 406(h) hereof.
In case of any such waiver or rescission or in case any
proceeding taken by the Trustee on account of any such default
shall have been discontinued or abandoned or determined adversely,
then and in every such case the Authority, the Trustee, the Credit
Facility Issuer and the Bondholders shall, subject to any
determination in such proceeding, be restored to their former
positions and rights hereunder respectively, but no such waiver or
rescission shall extend to any subsequent or other default, or
impair any right consequent thereon.
Notwithstanding the foregoing, prior to the final
Conversion Date with respect to all of the Bonds, no waiver,
rescission or annulment of an Event of Default hereunder shall be
85
made if the Credit Facility Issuer shall theretofore have honored
• in full a drawing under the Credit Facility in respect of such
Event of Default..
Section 912. Notice of Default. In the event of any
default hereunder, the Trustee will promptly give written notice
thereof to the Authority, the Remarketing Agent, the Tender Agent,
and the Credit Facility Issuer, setting forth the nature of such
default.
r~
~_J
86
ARTICLE X
• TRUSTEE; TENDER AGENT; REMARKETING AGENT
Section 1001. Acceptance of the Trusts. The Authority
initially appoints The Norwest Bank Indiana, N.A., as Trustee,
Paying Agent and Registrar. The Trustee hereby accepts and agrees
to execute the trusts imposed upon it by this Indenture, but only
upon the terms and conditions set forth herein, to all of which the
Authority agrees and the respective owners of the Bonds agree by
their acceptance of delivery of any of the Bonds. The Trustee,
prior to the occurrence of an Event of Default hereunder and after
the curing of all Events of Default hereunder which may have
occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and to perform such
trusts as an ordinarily prudent trustee under a corporate indenture
and no other implied covenants or obligations should be read into
this Indenture against the Trustee. If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and shall use the.
same degree of care as a prudent person would exercise in the
circumstances in the conduct of such person's own affairs. The
Trustee agrees to perform such trusts upon and subject to the
following expressed terms and conditions:
(a) The Trustee may execute any of the trusts or powers
• hereof and perform any of its duties by or through attorneys,
agents or receivers and shall not be responsible for the misconduct
or negligence of any such attorneys, agents or receivers appointed
in the exercise of the care of an ordinarily prudent trustee, and
shall be entitled to advice of counsel concerning all matters of
trusts hereof and duties hereunder, and may in all cases pay such
reasonable compensation to any attorney, agent, receiver or
employee retained or employed by it in connection herewith. The
Trustee may act upon the opinion or advice of an attorney,
surveyor, engineer or accountant selected by it in the exercise of
reasonable care or, if selected or retained by the Authority,
approved by the Trustee in the exercise of such care. The Trustee
shall not be responsible for any loss or damage resulting from any
action or omission based on its good faith reliance upon such
opinion or advice.
(b) The Trustee shall not be responsible for any recital
herein, or in the Bonds (except with respect to the certificate of
the Trustee endorsed on the Bonds), or for the investment of moneys
as herein permitted (except that no investment shall be made except
in compliance with Sections 407 and 411 hereof and the Tax
Exemption Agreement), or for the recording or re-recording, filing
or re-filing of this Indenture, or any supplement or amendment
thereto, or the filing of financing statements, or for the validity
of the execution by the Authority of this Indenture, or of any
supplemental indentures or instruments of further assurance, or for
• 87
the sufficiency of the security for the Bonds issued hereunder or
• intended to be secured hereby, or for the value or title of the
property herein conveyed or otherwise as to the maintenance of the
security hereof.
(c) The Trustee shall not be accountable for the use or
application by the Authority of any of the Bonds or the proceeds
thereof or for the use or application of any money paid over by the
Trustee in accordance with the provisions of this Indenture or for
the use and application of money received by the Tender Agent or
any Paying Agent (except when the Trustee acts as Tender Agent or
Paying Agent).
(d) The Trustee shall be protected in acting upon any
notice, order, requisition, request, consent, certificate, order,
opinion (including an opinion of Independent Counsel), affidavit,
letter, telegram or other paper or document in good faith deemed
by it to be genuine and correct and to have been signed or sent by
the proper person or persons. Any action taken by the Trustee
pursuant to this Indenture upon the request or authority or consent
of any person who at the time of making such request or giving such
authority or consent is the owner of any Bond, shall be conclusive
and binding upon all future owners of the same Bond and upon Bonds
issued in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact or
• as to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee shall be~ entitled to rely upon a
certificate signed on behalf of the Authority by its President or
its Vice President as sufficient evidence of the facts therein
contained and prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (g) of this
Section, or of which by said subsection it is deemed to have
notice, may accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence
.deemed necessary or advisable, but shall in no case be bound to
secure the same. The Trustee may accept a certificate of the
Secretary-Treasurer of the Authority to the effect -that a
resolution in the form therein set forth has been adopted by the
Authority as conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and
the Trustee shall not be answerable for other than its negligence
or willful default.
(g) The Trustee shall not be required to take notice or
be deemed to have notice of any default hereunder, other than an
Event of Default under clause (a), (b), (c), (d), or (e) of
Section 902 hereof unless the Trustee shall be specifically
• 88
notified in writing of such default by the Authority, by the Credit
• Facility Issuer, by the Remarketing Agent or by the owners of at
least 25o in aggregate principal amount of all Bonds then
outstanding, and all notices or other instruments required by this
Indenture to be delivered to the Trustee must, in order to be
effective, be delivered at the Principal Office of the Trustee, and
in the absence of such notice so delivered the Trustee may
conclusively assume there is no default except as aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal property
injured or damaged, or for salaries or nonfulfillment of contracts
during any period in which it may be in possession of or managing
the Property of the Authority.
(i) At any and all reasonable times, the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully to
inspect any and all of the property pledged hereunder, including
all books, papers and records of the Authority pertaining to the
property pledged hereunder and the Bonds, and to take such
memoranda from and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and powers
or otherwise in respect of the premises.
• (k) Before taking any action under this Section 1001
other than an acceleration when required pursuant to Section 803
hereof, a redemption of Bonds pursuant to 511(c) or a drawing under
the Credit Facility and payment on the Bonds with the proceeds of
such drawing and transfer of amounts due the Credit Facility Issuer
in accordance herewith, the Trustee may require that a satisfactory
indemnity bond be furnished for the reimbursement of all expenses
to which it may be put and to protect it against all liability,
except liability which is adjudicated to have resulted from its
negligence or willful default in connection with any action so
taken.
(1) All moneys received by the Trustee, the Tender Agent
or any Paying Agent shall, until used or applied or invested as
provided in this Indenture, be held in trust for the purposes for
which they were received but need not be segregated from other
funds except to the extent required by law, by this Indenture or
by the Tax Exemption Agreement. Neither the Trustee, the Tender
Agent nor any Paying Agent shall be under any liability for
interest on any moneys received hereunder except such as may be
agreed upon.
Section 1002. Compensation and Expenses of Trustee
Tender Accent and Any Additional Paying Agent. The Trustee, the
Tender Agent shall be entitled to payment and/or reimbursement for
• 89
reasonable fees and for their respective services rendered
• hereunder (including services as Registrar, Co-Registrar, .Paying
Agent and authenticating agent) and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred by each
of them in connection with such services. Any additional Paying
Agent shall be entitled to payment and reimbursement for its
reasonable fees and charges as additional Paying Agent for the
Bonds. Upon an Event of Default hereunder, but only upon such an
Event of Default, the Trustee, the Tender Agent and any additional
Paying Agent shall have a right of payment prior to payment on
account of principal of, or premium, if any, or interest on, any
Bond for the foregoing advances, fees, costs and expenses incurred;
provided, however, that in no event shall the Trustee, the Tender
Agent or any such additional Paying Agent have any such prior right
of payment or claim therefor against (a) any moneys received under
the Credit Facility, (b) moneys held to pay redemption price,
including premium, of the Bonds, (c) moneys or obligations
.deposited with or paid to the Trustee for the redemption or payment
of Bonds which are deemed to have been paid in accordance with
Article XII hereof, (d) funds held pursuant to Section 408 hereof,
or (e) the proceeds of remarketing of the Bonds and any other
moneys held in the Bond Purchase Fund.
The Authority shall not be obligated to execute any
documents or take any other action under or pursuant to this
Indenture or any other document in connection with the Bonds unless
• and until provision for the payment of expenses of the Authority
shall have been made. Provisions for expenses shall be deemed to
have been made upon arrangements reasonably satisfactory to the
Authority for the provision of expenses being agreed upon by the
Authority and the party requesting such execution.
Section 1003. Notice to Bondholders if Default Occurs.
If a default occurs of which the Trustee is by subsection (g) of
Section 1001 hereof required to take notice or if notice of default
be given as in said subsection (g) provided, then the Trustee shall
give written notice thereof by certified or registered mail to the
registered owners of all then outstanding Bonds.
Section 1004. Good Faith Reliance. The Trustee, the
Tender Agent and any additional Paying Agent shall be protected and
shall incur no liability in acting or proceeding in good faith upon
any resolution, notice, telegram, telex or facsimile transmission,
request, consent, waiver, certificate, statement, affidavit,
voucher, bond, requisition or other paper or document which it
shall in good faith believe to be genuine and to have been passed
or signed by the proper board, body or person or to have been
prepared and furnished pursuant to any of the provisions of this
Indenture, the Credit Facility or the Lease Agreement, or upon the
written opinion of any attorney, engineer, accountant or other
expert believed by the Trustee, the Tender Agent and any additional
~ Paying Agent, as the case may be, to be qualified in relation to
90
the subject matter, and the Trustee, the Tender Agent and any
• additional Paying Agent shall be under no duty to make any
investigation or inquiry as to any statements contained or matters
referred to in any such instrument, but may accept and rely upon
the same as conclusive evidence of the truth and accuracy of such
statements. Neither the Trustee, the Tender Agent nor any Paying
Agent shall be bound to recognize any person as an owner of Bonds
or to take any action at such person's request unless satisfactory
evidence of the ownership of such Bond shall be furnished to such
entity.
Section 1005. Dealings in Bonds. The Trustee, the
Tender Agent and any additional Paying Agent, in its individual
capacity, may in good faith buy, sell, own, hold and deal in any
of the Bonds issued hereunder, and may join in any action which any
owner may be entitled to take with like effect as if it did not act
in any capacity hereunder. The Trustee, the Tender Agent and any
additional Paying Agent, in its individual capacity, either as
principal or Agent, may also engage in or be interested in any
financial or other transaction with the Authority, and may act as
depositary, trustee or Agent for any committee or body of owners
of Bonds secured hereby or other obligations of the Authority as
freely as if it did not act in any capacity hereunder.
Section 1006. Several Capacities. Anything in this
Indenture to the contrary notwithstanding, the same entity may
serve hereunder as the Trustee, the Tender Agent, the Paying Agent,
• the Registrar or the Remarketing Agent and in any other combination
of such capacities, to the extent permitted by law.
Section 1007. Intervention by Trustee. In any judicial
proceeding to which the Authority is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of owners of the Bonds, the Trustee may intervene
on behalf of Bondholders and, subject to the provisions of
Section 1001(k) hereof, shall do so if requested in writing by the
owners of at least 25% in aggregate principal amount of all Bonds
then outstanding with the consent of the Credit Facility Issuer
subject to Section 1401 hereof, or if requested in writing by the
Credit Facility Issuer (without any action on the part of the
Bondholders) subject to Section 1401 hereof. The rights and
obligations of the Trustee under this Section are subject to the
approval of a court of competent jurisdiction.
Section 1008. Successor Trustee by Merger or
Consolidation. Any corporation or association into which the
Trustee may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate
trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which it is
a party, provided such corporation or association is otherwise
• 91
eligible under Section 1009 hereof, shall be and become successor
• Trustee hereunder, vested with all of the title to the whole
property or trust estate and all the trusts, powers, discretion,
immunities, privileges and all other matters as was its predecessor
under this Indenture, without the execution or filing of any
instrument or any further act, deed or conveyance on the part of
any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 1009. Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall (a) be a
commercial bank or trust company organized under the laws of the
United States of America or the State of Indiana (other than the
Credit Facility Issuer), authorized to exercise corporate trust
powers, subject to supervision or examination by federal or state
authorities, (b) have a reported combined capital and surplus of
not less than $50,000,000, (c) agree with the Credit Facility
Issuer to act as custodian agent or bailee for the Credit Facility
Issuer with respect to Pledged Bonds, which agreement may be with
the Tender Agent and is satisfied by the Pledge Agreement, and
(d) have obtained all federal, state and local governmental,
public, and regulatory authority approvals, consents, notices,
authorizations, registrations, licenses, exemptions, and filings
that are required to have been obtained or made by Trustee with
respect to the authorization, execution, delivery, and performance
by, or the enforcement against or by, Trustee of the Indenture,
• which are in full force and effect and all conditions of such
approvals, consents, notices, authorizations, registrations,
licenses, exemptions, and filings have been fully complied with.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner provided in Section 910 hereof. No resignation or
removal of the Trustee and no appointment of a successor Trustee
shall become effective until the successor Trustee has accepted its
appointment under Section 1014 hereof and the Trustee has delivered
the Credit Facility then in effect, if any, to the successor
Trustee.
Section 1010. Resignation by the Trustee. Subject to
Section 1009 hereof, the Trustee and any successor Trustee may at
any time resign from the trusts created by this Indenture by
executing any instrument in writing resigning such trusts and
specifying the date when such resignation shall take effect, and
filing the same with the Authority -the Tender Agent, the
Remarketing Agent and the Credit Facility Issuer not less then
45 days before the date specified in such instrument when such
resignation shall take effect, but in no event shall such date of
resignation be effective prior to the appointment of a successor
Trustee, and by giving notice of such resignation by first class
mail, postage prepaid, not less than 20 days prior to such
resignation date, to each registered owner of Bonds then
outstanding, as shown by the Bond Register.
• 92
• Section 1011. Removal of the Trustee. Subject to
Section 1009 hereof, the Trustee may be removed at any time, with
the prior written consent of the. Credit Facility Issuer if subject
to Section 1401 hereof, by filing with the Trustee so removed, and
with the .Authority, the Tender Agent and the Remarketing Agent, an
instrument or instruments in writing, appointing a successor, or
an instrument or instruments in .writing, consenting to the
appointment by the Authority of a successor and accompanied by an
instrument of appointment by the Authority of such successor, and
in any event executed by the owners of not less than 51o in
aggregate principal amount of Bonds then outstanding or, if
applicable, executed by the Credit Facility Issuer subject to
Section 1401 hereof.
Section 1012. Ant ointment of Successor Trustee by the
Bondholders; Temporary Trustee. Subject. to Section 1009 hereof,
in case the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in the process of dissolution or
liquidation, or otherwise becomes incapable of acting hereunder,
or in case it shall be taken under the control of any public
officer or officers, or of a receiver appointed by a court, then
a vacancy shall forthwith and ipso facto exist in the office of
Trustee and a successor may be appointed by the owners of 51% in
aggregate principal amount of Bonds then outstanding, with the
prior written consent of the Credit Facility Issuer subject to
Section 1401 hereof, or by the Credit Facility Issuer. (without any
• action on the part of the Bondholders) subject to Section 1401
hereof, by filing with the Authority, the Tender Agent and the
Remarketing Agent an instrument or concurrent instruments in
writing signed by such owners, or by their attorneys in fact duly
authorized or by the Credit Facility Issuer, as the case may be;
provided, nevertheless, that in case of such vacancy the Authority
by an instrument executed and signed by its President and attested
by its Secretary-Treasurer or other designated officer of the
Authority under its seal, may appoint a temporary Trustee to fill
such vacancy until a successor Trustee shall be appointed by the
Bondholders or the Credit Facility Issuer in the manner above
provided; provided further, that if no permanent successor Trustee
shall have been appointed by the Bondholders or the Credit Facility
Issuer within the six calendar months next succeeding the month
during which the Authority appoints such a temporary Trustee, such
temporary Trustee shall without any further action on the part of
the Authority, the Bondholders or the Credit Facility Issuer become
the permanent successor Trustee. After any appointment by the
Authority as provided herein, the Authority shall cause notice of
such appointment to be given to the Remarketing Agent, the Tender
Agent, and each Rating Agency and to be given by first class mail,
postage prepaid, to all owners of Bonds. The foregoing
notwithstanding, any such temporary Trustee so appointed by the
Authority shall immediately and without further act be superseded
by any successor Trustee so appointed by such Bondholders or the
• 93
Credit Facility Issuer as provided above within the six calendar
• months next succeeding the month during which such temporary
Trustee is appointed.
Section 1013. Judicial Appointment of Successor Trustee.
In case at any time the Trustee shall resign and no appointment of
a successor Trustee shall be made pursuant to the foregoing
provisions of this Article X prior to the date specified in the
notice of resignation as the date when such resignation is to take
effect, the resigning Trustee may forthwith apply to a court of
competent jurisdiction for the appointment of a successor Trustee.
If no appointment of a successor Trustee shall be made pursuant to
the foregoing provisions of this Article X within six calendar
months after a vacancy shall have occurred in the office of
Trustee, any owner of Bonds or the Credit Facility Issuer (if the
Credit Facility is then in effect) may apply to any court of
competent jurisdiction to appoint a successor Trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor Trustee.
Section 1014. Concerning Any Successor Trustees. Every
successor Trustee appointed hereunder shall execute, acknowledge
and deliver to its predecessor and also to the Authority an
instrument in writing accepting such appointment hereunder, and
thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates,
• properties, rights, powers, trusts, duties and obligations of its
predecessor; but such predecessor shall, nevertheless, on the
written request of the Authority, or of its successor, execute and
deliver an instrument transferring to such successor Trustee all
the estates, properties, rights, powers and trusts of such
predecessor hereunder; and every predecessor Trustee shall deliver
all securities and moneys held by it as Trustee hereunder to its
successor. Should any instrument in writing from the Authority be
required by any successor Trustee for more fully and certainly
vesting in such successor the estate, rights, powers and duties
hereby vested or intended to be vested in the predecessor, any and
all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Authority. The resignation of
any Trustee and the instrument or instruments removing any Trustee
-and appointing a successor hereunder, together with all other
instruments provided for in this Article shall be filed and/or
recorded by the successor Trustee in each recording office, if any,
where this Indenture shall have been filed and/or recorded.
Section 1015. Successor Trustee as Trustee of Funds,
Paying Agent and Registrar. In the event of a change in the office
of Trustee, the predecessor Trustee which has resigned or been
removed shall cease to be Trustee of the Sinking Fund, Redemption
Fund, Construction Fund, Bond Purchase Fund and any other funds
provided hereunder and shall cease to be the Registrar and Paying
Agent for principal of, premium, if any, and interest on the Bonds,
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and the successor Trustee shall become such Trustee, Registrar and
• Paying Agent unless a separate Paying Agent or Agents are appointed
by the Authority in connection with the appointment of any
successor Trustee.
Section 1016. Designation and Succession of Paying
Agents; Appointment and Acceptance of Duties; Removal. (a) Subject
to Section 1017 hereof, the Trustee is hereby designated and. agrees
to act as principal-Paying Agent and as Registrar for and in
respect of the Bonds.
(b) The Authority may appoint one or more additional
Paying Agents for the Bonds. Any such Paying Agent shall be a
commercial bank with trust powers or trust company organized under
the laws of the United States of America or one of the states
thereof. Each Paying Agent other than the Trustee shall signify
its acceptance of the duties and obligations imposed upon it by the
Indenture by executing and delivering to the Authority and the
Trustee a written acceptance thereof. The Authority may remove any
Paying Agent other than the Trustee and any successors thereto, and
appoint a successor or successors thereto; provided that any such
Paying Agent designated by the Authority shall continue to be a
Paying Agent of the Authority for the purpose of paying the
principal of, premium, if any, and interest on the Bonds until the
designation of a successor as such Paying Agent. Each Paying Agent
is hereby authorized to pay or redeem Bonds when duly presented to
• it for payment or redemption, which Bonds shall thereafter be
delivered to the Trustee for cancellation.
(c) The Paying Agents shall enjoy the same protective
provisions in the performance of their duties hereunder as are
specified in Section 1001 hereof with respect to the Trustee
insofar as such provisions may be applicable.
Section 1017. Tender Agent. The Trustee may, at all
times on or before the final Conversion Date applicable to all of
the Bonds, appoint a Tender Agent with the power to act, on or
prior to such Conversion Date, on the Trustee's behalf and subject
to its direction in the authentication and delivery of the Bonds
and in connection with registration of transfers and exchanges,
tenders, redemptions, notices and purchases thereof and payments
thereon, as fully to all intents and purposes as though the Tender
Agent had been expressly authorized hereunder to authenticate,
deliver, pay, transfer and exchange Bonds; receive notices pursuant
to Section 501, purchase tendered Bonds and make payments on the
Bonds. The Trustee and the Tender Agent may enter into an
agreement whereby the Tender Agent agrees to calculate the interest
to be paid on each Interest Payment Date, and will relay such
information to the Trustee for its confirmation. In the absence
of such an agreement, the Trustee shall calculate such interest.
For all purposes, any such Tender Agent shall be deemed to be
acting solely as the Agent of the Trustee and the authentication,
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delivery, transfer or exchange of Bonds, receipt of notices
• pursuant to Section 501, purchase of tendered Bonds and payment of
Bonds by the Tender Agent pursuant to this Section shall be deemed
to be the authentication, delivery, transfer or exchange of Bonds,
receipt of such notices, purchase of tendered Bonds and payment of
Bonds by the Trustee. Such Tender Agent shall at all times be a
commercial bank with trust .powers or trust company organized under
the laws of the United States of America or one of the States
thereof, and shall at all times be an institution organized and
doing business under the laws of the United States or of any state
authorized under such laws to exercise corporate trust powers,
subject to supervision or examination by federal or state
authorities (a) with a combined capital and surplus of at least
$50,000,000 or (b) affiliated with and indemnified by the Trustee.
If such institution publishes reports of condition at least
annually pursuant to law or the requirements of such authorities,
then for the purposes of this Section the combined capital and
surplus of such institution shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. The appointment of a Tender Agent under
this Section shall be effective upon acceptance by the Tender Agent
and shall continue until the Trustee making such appointment shall
rescind such appointment or until the effective date of the
resignation or removal of such Trustee pursuant to Section 1010
or 1011 hereof. The Tender Agent may act through an agent
constituting a commercial bank with trust powers or trust company.
• If at any time on or prior to the final Conversion Date applicable
to all of the Bonds there is no Tender Agent, all references herein
to the Tender Agent shall be deemed to refer to the Trustee. The
Tender Agent shall be entitled to the same rights and shall be
subject to the same obligations hereunder as the Trustee, and shall
enjoy the same protective provisions in the performance of its
duties hereunder as are specified in Section 1001 hereof with
respect to the Trustee insofar as such provisions may be
applicable.
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The Trustee shall make such arrangements with the Tender
Agent, in addition to those made as provided herein, as are
necessary to be made and to be thereafter continued whereby funds
from the sources specified herein will be made available to pay
when due the principal and redemption price of, and interest on,
Bonds bearing interest at a Weekly Rate or an Adjustable Long Rate .
Section 1018. Remarketing Agent. The Authority shall
appoint a Remarketing Agent for the Bonds, and initially appoints
First Chicago Capital Markets, Inc. as Remarketing Agent. The
appointment of a different Remarketing Agent may be approved by the
Authority and approved by the Credit Facility Issuer, which
approvals. shall not be unreasonably withheld. The Remarketing
Agent shall designate its Principal Office to the Trustee, the
Authority, the Tender Agent and the Credit Facility Issuer and
signify its acceptance of the duties and obligations imposed upon
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it hereunder by a written instrument of acceptance delivered to the
• Authority, the Trustee and the Tender Agent under which the
Remarketing Agent will agree, particularly:
(a) to hold all moneys delivered to it for the purchase
of Bonds for the account of and for the benefit of the person or
entity which shall have so delivered such moneys until the Bonds
purchased with such moneys shall have been delivered to or for the
account of such person or entity; and
(b) to keep such books and records as shall be
consistent with prudent industry practice and to make such books
and records available for inspection by the Authority, the Trustee,
the Tender Agent and the Credit Facility Issuer at all reasonable
times.
The Authority shall cooperate with the Trustee, the
Tender Agent and the Credit Facility Issuer to cause the necessary
arrangements to be made and to be thereafter continued whereby
funds from the sources specified herein will be made available for
the purchase of Bonds presented at the Principal Office of the
Tender Agent and whereby Bonds, executed by the Authority and
authenticated by the Trustee or the Tender Agent, shall be made
available to the Remarketing Agent to the extent necessary for
delivery pursuant to Section 509 hereof.
• The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by this Indenture
by giving at least 30 days' notice to the Authority, the Credit
Facility Issuer the Trustee and the Tender Agent. The Remarketing
Agent may be removed at any time upon 30 days' notice, at the
direction of the Authority with the written consent of the Credit
Facility Issuer by an instrument, signed by the Authority, filed
with the Remarketing Agent, the Credit Facility Issuer, the Trustee
and the Tender Agent.
In the event of the resignation or removal of the
Remarketing Agent, the Remarketing Agent shall pay over, assign and
deliver any moneys and Bonds held by it in such capacity to its
successor or, i.f there be no successor, to the Trustee.'
In the event that the Authority shall fail to appoint a
Remarketing Agent hereunder, or in the event that the Remarketing
Agent shall resign, be removed or be dissolved, or if the property
or affairs of the Remarketing Agent shall be taken under the
control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and
the Authority shall not have appointed its successor as Remarketing
Agent, the Trustee, notwithstanding the provisions of the first
paragraph of this Section 1019, shall ipso facto be deemed to be
the Remarketing Agent for all purposes of this Indenture until the
appointment by the Authority of the Remarketing Agent or successor
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Remarketing Agent, as the case may be; provided, however, that the
• Trustee,. in its capacity as Remarketing Agent, shall not be
required to remarket Bonds, or to determine the interest rate on
the Bonds except in the manner provided in Article II hereof.
The Remarketing Agent for its own account or as broker
or agent for others may deal in Bonds and may do anything any other
Bondholder may do to the same extent as if the Remarketing Agent
were not serving as such.
Section 1019. Qualifications of Remarketing Agent. The
Remarketing Agent shall have a capitalization of at least
$30,000,000, shall be authorized by law to perform all the duties
contemplated by this Indenture to be performed by the Remarketing
Agent and shall have knowledge and experience in the remarketing
of securities such as the Bonds and a remarketing portfolio (at the
time of such appointment) of at least $100,000,000.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring
Consent of Bondholders. Subject to the limitation set forth in
Section 1102 hereof with respect to this Section 1101, the
• Authority and the Trustee may, without the consent of, or notice
to, any of the Bondholders, but only with the consent of the Credit
Facility Issuer (which consent shall not be unreasonably withheld),
enter into an indenture or indentures supplemental to this
Indenture, as shall not be inconsistent with the terms and
provisions hereof, for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission
in this Indenture;
(b) to grant to or confer upon the Trustee for the
benefit of the Bondholders any additional rights, remedies, powers
or authority that may lawfully be granted to or conferred upon the
Bondholders and the Trustee, or either of them;
(c) to assign and pledge under or subject to this
Indenture additional revenues, properties or collateral;
(d) to evidence the appointment of a separate Trustee
or the succession of a new Trustee hereunder;
(e) to permit the qualification of this Indenture under
the Trust Indenture Act of 1939, as then amended, or any similar
federal statute hereafter in effect or to permit the qualification
of the Bonds for sale under the securities laws of any state of the
United States;
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(f) to permit continued compliance with the Tax
Exemption Agreement;
(g) (i) to provide for uncertificated Bonds and
(ii) after the Conversion Date with respect to any of the Bonds,
to modify, amend or supplement this Indenture or any indenture
supplemental hereto in such manner as to permit the issuance of
coupon Bonds that bear interest at a Fixed Rate and to permit the
exchange of Bonds that bear interest at a Fixed Rate from
registered form to coupon form and vice versa;
(h) to provide for the refunding or advance refunding
of any Bonds, including the right to establish and administer an
escrow fund and to take related action in connection therewith;
(i) to implement a conversion of the interest rate on
all or any portion of the Bonds to a Fixed Rate, an Adjustable Long
Rate or a Weekly Rate, all as provided in Articles II and VI
hereof, including but not limited to modifying, amending or
supplementing the form of Bond to reflect, among other things, a
change in the designated title of the Bonds, the fixing of an
annual rate of interest, the termination of the rights of any owner
of Bonds to tender such Bonds for purchase and the fact that the
principal or purchase price of, or interest on, the Bonds is no
longer payable out of moneys drawn under the Credit Facility;
(j) to evidence or give effect to or facilitate the
delivery and administration under this Indenture of an Alternate
Credit Facility, including but not limited to such provisions as
are necessary to permit the issuer of such an Alternate Credit
Facility to provide credit support relating to payment of principal
of and interest on the Bonds and a separate issuer of another
Alternate Credit Facility to provide liquidity support relating to
payment of the purchase price of. Bonds delivered or deemed
delivered hereunder for purchase;
(k) to evidence or give effect to or facilitate the
delivery and administration under this Indenture of a stand-by
letter of credit, a line of credit, a bond purchase agreement or
an insurance policy or any other credit or liquidity device,
including but not limited to amending the definition of Alternate
Credit Facility to provide that both credit support and liquidity
support are not required;
(1) to effect changes in the Indenture so as to secure
or maintain ratings from each Rating Agency in both the highest
short-term or commercial paper debt rating category and also in
either of the two highest long-term debt rating categories of the
applicable Rating Agency or Agencies, which changes will not
restrict, limit or reduce the obligation of the Authority to pay
the principal of and premium, if any, and interest on the Bonds as
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provided in this Indenture or otherwise adversely affect the owners
• of the Bonds under this Indenture;
(m) to effect a change in the optional redemption
schedule for Bonds in a Fixed Mode or Adjustable Long Mode pursuant
to Section 511(a)(ii) or Section 511(a)(iii) hereof; and
(n) to make any other change that, in the judgment of
the Trustee, does not materially adversely affect the rights of any
Bondholders.
The Authority and the Trustee may not enter into an
Indenture or indentures supplemental to this Indenture pursuant to
paragraphs (g)(ii) of this Section 1101 unless they shall have
received an Opinion of Bond Counsel to the effect that the issuance
of coupon Bonds will not adversely affect the validity or
enforceability in accordance with their terms of such Bonds or
adversely affect any exemption for purposes of federal income
taxation to which the interest on the Bonds would otherwise be
entitled.
Section 1102. Supplemental Indentures Requiring Consent
of Bondholders. In addition to supplemental indentures covered by
Section 1101 hereof and subject to the terms and provisions
contained in this Section, and not otherwise, the owners of not
less than 51% in aggregate principal amount of the Bonds which are
• outstanding hereunder at the time of the execution of such
indenture or supplemental indenture, but only with the prior
written consent of the Credit Facility Issuer, or in case only
outstanding Bonds bearing interest at a Weekly Rate or an
Adjustable Long Rate are affected thereby the owners of not less
than 51% in aggregate principal amount of the Bonds bearing
interest at a Weekly Rate or an Adjustable Long Rate which are
outstanding at the time of such execution, but only with the prior
written consent of the Credit Facility Issuer, or in case only
outstanding Bonds bearing interest at a Fixed Rate are affected
thereby, the owners of not less than 51% in aggregate principal
amount of the Bonds bearing interest at a Fixed Rate which are
outstanding at the time of such execution, shall have the right,
from time to time, anything contained in this Indenture to the
contrary notwithstanding, to consent to and approve the execution
by the Authority and the Trustee of such other indenture or
indentures supplemental hereto as shall be deemed necessary and
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 Indenture or in any
supplemental indenture; provided, however, that nothing in this
Section contained or in Section 1101 hereof shall permit, or be
construed as permitting, a supplemental indenture to effect:
(i) an extension of the Maturity or reduction in the principal
amount of, or reduction in the rate or extension of the time of
paying interest on, or reduction of any premium payable on the
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redemption of, any Bonds, without the consent of the owners of such
• Bonds; (ii) a reduction in the amount or extension of the time of
any payment required to be made to or from the Sinking Fund
(including the LOC Interest Sub-account or the LOC Principal Sub-
account); (iii) the creation of any lien prior to or on a parity
with the lien of this Indenture on the property described in the
Granting Clauses of this Indenture or the deprivation of any
Bondholders of the lien created by this Indenture on such property,
without the consent of .the owners of all the Bonds at the time
outstanding; (iv) a reduction in the aforesaid aggregate principal
amount of Bonds the owners of which are required to consent to any
such supplemental indenture, other than liens in favor of the
Credit Facility Issuer, without the consent of the owners of all
the Bonds at the time outstanding which would be affected by the
action to be taken; (v) a modification of the rights, duties or
immunities of the Trustee, without the written consent of the
Trustee; or (vi) a change in the purchase price of a Tendered Bond.
If at any time the Authority shall request the Trustee
to enter into any such supplemental indenture for any of the
purposes of this Section, the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, cause notice
of the proposed execution of such supplemental indenture to be
mailed by registered or certified mail to the registered owners of
the Bonds at their addresses as the same shall appear on the Bond
Register. .Such notice shall briefly set forth the nature of the
proposed supplemental indenture and shall state that copies thereof
• are on file at the Principal 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
such notice, and any such failure shall not affect the validity of
such supplemental indenture when consented to and approved as
provided in this Section. If the owners of the requisite principal
amount of Bonds which are outstanding hereunder at the time of the
execution of any such supplemental indenture shall have consented
to and approved the execution thereof as herein provided, no owner
of any Bond shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any
manner to question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Authority from executing the
same or from taking any action pursuant to the provisions thereof.
Upon the execution of any such supplemental indenture as in this
Section permitted and provided, this Indenture shall be and be
deemed to be modified and amended in accordance therewith.
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ARTICLE XII
• SATISFACTION OF THE INDENTURE
Section 1201. Provision for Payment. If the Authority
shall pay or provide for the payment of the entire indebtedness on
all Bonds outstanding in any one or more of the following ways:
(a) by paying or causing to be paid the principal of
(including redemption premium, if any) and interest on all Bonds
outstanding, as and when the same become due and payable;
(b) by depositing with, the Trustee, in trust, at or
before Maturity, moneys, which shall be moneys except in the case
of moneys deposited to provide for payment of Bonds bearing
interest at a Fixed Rate or Pledged Bonds, in an amount sufficient
to pay or redeem (when redeemable) all Bonds outstanding (including
the payment of premium, if any, and interest payable on such Bonds
to the Maturity or redemption date thereof), provided that such
moneys, if invested, shall be invested in Government Obligations
which are not callable or subject to prepayment prior to the date
the moneys therefrom are anticipated to be required (purchased with
moneys except in the case of securities deposited to provide for
the payment of Bonds bearing interest at a Fixed Rate or Pledged
Bonds) in an amount, without consideration of any income or
• increment to accrue thereon, sufficient to pay or redeem (when
redeemable) and discharge the indebtedness on all Bonds outstanding
at or before their respective Maturity;
(c) by delivering to the Trustee, for cancellation by
it, all Bonds outstanding; or
(d) by depositing with the Trustee, in trust, Government
Obligations which are not callable or subject to prepayment prior
to the date the moneys therefrom are anticipated to be required
(purchased with moneys except in the case of securities deposited
to provide for the payment of Bonds bearing interest at a Fixed
Rate or Pledged Bonds) in such amount as will, together with the
income or increment to accrue thereon, without consideration of any
reinvestment thereof, and with any uninvested cash, be fully
sufficient to pay or redeem (when redeemable) and discharge the
indebtedness on all Bonds at or before their respective Maturity
dates;
and if the Authority shall pay or cause to be paid all other sums
payable hereunder by the Authority and if all obligations payable
with respect to the Credit Facility Agreement have been paid in
full to the satisfaction of the Credit Facility Issuer and the
Credit Facility shall have been returned to the Credit Facility
Issuer for cancellation, then and in that case this Indenture and
the estate and rights granted hereunder shall cease, determine and
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•
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become null and void, and thereupon the Trustee shall, upon Written
Request of the Authority, and upon receipt by the Trustee of a
Certificate of an Authorized Officer and an opinion of Independent
Counsel, each stating that in the opinion of the signers all
conditions precedent to the satisfaction and discharge of this
Indenture have been complied with, forthwith execute proper
instruments acknowledging satisfaction of and discharging this
Indenture and the lien hereof. In the event all amounts are paid
other than amounts owed to the Credit Facility Issuer, the Trustee
shall assign, transfer and turn over to the Credit Facility Issuer
(to the extent of the amount, if any, certified in writing by the
Credit Facility Issuer to the Trustee to be payable under the
Credit Facility Agreement) and if no amounts are owed to the Credit
Facility Issuer then to the Authority (if consented to in writing
by the Credit Facility Issuer) the trust estate hereunder,
including, without limitation, any surplus in the Sinking Fund and
any balance remaining in any other Fund created under this
Indenture (other than said Government Obligations or other moneys
deposited in trust as above provided) and surrender the Credit
Facility to the Credit Facility Issuer in accordance with the terms
thereof if not previously surrendered. The satisfaction and
discharge of this Indenture shall be without prejudice to the
rights of the Trustee to charge and be reimbursed by the Authority
for any expenditures which it may thereafter incur in connection
herewith. The provisions of subparagraphs (b) and (d) of this
paragraph shall only apply if (x) such Bond matures or is called
for redemption prior to the next date upon which such Bond is
subject to purchase pursuant to Section 501, 502, 504, 505 or 506
hereof, and (y) the Authority waives, to the satisfaction of the
Trustee, its right to convert the method for determining the
interest rate borne by such Bond pursuant to Sections 601, 602
and 603 hereof.
The Authority may at any time surrender to the Trustee
for cancellation by it any Bonds previously authenticated and
delivered, which the Authority may have acquired in any manner
whatsoever (other than Pledged Bonds, unless the Credit Facility
Issuer shall have consented thereto), and such Bonds, upon such
surrender and cancellation, shall be deemed to be paid and retired.
Section 1202. Liability of Authority Not Discharged.
Upon the deposit with the Trustee, in trust, at or before Maturity,
of moneys or Government Obligations in the necessary amount to pay
or redeem all outstanding Bonds (whether-upon or prior to Maturity
or the redemption date of such Bonds) and compliance with the other
payment requirements of Section 1201 hereof, provided that if such
Bonds are to be redeemed prior to the Maturity thereof, notice of
such redemption shall have been given as in Article V herein
provided, or provisions satisfactory to the Trustee shall have been
made for the giving of such notice, and subject to the provisions
of Section 1204 hereof, this Indenture may be discharged in
accordance with the provisions hereof but the liability of the
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Authority in respect of such Bonds shall continue provided that the
• owners thereof shall thereafter be entitled to payment only out of
the moneys or the Government Obligations deposited with the Trustee
as aforesaid and the lien of this Indenture to the extent that it
secures the interests of the Credit Facility Issuer shall continue
until all amounts due and owing or to be due and owing at any time
to the Credit Facility Issuer under the Credit Facility Agreement
have been paid in full to the satisfaction of the Credit Facility
Issuer and the Credit Facility shall have been returned to the
Credit Facility Issuer for cancellation.
Section 1203. Provision for Payment of a Portion of
Bonds. If the Authority shall pay or provide for the payment of
the entire indebtedness on any portion of the Bonds, in one or more
of the following ways:
(a) by paying or causing to be paid the principal of
(including premium, if any) and interest on such portion of the
Bonds as and when the same shall become due and payable;
(b) by depositing with the Trustee, in trust, at or
before Maturity, moneys in an amount sufficient to pay or redeem
(when redeemable) such portion of the Bonds (including the payment
of premium, if any, and interest payable on such portion of the
Bonds to the Maturity or redemption date thereof), provided that
such moneys, if invested, shall be invested in Government
Obligations which are not callable or subject to prepayment prior
to the date the moneys therefrom are anticipated to be required in
an amount, without consideration of any income or increment to
accrue thereon, sufficient to pay or redeem (when redeemable) and
discharge the indebtedness on such portion of the Bonds at or
before their respective Maturity dates;
(c) by delivering to the Trustee, for cancellation by
it, all Bonds outstanding or any such portion thereof; or
(d) by depositing with the Trustee, in trust, Government
Obligations which are not callable or subject to prepayment prior
to the date the moneys therefrom are anticipated to be required in
such amount as will, together with the income or increment to
accrue thereon, without consideration of any reinvestment thereof,
and with any uninvested cash, be fully sufficient to pay or redeem
(when redeemable) and discharge the indebtedness on all Bonds or
any such portion thereof at or before their respective Maturity
dates;
and if the Authority shall also pay or cause to be paid all other
sums payable hereunder by the Authority with respect to such
portion of the Bonds, and, if such portion of the Bonds are to be
redeemed prior to the Maturity thereof, notice of such redemption
shall have been given as in Article V of this Indenture provided
or provisions satisfactory to the Trustee shall have been made for
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the giving of such notice, such portion shall cease to be entitled
• to any. lien, benefit or security under this Indenture. The
liability of the Authority in respect of such Bonds or such portion
thereof shall continue but the owners thereof shall thereafter be
entitled to payment (to the exclusion of all other Bondholders)
only out of the moneys or Government Obligations deposited with the
Trustee as aforesaid and the lien of this Indenture to the extent
that it secures the interests of the Credit Facility Issuer shall
continue until all amounts due and owing or to be due and owing at
any time to the Credit Facility Issuer under the Credit Facility
Agreement have been paid in full to the satisfaction of the Credit
Facility Issuer and the Credit Facility shall have been returned
to the Credit Facility Issuer for cancellation. The provisions of
subparagraphs (b) and (d) of this paragraph shall only apply if
(x) such Bond matures or is called for redemption prior to the next
date upon which such Bond is subject to purchase pursuant to
Sections 501, 502, 504, 505 and 506 hereof, and (y) the Authority
waives, to the satisfaction of the Trustee, its right to convert
the method for determining the interest rate borne by such Bond
pursuant to Sections 601, 602 and 603 hereof.
Section 1204. When Refunding is Not Permitted. None of
the Bonds outstanding hereunder may be refunded as aforesaid nor
may this Indenture be discharged if under any circumstances such
refunding or discharge would result in the loss of
exclusion from Gross Income under Section 103 of the Code to which
the interest on such Bonds would otherwise be entitled. As a
• condition precedent to the advance refunding of any Bonds
outstanding hereunder, the Trustee shall obtain an Opinion of Bond
Counsel to the effect that such advance refunding will not result
in the loss of any exclusion from Gross Income under
Section 103 of the Code to which the interest on such Bonds would
otherwise be entitled, notwithstanding the satisfaction and
discharge of this Indenture.
ARTICLE XIII
REFERENCES TO CREDIT FACILITY ISSUER; MANNER OF EVIDENCING
OWNERSHIP OF BONDS
Section 1301. References to Credit Facility Issuer. At
any time when there is no Credit Facility in effect, references to
the Credit Facility Issuer shall be ineffective, except with
respect to amounts payable to the Credit Facility Issuer which have
not been paid and except that such references shall remain in full
force and effect with respect to Bonds bearing interest at a Weekly
Rate or an Adjustable Long Rate notwithstanding that some Bonds may
concurrently bear interest at a Fixed Rate and not be entitled to
the benefits provided by the Credit Facility; provided that, if an
Alternate Credit Facility has been delivered in accordance
herewith, references to the Credit Facility Issuer herein shall,
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unless the context clearly requires otherwise, refer to the issuer
• of such Alternate Credit Facility; and provided further, however,
that nothing herein shall be construed to deprive the Credit
Facility Issuer of its rights under the Credit Facility Agreement.
In the event the Credit Facility Issuer shall be the
registered holder of any Bonds issued hereunder, it shall be
treated for all purposes of this Indenture as any other Bondholder,
including but not limited to consenting to supplements and
amendments and directing the Trustee upon the occurrence of certain
Events of Default hereunder.
If an Event of Default shall have occurred hereunder due
to a Wrongful Dishonor the rights of such Credit Facility Issuer
under Article VIII relating to actions taken by the Trustee with
respect to Events of Default,' hereunder shall be suspended until
such failure shall be cured.
Section 1302. Proof of Ownership. Any request,
direction, consent or other instrument required by this Indenture
to be signed and executed by Bondholders may be in any number of
concurrent writings of similar tenor and may be signed or executed
by such Bondholders in person or by such Bondholder's agent
appointed in writing. Proof of the execution of any such request,
direction, consent or other instrument or of the writing appointing
any such agent and of the ownership of Bonds, if made in the
following manner, shall be sufficient for any of the purposes of
• this Indenture and shall be conclusive in favor of the Trustee, the
Tender Agent and the Authority, with regard to any action taken by
them, or any of them, under such request or other instrument,
namely:
(a) the fact and date of the execution by any person of
any such writing may be proved by the certificate of any officer
in any jurisdiction who by law has power to take acknowledgments.
in such jurisdiction, that the person signing such writing
acknowledged before the officer the execution thereof, or by an
affidavit of a witness of such execution; and
(b) the ownership of Bonds and the amounts and
registration numbers of such Bonds and the date of holding the same
shall be proved by the Bond Register.
Any action taken or suffered by the Trustee or the Tender
Agent pursuant to any provision of this Indenture, upon the request
or with the assent of any person who at the time is the owner of
any Bond or Bonds, shall be conclusive and binding upon all future
owners of the same Bond or Bonds.
In determining whether the owners of the required
principal amount of Bonds outstanding have taken any action under
this Indenture, Bonds owned by the Authority or any person
• 106
controlling, controlled by or under common control with the
Authority shall be disregarded and deemed not to be outstanding,
except that for the purpose of determining whether the Trustee or
the Tender Agent shall be protected in relying on any such action,
only such Bonds which the Trustee or the Tender Agent knows are so
owned shall be so disregarded. Bonds so owned which have been
pledged in good faith (including but not limited to the Pledged
Bonds) may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee or the Tender Agent the
pledgee's right so to act with respect to such Bonds and that the
pledgee is not the Authority or any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Authority, except that the Trustee and the Tender
Agent shall accept such right of the Credit Facility Issuer with
respect to the Pledged Bonds. In case of a dispute as to such
right, any decision by the Trustee or the Tender Agent taken upon
the advice of counsel shall be full protection to the Trustee or
the Tender Agent, as the case may be.
ARTICLE XIV
MISCELLANEOUS
Section 1401. Limitation of Rights. With the exception
of rights herein expressly conferred, nothing expressed or
mentioned in or to be implied from this Indenture or the Bonds is
• intended or shall be construed to give to any person other than the
Authority, the Trustee, the Tender Agent, the Remarketing Agent,
the Credit Facility Issuer and the owners of the Bonds, any legal
or equitable right, remedy or claim under or in respect to this
Indenture or any covenants, conditions and provisions herein
contained; this Indenture and all of the covenants, conditions and
provisions hereof being intended to be and being for the sole and
exclusive benefit of the Authority, the Trustee, the. Tender Agent,
the Remarketing Agent, the Credit Facility Issuer and the owners
of the Bonds as herein provided.
Section 1402. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions, or in
all cases because it conflicts with any other provision or
provisions or any constitution or statute~or rule of public policy,
or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering
any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever.
• 107
The invalidity of any one or more phrases, sentences,
clauses or Sections in this Indenture contained shall not affect
• the remaining portions of this Indenture or .any part thereof.
Section 1403. Notices. Except as otherwise provided in
this Indenture, all notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given
when in writing and mailing by first class mail, postage prepaid,
with proper address as indicated below. Any of such parties may,
by written notice given by such party to the others, designate any
address or addresses to which notices, certificates or other
communications to them shall be sent when required as contemplated
by this Indenture. Until otherwise provided by the respective
parties, all notices, certificates and communications to each 'of
them shall be addresses as follows:
To the Authority:
South Bend Redevelopment Authority
1200 County-City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
With a copy to:
City Controller
City of South Bend, Indiana
• 1400 County-City Building
227 West Jefferson Boulevard
South Bend, Indiana 46601
Attention: General Counsel
(312) 793-5586
To the Trustee:
Norwest Bank Indiana, N.A.
Attention: Corporate Trust Department
112 West Jefferson Boulevard
Post Office Box 112
South Bend, Indiana 46634
To the Remarketing Agent:
First Chicago Capital Markets, Inc.
One First National Plaza
Suite 0826.
Chicago, Illinois 60670
Attention: Public Finance
Telephone: (312) 732-8702
• 108
To the Initial Credit Facility Issuer
(for all notices other than Credit
Facility draws or administration):
The Fuji Bank, Limited,-New York Branch
Two World Trade Center
New York, New York
Attention: Vice President and Manager,
Public Finance
Notwithstanding anything herein to the contrary, at such
time as all of the Bonds outstanding hereunder have been converted
to the Fixed Mode and all amounts owed to the Credit Facility
Issuer shall be paid in full and the Credit Facility shall have
been returned for cancellation, no notices shall be required to be
given hereunder to the Remarketing Agent, the Credit Facility
Issuer or the Tender Agent.
Section 1404. Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and
the same instrument.
Section 1405. Governing Law. This Indenture shall be
governed exclusively by and construed in accordance with the laws
of the State of Indiana.
• Section 1406. Payments Due on Non Business Days. In any
case where the date of maturity of interest on the Bonds, or
principal of the Bonds, or the date fixed for redemption of any
Bonds shall not be a Business Day, then. payment of such interest
or principal need not be made on such date but shall be made on the
next succeeding Business Day., with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and,
in the case of such payment, no interest shall accrue for the
period from and after such date.
Section 1407. Immunity of Officers Employees and
Members of Authority. No recourse shall be had for the payment of
the principal of or premium, if any, or interest on any of the
Bonds or for any claim based thereon or upon any obligation,
covenant or agreement in this Indenture contained against any past,
present or future officer, director, member, employee or agent of
the Authority, or any incorporator, officer, director, member,
trustee, employee or agent of any successor corporation or body
politic, as such, either directly or through the Authority or any
successor corporation or body politic, under any rule of law or
equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any
such incorporators, officers, directors, trustees, members,
employees or agents, as such, is hereby expressly waived and
• 109
released as a condition of and consideration for the execution of
,~ this Indenture and the issuance of any of the Bonds.
Section 1408. Additional Notices to Ratina Agencies.
The Trustee hereby agrees that if at any time (a) payment of
principal of and interest on the Bonds is accelerated pursuant to
the provisions of Section 803 hereof, (b) the Authority shall
redeem the entire principal amount of the Bonds outstanding
hereunder prior to Maturity, (c) a successor Trustee is appointed
hereunder, (d) any supplement to the Indenture or the Credit
Facility Agreement shall become effective or any party thereto
shall waive any provision of this Indenture, (e) any change in the
Remarketing Agent occurs, (f) any Conversion Date occurs, (g) the
Credit Facility then in effect expires or terminates or an
Alternate Credit Facility is delivered, (h) an Adjustable Long Mode
of greater than three years is established, (i) there is a change
in the Tender Agent, (j) on any Renewal Date there is a mandatory
purchase of Bonds pursuant to Section 504 hereof (k) there is a
change in Mode, (1) the Stated Expiration Date of the Credit
Facility is changed, or (m) the Bonds are prepaid in accordance
with Section 1201 hereof, then, in each case, the Trustee shall
promptly give notice to each Rating Agency, which notice in the
case of an event described in clause (d) of this Section 1407 shall
include a copy of any such supplement, amendment, modification,
alteration or waiver.
Section 1409. Unclaimed Moneys. In the event any Bonds
• shall not be presented for payment when the principal thereof
becomes due, either at maturity or at the date fixed for redemption
thereof or otherwise, if funds sufficient to pay such Bonds shall
have been made available to the Trustee for the benefit of the
holder thereof and shall have remained unclaimed for 3 years after
such principal or interest has become due and payable, such funds
shall be paid to the Credit Facility Issuer and then the Authority;
and all liability of .the Authority to the holder thereof for the
payment of such Bond shall forthwith cease, determine and be
completely discharged; provided, however, that the Trustee, before
being required to make any such payment to the Authority, may cause
to be published once in a financial newspaper or journal of general
circulation in New York, New York, notice that such moneys remain
unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any
unclaimed balance of such moneys then remaining will be paid to the
Authority. The cost of .such publication shall be paid from the
unclaimed funds so held by the Trustee. The obligation of the
Trustee under this Section to pay any such funds to the Authority
shall be subject to any provisions of law applicable to the Trustee
or to such funds providing other requirements for disposition of
unclaimed property.
Section 1410.- Trustee as Agent of Credit Facility
Issuer. The Trustee hereby agrees to act as agent or bailee of the
• 110
Credit Facility Issuer to the extent necessary to perfect the
,• Credit Facility Issuer's interest in Pledged Bonds and the funds
and accounts located by this Indenture.
IN WITNESS WHEREOF, the SOUTH BEND REDEVELOPMENT
AUTHORITY has caused these presents to be signed in its name and
on its behalf by its President and attested by its Secretary-
Treasurer and to evidence its acceptance of the trusts hereby
created Norwest Bank Indiana, N.A., has caused these presents to
be signed in its name and on its behalf by one of its Vice
Presidents and Trust Officers, its Corporate seal to be hereunto
affixed and the same to be attested by a , all
as of the day and year first above written.
SOUTH BEND REDEVELOPMENT AUTHORITY
By:
President
ATTEST:
• Secretary-Treasurer
• 111
~J
(SEAL)
Attest:
Its:
NORWEST BANK INDIANA, N.A.,
By:
Its:
STATE OF INDIANA )
SS:
ST. JOSEPH COUNTY )
Before me, the undersigned, a Notary Public in and for said
State, personally appeared Joseph Wroblewski and Mary O.
Ferlic, 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 June, 1994.
Witness my hand and notarial seal.
(Written Signature)
(SEAL)
(Printed Signature)
Notary Public
My Commission Expires:
My County of Residence is
• 112
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 Norwest Bank Indiana, N.A., and acknowledged the execution of
the foregoing Agreement for and on behalf of said Bank on this
day of , 1994.
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 Randolph R. Rompola, Esq., BAKER & DANIELS, 205
West Jefferson Boulevard, Suite 250, South Bend, Indiana 46601.
• 113
SCHEDULE I
,~
INITIAL TERMS OF BONDS
r
rrrompola\sthbend\hallofam\variable.hal\trinden.617;drf;6-21-94
114
NEW ISSUE -BOOK-ENTRY-ONLY -~
RATINGS:
Standard & Poor's:
See "RATINGS" herein
In tha opinion of llaker~'nie]s, South Bend, Indian's, bond counsel, under existing laws, regulations, published rulings, and judicial decisions, interest on the Bands is excludable from gross income under
'on 103 of the Internal Revenue Code of 1986, as amended and in effect on fha date of delivery of the Bonds (the "Code"), for federal income tax purposes. Such exclusion is conditioned on the oontinuiog
pliance with ceAain tax covenants made by the South Bend Redevelopmwt Authority and descn'bed further herein. In the opinion of Baker 8c IYsniels, under existing law, regulations, published rulings,
'udicial decisions, interest oa the Banda is exempt from taxition in the Slats of Indiana for all purposes except the Indiam fmaacial institutions tax and the Indiana inheritance tax. See "TAX MATTERS'
in. The Bonds will not be designated as qualified tax-exempt obligations according to the provisions of Section 265(6)(3) of the Code.
~~..
$17,950,000
South Bend Redevelopment Authority
Variable Rate Demand Lease Rental Revenue Bonds of 1994
(College Football Hall of Fame Project)
Dated Date: Date of Issuance Due: February 1, 2019
Price: 100°h
The South Bend Redevelopment Authority Variable Rate Demand Lease Rental Revenue Bonds of 1994 (College Football Hall of Fame Project) (the
"Bonds") to be issued by the South Bend Redevelopment Authority (the "Authority") will be issued under a Tntst Indenture, dated as of June 1, 1994 (the "Indenture"),
between the Authority and Norwest Bank Indiana, N.A., as trustee (the "Trustee"), and pursuant to Indiana Code 36-7-14.5, as amended. The Bonds are issuable
only as fully registered bonds in denominations of $100,000 or any integral multiple thereof (except for one Bond issuable in any amount greater than $100,000) for
the Bonds bearing interest at a Weekly or Adjustable Long Rate, and in denominations of $$,000 or any integral multiple thereof for Bonds bearing interest at a Fixed
Rate. When issued, the Bonds will be registered in the name of Cede & Co., as nominee for The Depository Trust Company, New York, New York ("DTC").
Purchases of beneficial interests in the Bonds will be made in book-entry-only form. Purchasers of beneficial interests in the Bonds (the "Beneficial Owners") will
not receive physical delivery of certificates representing their interests in the Bonds. Interest together with the principal of and redemption premium, if any, on the
Bonds and the purchase price of Tendered Bonds wilt be paid directly to DTC, so long as the Bonds are held in book-entry-only form. Payment of the final
disbursements of interest on the Bonds, together with. the principal of and redemption premium, if any, on the Bonds to the Beneficial Owners will be the responsibility
of DTC, the DTC Participants and the Indirect Participants, all as defined and more fully described herein. See "BOOK ENTRY-ONLY SYSTEM."
Interest on the Bonds is subject to a maximum rate of 12% per annum. Subject to the conditions set forth in the Indenture, each Bond may operate a[ any
time in one of three Modes: a Weekly Mode, an Adjustable Long Mode, or a Fixed Mode. Bonds in any Mode may, from time to time, in accordance with the
Indenture, be converted to one or more of the other Modes; however, Bonds in a Fixed Mode shall remain in such Mode. Generally, as described herein, the Modes
have different operating features. While any single Bond may be in only one Mode at any time, other Bonds may operate in different Modes at the same time.
Information regarding the Modes, interest rates, and Adjustment Dates can be obtained from First Chicago Capital Markets, Inc., the "Remarketing Agent", upon
request as described herein. The Bonds will be issued initially in the Weekly Mode. See "THE BONDS-Modes of Operation of Bonds".
The Bonds in the Weekly Mode and Adjustable Long Mode will be supported initially by a transferable irrevocable direct pay letter of credit (the "Initial
edit Facility") issued in favor of the Trustee by
--- THE FUJI BANK, LIlVIITED, NEW YORK BRANCH
The Trustee is authorized to draw upon the Initial Credit Facility an amount sufficient to pay principal of, and up to 57 days' interest on, and the purchase
price for Bonds when due upon redez: ption, acceleration, purchase or otherwise. The Initial Credit Facility shall expire on , 1999 (subject to earlier
termination) but may be extended or replaced as set forth herein. See "LETTER OF CREDIT" and "RENEWAL CREDIT FACILITIES; ALTERNATE CREDIT
FACILITIES". Bonds in a Fixed Mode shall not be supported by any Credit Facility.
The Bonds are being issued to finance O the construction of a college football hall of fame in South Bend, Indiana and refunding certain bond anticipation
notes issued in connection with such project, (ii) the Reserve Amount (as hereinafter defined) to be deposited into the Reserve Fund (as hereinafter defined), (ii)
capitalized interest on the Bonds in the amount of $ ,and (v) the costs of issuance of the Bonds. See "THE PROJECT" and "SOURCES AND
USES OF BOND PROCEEDS".
The Bonds are special obligations of the Authority and are payable solely from and secured exclusively by a lien upon the Pledged Funds, as defined
herein to include fiends drawn tinder the Credit Facility then in effect, ptirsttant to the Indenture, and the Authority is not under any obligation to pay the
Bonds except from the Pledged Funds. The Bonds and interest on the Bonds are not a debt or a general obligafion of the Authority or the City of South Bend,
Indiana (the "City"), nor a charge, a lien or an encumbrance, legal or equitable, upon property of the Authority or the City or upon income, receipts or
revenues of the Authority or the City, other than. those revenues that have been specifically pledged to the payment of the Bonds. The Authority has no taxing
power. See "RISK FACTORS" and "SECURITY AND SOURCES OF PAYMENT FOR THE BONDS".
The Bonds are subject to optional redemption, extraordinary optional redemption and mandatory sinking fund redemption prior to maturity as described
herein. In addition, Bonds in the Weekly Mode are subject to optional purchase, and Bonds in the Weekly Mode or an Adjustable Long Mode are subject to mandatory
purchase, at the times and on the conditions described herein. See "THE BONDS". The Bonds are subject to acceleration of maturity upon the occurrence of certain
events, including events of default under a Reimbursement Agreement related to the Initial Credit Facility.
This cover page contains certain information for quick reference only. It is not a summary of this issue. Investors must read the entire Official Statement
to obtain information essential to making an informed investment decision.
The Bonds are o,~ered when, as and if issued by the Authority and received by the Underwriters, subject to prior sale, to withdrawal or mod~eation of the
r without notice, and to the approval of legality by Baker & Daniels, South Bend, Indiana, bond counsel. Certain legal matters will be passed on for the Authority
the Commission by the corporation counsel for the City of South Bend, Indiana, and for the Underwriters by their counsel, Barnes & Thornburg, South Bend,
inns. It is anticipated that the Bonds will be available for delivery through the facilities of DTC in New York, New York, on or about June 29, 1994.
FIRST CHICAGO CAPITAL MA1tKF.TS, INC.
NORWFST INVESTMENT SERVICES, INC.
1994
NO DEALER, BROKER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED BY THE AUTHORITY, THE
UNDERWRITERS ORTHE FUJI BANK, LIMITED, NEW YORK BRANCH (THE "INITIAL CREDIT FACII,TTY ISSUER") TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS OFFICIAL STATEMENT,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE AUTHORITY, THE UNDERWRITERS OR THE INITIAL CREDIT FACII.TTY ISSUER. THIS OFFICIAL
STATEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE
BE ANY SALE OF THE BONDS BY ANY PERSON, IN ANY JURISDICTION IN WHICH Tf IS UNLAWFUL FOR SUCH PERSON TO
MAKE SUCH OFFER, SOLICITATION OR SALE. THE INFORMATION SET FORTH HEREIN HAS BEEN OBTAINED FROM THE
AUTHORITY, THE INITIAL CREDTf FACILITY ISSUER AND OTHER SOURCES WHICH ARE BELIEVED TO BE RELIABLE, BUT
TT IS NOT GUARANTEED AS TO ACCURACY OR COMPLETENESS, AND IS NOT TO BE CONSTRUED AS A REPRESENTATION
BY THE UNDERWRITERS. THE INFORMATION, ESTIMATES AND EXPRESSIONS OF OPINION IN THIS OFFICIAL STATEMENT
ARE SUBJECT TO CHANGE WITHOUT NOTICE, AND NETTHERTHE DELIVERY OF THIS OFFICIAL STATEMENT NOR ANY SALE
OF THE BONDS SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IlvIPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE AUTHORITY, THE INITIAL CREDIT FACII.TTY ISSUER OR ANY OTHER PERSON DESCRIBED HEREIN
SUBSEQUENT TO THE DATE AS OF WHICH SUCH INFORMATION IS PRESENTED.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS
WHICH STABII.IZE OR MAINTAIN THE MARKET PRICE OF THE BONDS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE
PREVAII. IN THE OPEN MARKET. SUCH STABII.IZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
THE BONDS HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE ISSUER
AND THE TERMS OF THE OFFERING, INCLUDING THE MERIT AND RISK INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE,
THE FOREGOING AUTHORTTIFS HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
SPECIAL DISCLOSURE STATEMENT OF FIRST CHICAGO CAPITAL MARKETS, INC.
FIRST CHICAGO CAPITAL MARKETS, INC. ("FCCM") IS ABROKER-DEALER AND A SUBSIDIARY OF FIRST CHICAGO
CORPORATION. ANY OBLIGATIONS OF FCCM ARE THE SOLE OBLIGATIONS OF FCCM AND DO NOT CREATE ANY
• OBLIGATIONS ON THE PART OF ANY AFFII.IATE OF FCCM, INCLUDING THE FIRST NATIONAL BANK OF CHICAGO.
SPECIAL DISCLOSURE STATEMENT OF NORWEST INVESTMENT SERVICES, INC.
NORWEST INVESTMENT SERVICES, INC. ("NISI") IS A SEPARATE SUBSIDIARY OF NORWEST CORPORATION AND
IS NOT A BANK. TT IS A REGISTERED BROKER/DEALER AND A MEMBER OF THE NASD AND IS ALSO A MEMBER OF THE
SECURITY INVESTORS PROTECTION CORPORATION. NISI IS AN AFFII.IATE OF BANKS OWNED BY NORWEST CORPORATION
INCLUDING NORWEST BANK INDIANA, N.A. ANY OBLIGATIONS OF NISI ARE THE SOLE RESPONSIBII.TTY OF NISI AND DO
NOT CREATE ANY OBLIGATIONS ON THE PART OF ANY OTHER AFFII.IATE OF NISI. NO AFFII.IATE OF NISI IS RESPONSIBLE
FOR THE SECURITIES SOLD BY NISI. UNLESS SO INDICATED, ANY INVESTMENTS RECOMMENDED, OFFERED OR SOLD BY
NISI ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION. FROM TIME TO TIME NORWEST BANK
INDIANA, N.A. AND OTHER BANKS AFFII,IATED WITH NISI MAY LEND MONEY TO AN ISSUER OF SECURITIES THAT ARE
UNDERWRITTEN OR DEALT IN BY NISI. WITHIN THE PROSPECTUS OR OTHER DOCUMENTATION PROVIDED WITH EACH
SUCH UNDERWRITING OR DEALING THERE WII.L BE A DISCLOSURE OF ANY MATERIAL LENDING RELATIONSHIP BY AN
AFFII.IATE OF NISI WITH SUCH AN ISSUER AND WHETHER PROCEEDS OF SUCH AN ISSUANCE OF SUCH SECURITIES WII.L
BE USED BY THE ISSUER TO REPAY ANY OUTSTANDINC'i. INDEBTEDNESS TO ANY NISI AFFII.IATE. FROM TIME TO TIME
NISI MAY PARTICIPATE IN A PRIMARY OR SECONDARY DISTRIBUTION OF SECURITIES BOUGHT OR SOLD BY A PURCHASER
OF BONDS. NISI AND TTS AFFII.IATES MAY ALSO ACT AS AN INVESTMENT ADVISOR TO ISSUERS WHOSE SECURITIES MAY
BE SOLD TO A PURCHASER OF BONDS.
-11-
~,_,~:., TABLE OF CONTENTS
~. Page
~'
INTRODUCTION ....................................................... -1-
RISK FACTORS ....................................................... 3-
BOOK-ENTRY-ONLY SYSTEM ............................................. -3-
REMARKETING AGENT ..................... .......................... -5-
THE BONDS ......................... ............................... -5-
LETTER OF CREDIT .................................................... -14-
RENEWAL CREDTT FACILITIES; ALTERNATE CREDIT FACILITIES .................... -16-
SECURITY AND SOURCES OF PAYMENT FOR THE BONDS ......................... -17-
THE PROJECT ........................................................ -17-
SOURCES AND USES OF BOND PROCEEDS .................................... -18-
THE REDEVELOPMENT DISTRICT .......................................... -18-
LITIGATION ......................................................... -19-
TAX MATTERS ....................................................... -19-
LEGAL MATTERS ...................................................... -20-
ENFORCEABILITY OF REMEDIES ........................................... -21-
RATINGS ............................................................ 21-
UNDERWRTTING ...................................................... -21-
MISCELLANEOUS ...................................................... -21-
APPENDIX A -INFORMATION CONCERNING THE INITIAL CREDIT FACILTTY ISSUER ...... A-1
APPENDIX B -FORM OF BOND COUNSEL OPINION .............................. B-1
APPENDIX C -SUMMARY OF CERTAIN LEGAL DOCUMENTS
(Indenture, LEASE, REIMBURSEMENT AGREEMENT) ............................. C-1
APPENDIX D -THE REDEVELOPMENT DISTRICT ................................ D-1
• APPENDIX E -DEFINITIONS OF CERTAIN TERMS ............................... E-1
~" ~'
r ~~
.~
-iii-
OFFICIAL STATEMENT
$17,950,000
South Bend Redevelopment Authority
Variable Rate Demand Lease Rental Revenue Bonds of 1994
(College Football Hall of Fame Project)
INTRODUCTION
The purpose of this Official Statement, which includes the cover page and the appendices, is to set forth
information concerning the issuance and sale by the South Bend Redevelopment Authority (the "Authority") of
$17,950,000 aggregate principal amount of its South Bend Redevelopment Authority Variable Rate Demand Lease
Rental Revenue Bonds of 1994 (College Football Hall of Fame Project) (the "Bonds"). This Official Statement is
intended for use only in connection with Bonds that are in the Weekly Mode or Adjustable Long Mode (both defined
herein) and secured by a Credit Facility (defined herein).
The Authority is a body corporate and politic, separate from the City of South Bend, Indiana (the "City"),
and is an instrumentality of the City organized and existing under Indiana Code 36-7-14.5, as amended (the "Act"),
with the power to own local public improvements and lease them to the South Bend Redevelopment Commission
(the "Commission"). The Commission is the governing body of the Redevelopment District of the City (the
"Redevelopment District"), organized and existing under Indiana Code 36-7-14, as amended (the "Redevelopment
Act"), with the power to enter into leases of local public improvements from the Authority. See "THE
REDEVELOPMENT DISTRICT".
. The Bonds are being issued under the Act, and pursuant to a Indenture, dated as of June 1, 1994 (the
"Indenture") between the Authority and Norwest Bank Indiana, N.A., as trustee (the "Trustee"): When issued, the
Bonds will be registered in the name of and held by Cede & Co., as nominee for The Depository Trust Company,
New York, New York ("DTC"). Purchases of beneficial interests in the Bonds will be made in book-entry-only
form. Purchasers of beneficial interests in the Bonds (the "Beneficial Owners") will not receive physical delivery
of certificates representing their interests in the Bonds. For so long as the Bonds are held in book-entry-only form,.
payments of principal of and redemption premium, if any, and interest on the Bonds and the payment of the
purchase price of Bonds will be paid by the Trustee only to DTC or its nominee. Neither the Authority nor the
Trustee will have any responsibility for a Beneficial Owner's receipt from DTC or its nominee, or from any DTC
Participant (as hereinafter defined) or Indirect Participant (as hereinafter defined), of any payments of principal of
or redemption premium, if any, or interest on any Bonds or the purchase price of any Bonds. See "BOOK-ENTRY-
ONLY SYSTEM. "
Interest on the Bonds is subject to a maximum rate of 12% per annum. Subject to the conditions set forth
in the Indenture, each Bond may operate at any time in one of three Modes: a Weekly Mode, an Adjustable Long
Mode, or a Fixed Mode. Bonds in any Mode may, from time to time, in accordance with the Indenture, be
converted to one or more of the other Modes; however, Bonds in a Fixed Mode shall remain in such Mode.
Generally, as described herein, the Modes have different operating features. While any single Bond may be in only
one Mode at any time, other Bonds may operate in different Modes at the same time. Information regarding the
Modes, interest rates, and Adjustment Dates can be obtained from First Chicago Capital Markets, Ina (the
"Remarketing Agent") upon request as described herein. The Bonds will be issued initially in the Weekly Mode.
See "THE BONDS--Modes of Operation of Bonds". The Bonds are issuable only in fully registered form in
denominations of $100,000 and any integral multiple thereof (except for one Bond issuable in any amount greater
than $100,000) for any Bond operating in a Weekly Mode or an Adjustable Long Mode, and in denominations of
$5,000 and any integral multiple thereof for any Bond operating in a Fixed Mode.
The Bonds in the Weekly Mode and Adjustable Long Mode will be supported initially by a transferable
irrevocable direct pay letter of credit (the "Initial Credit Facility") issued in favor of the Trustee by The Fuji Bank,
Limited, New York Branch (the "Initial Credit Facility Issuer"). The Trustee is authorized to draw upon the Initial
Credit Facility an amount sufficient to pay principal of, and up to 57 days' interest on (calculated at a rate of 129b
per annum), and purchase price for Bonds (other than Pledged Bonds) when due upon redemption, acceleration,
purchase or otherwise. The Initial Credit Facility shall expire on , 1999 (subject to earlier termination)
_ but may be extended or replaced as set forth herein. See "LETTER OF CREDIT" and "RENEWAL CREDIT
FACILITIES; ALTERNATE CREDIT FACILITIES". Bonds in a Fixed Mode shall not be supported by any Credit
Facility.
To provide for issuance of the Initial Credit Facility, the Authority will enter into a Letter of Credit and
Reimbursement Agreement with the Initial Credit Facility Issuer dated as of June. 1, 1994 (the "Reimbursement
Agreement"), pursuant to which the Authority will be obligated to reimburse the Initial Credit Facility Issuer for
all drawings made under the Initial Credit Facility.
THE BONDS ARE SPECIAL OBLIGATIONS OF THE AUTHORITY AND ARE PAYABLE SOLELY
FROM AND SECURED EXCLUSIVELY BY A LIEN ON THE PLEDGED FUNDS (AS HEREINAFTER
DEFINED), INCLUDING FUNDS DRAWN UNDER THE CREDIT FACILITY THEN IN EFFECT. THE
BONDS, AND INTEREST ON THE BONDS, ARE NOT A DEBT OR A GENERAL OBLIGATION OF THE
AUTHORITY OR THE CTTY, NOR A CHARGE, ALIEN OR AN ENCUMBRANCE, LEGAL OR
EQUTTABLE, UPON PROPERTY OF THE AUTHORITY OR THE CITY OR UPON INCOME, RECEIPTS OR
REVENUES OF THE AUTHORITY OR THE CITY, OTHER THAN THOSE REVENUES THAT HAVE BEEN
SPECIFICALLY PLEDGED TO THE PAYMENT OF THE BONDS AS A PART OF THE PLEDGED FUNDS.
THE AUTHORTTY HAS NO TAXING POWER. See "RISK FACTORS" and "SECURITY AND SOURCES OF
PAYMENT FOR THE BONDS."
The Indenture establishes the "South Bend Redevelopment Authority Lease Rental Revenue Bonds of 1994
Reserve Fund" (the "Reserve Fund"). The Indenture requires that on the date of issuance of the Bonds, there will
be on deposit in the Reserve Fund an amount equal to 10 g'o of the original principal amount of the Bonds (the
"Reserve Amount"). The Reserve Fund may be applied solely for the purpose of paying principal of and interest
• on the Bonds if any deficiencies occur in the Sinking Fund established for such purpose. At the time of issuance
of the Bonds, $1,795,000 of the proceeds from the Bonds will be deposited into the Reserve Fund to provide the
Reserve Amount. See "SECURTTY AND SOURCES OF PAYMENT FOR THE BONDS".
The Bonds bearing interest at a Weekly Rate are subject to optional tender for purchase as described herein.
The Bonds bearing interest at an Adjustable Long Rate or a Fixed Rate are not subject to optional tender. See
"THE BONDS -- Purchase of Bonds on Demand of a Bondholder".
The Bonds bearing interest at a Weekly Rate and an Adjustable Long Rate are subject to mandatory tender
for purchase pursuant to certain mandatory tender provisions described. herein. Bonds bearing interest at a Fixed
Rate are not subject to mandatory tender for purchase. See "THE BONDS -- Mandatory Purchase".
The Bonds are subject to optional redemption, extraordinary optional redemption, and mandatory sinking
fund redemption prior to maturity as described herein. See "THE BONDS--Redemption". The Bonds are subject
to acceleration of maturity upon the occurrence of certain events, including events of default under the
Reimbursement Agreement. See "SUMMARY OF CERTAIN LEGAL DOCUMENTS--Indenture--Events of
Default and Remedies" in Appendix C herein.
The Bonds are being issued to finance (i) the construction of a college football hall of fame in South Bend,
Indiana and refunding certain bond anticipation notes issued in connection with such project, (ii) the Reserve
Amount to be deposited into the Reserve Fund, (iii) capitalized interest on the Bonds in the amount of
$ ,and (iv) the costs of issuance of the Bonds. See "THE PROJECT" and "SOURCES AND USES
OF BOND PROCEEDS. "
The information contained under the caption "INTRODUCTION" is qualified by reference to the entire
,,~„ Official Statement, including the appendices hereto. This introduction is only a brief description, and a full review
should be made of the entire Official Statement, including the appendices, as well as the documents summarized
or described herein. Certain information regarding the Initial Credit Facility Issuer has been provided by the Initial
Credit Facility Issuer and is set forth in Appendix A herein, and the Authority makes no representations as to the
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accuracy or sufficiency of such information or of the disclosure practices of the Initial Credit Facility Issuer. The
~: summaries of and references to all documents, statutes and other instruments referred to in this Official Statement
do not purport to be complete and are qualified in their entirety by reference to the full text of each such document,
statute or instrument. The information contained herein is qualified by and subject to the provisions of the book-
. entry-only system for so long as Bonds are issued under the book-entry system. All capitalized terms used herein
which are not otherwise defined have the meanings set forth in Appendix E herein.
RISK FACTORS
Investment in the Bonds involves certain risks. In addition to the factors set forth elsewhere in this Official
Statement, prospective purchasers of the Bonds should carefully consider the following risk factors:
1. The principal of and up to 57 days' accrued interest on the Bonds are payable from and secured
by the Initial Credit Facility. The ability of the Initial Credit Facility Issuer to satisfy its obligations under the Initial
Credit Facility may be impaired in the event of a deterioration of the financial condition of the Initial Credit Facility
Issuer, as the Initial Credit Facility represents a general claim against the assets of the Initial Credit Facility Issuer.
In the event of the insolvency of the Initial Credit Facility Issuer, or the occurrence of some other event precluding
it from honoring its obligations under the Initial Credit Facility, the funds of the Authority which may be used to
pay debt service on the Bonds might not be sufficient to pay such debt service.' Scheduled lease rental payments
are not sufficient in all circumstances to pay debt service on the bonds.
2. The Initial Credit Facility will expire on , 1999, unless extended or replaced. The
Authority is not obligated to maintain the Initial Credit Facility or any Alternate Credit Facility after. expiration of
the Initial Credit Facility. However, all Bonds will be subject to mandatory purchase unless a Renewal Credit
Facility or an Alternate Credit Facility has been delivered.
• 3. Enforcement of remedies provided in the Indenture with respect to payments to be made by the
Initial Credit Facility Issuer under the Initial Credit Facility may be limited by bankruptcy or other laws relating
to creditors' rights generally in the event of insolvency or liquidation of the Initial Credit Facility Issuer. In
addition, performance by the Initial Credit Facility Issuer of its obligations under the Initial Credit Facility is subject
to the satisfaction of certain conditions by the Trustee, as set forth in the Initial Credit Facility. Bondholders are
thus dependent upon the Trustee's acting to satisfy such conditions before they will receive the benefit of the Initial
Credit Facility.
4. The Initial Credit Facility Issuer has not entered into any contractual commitment to provide
owners of Bonds with any information on a continuing basis.
BOOK-ENTRY-ONLY SYSTEM
The Depository Trust Company ("DTC"), New York, New York, will act as securities depository for the
Bonds. The Bonds will beissued asfully-registered securities in the name of Cede & Co. (DTC's partnership
nominee). One fully-registered Bond will be issued and deposited with DTC.
DTC is alimited-purpose trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities
that its participants ("Participants") deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-
~~ entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust companies, clearing. corporations, and certain
~~ other organizations ("Direct Participants"). DTC is owned by a number of its Direct Participants and by the New
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York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National Association of Securities Dealers,
• Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its Participants are on file with the Securities
and Exchange Commission.
Purchases of Bonds under the DTC system must be made by or through Direct Participants, which will
receive a credit for the Bonds on DTC's records. The ownership interest of each actual purchaser of each Bond
(each a "Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' .records. Beneficial
Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers
of ownership interests in the Bonds are to be accomplished by entries made on the books of Participants acting on
behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests
in Bonds, except in the event that use of the book-entry system for the Bonds is discontinued.
To facilitate subsequent transfers, all deposits by Participants with DTC are registered in the name of
DTC's partnership nominee, Cede & Co. The deposit of Bonds with DTC and their registration in the name of
Cede & Co., effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners
of the Bonds; DTC's records reflect only the identity of the Direct Participants to whose accounts such Bonds are
credited, which may or may not be the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
While the Bonds are in the book-entry system, Beneficial Owners of Bonds in the Weekly Mode must
exercise their rights to tender Bonds for purchase by means of DTC's Delivery Order Procedures. In such case,
a Beneficial Owner must give or cause its Participant to give the notice described below under the caption "THE
• BONDS -Purchase of the Bonds on Demand of a Bondholder" to the Tender Agent. Such Beneficial Owner shall
effectuate delivery of its interest in the Bonds by causing its Participant to transfer such Beneficial Owner's interest
in such Bonds on the books of DTC to the Tender Agent or the Remarketing Agent. While the Bonds are in the
book-entry system, in the event of a mandatory purchase of Bonds in accordance with the terms of the Indenture,
Beneficial Owners who are required to tender their interests in the Bonds shall effectuate such tender through their
Participants and DTC in accordance with the customary practices and procedures of DTC. The requirement for
physical delivery of Bonds in connection with tenders for purchase or mandatory purchases will be deemed satisfied
when the ownership rights in the Bonds are transferred by Direct Participants on DTC's records.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants
to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed
by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to
time.
Redemption notices will be sent to Cede & Co. If less than all of the Bonds within a maturity are being
redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct .Participant in such
maturity to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the Bonds. Under its usual procedures,
DTC mails an Omnibus Proxy to the Authority as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Bonds are
credited on the record date (identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Bonds (and purchase price of Bonds) will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on each payment date in accordance with their respective holdings
`"`~ shown on DTC's records unless DTC has reason to believe that it will not receive payment on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices,
as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC, the Authority or the Trustee, subject to any statutory
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or regulatory requirements as may be in effect from time to time. Payment of principal and interest on the Bonds
• and the purchase price of Bonds to DTC is the responsibility of the Authority or the Trustee, disbursement of such
payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with respect to the Bonds at any time
bygiving reasonable notice to the Authority or the Trustee. Under such circumstances, in the event that a successor
.securities depository is not obtained, Bond certificates are required to be printed and delivered.
The Authority may decide to discontinue use of the system of book-entry transfers through DTC (or a
successor securities depository). In that event, Bond certificates will be printed and delivered.
The information contained in this section concerning DTC and DTC's book-entry system has been obtained
from sources that the Authority and the Underwriters believe to be reliable, but neither the Authority nor the
Underwriters or the Initial Credit Facility Issuer take any responsibility for the accuracy thereof.
In the event that the book-entry system for the Bonds is discontinued, the Trustee would provide for the
registration of the Bonds in the name of the Beneficial Owners thereof. The Authority and the Trustee would treat
the person in whose name any Bond is registered as the absolute owner of such Bond for the purposes of making
and receiving payments thereon, and for all other purposes, and neither the Authority nor the Trustee would be
bound by any notice or knowledge to the contrary.
REMARKETING AGENT
First Chicago Capital Markets, Inc., Chicago, Illinois, has been appointed by the Authority pursuant to a
• Remarketing Agreement to act as remarketing agent (the "Remarketing Agent") for the purposes described in the
Indenture. The Remarketing Agent's principal office is located at One First National Plaza, Suite 0826, Chicago,
Illinois 60670-0826. The Remarketing Agent will, under certain circumstances, determine the interest rates on the
Bonds, will use its best efforts to remarket Bonds, and may from time to time effect purchases of Bonds. The
Remarketing Agent may resign upon 30 days' notice to the Authority, the Credit Facility Issuer, the Trustee and
the Tender Agent, or may be removed at any time upon 30 days' notice by the Authority by an instrument signed
by the Authority, filed with the Remarketing Agent, the Trustee, the Tender Agent and the Credit Facility Issuer,
after which a successor Remarketing Agent or Agents will be appointed.
THE BONDS
The following is a summary of certain provisions of the Bonds. Reference is made to the Indenture and
to the summary thereof included in APPENDIX C for a more complete description of the Bonds. The discussion
herein is qualified by such references.
So long as DTC acts as the securities depository for the Bonds, as noted above, all references herein to
"Owner of Bond" or "Bondholder" are deemed to be to Cede & Co., as nominee of DTC, and not to Participants
or Beneficial Owners. See "BOOK-ENTRY ONLY SYSTEM".
General Description of the Bonds
The Bonds will be dated the date of issuance and will mature, subject to prior redemption and purchase,
on February 1, 2019. So long as the Bonds are registered in the name of Cede & Co., as nominee of DTC,
principal of, premium, if any, and interest on the Bonds and purchase price of tendered Bonds, if applicable, will
be paid as described above under "BOOK-ENTRY ONLY SYSTEM." If the Bonds are no longer in the book-entry
--.~_ system, then payment of principal of, premium, if any, and interest on the Bonds and purchase price of tendered
E
Bonds, if applicable, shall be made as described in the Indenture.
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The Bonds will be available only in fully registered form. The Bonds are issuable in denominations of
• $100,000 and any integral multiple thereof (except for one Bond issuable in any amount greater than $100,000) for
any Bond operating in a Weekly Mode or an Adjustable Long .Mode, and in denominations of $5,000 and any
integral multiple thereof for any Bond operating in a Fixed Mode. The person in whose name any Bond is registered
will be deemed and regarded as the absolute owner thereof for all purposes, and payment by the Trustee or the
Tender Agent (initially, the Trustee) of either principal of, premium, if any, or interest on any Bond or purchase
price thereof will be made only to or upon the written order of the registered owner thereof or such registered
owner's legal representative. The Authority, the Trustee, the Tender Agent, the Remarketing Agent, the Credit
Facility Issuer and any Paying Agent shall be entitled to treat the registered owners of the Bonds, as their names
appear on the Bond Register as of the appropriate dates, as the owners of such Bonds for all purposes under the
Indenture.
The principal of and premium, if any, on Bonds bearing interest at a Weekly Rate or an Adjustable Long
Rate will be payable at the Principal Office of the Tender Agent, upon presentation and surrender of such Bonds.
The principal of and premium, if any, on Bonds bearing interest at a Fixed Rate will be payable at the Principal
Office of the Trustee or, at the option of the owner, at the Principal Office of any Paying Agent, if any, named in
any such Bond, upon presentation and surrender of such Bonds. Any payment of the purchase price of a Tendered
Bond will be payable at the Principal Office of the Tender Agent, upon presentation and surrender of such Bond.
See "THE BONDS--Purchase of Bonds on Demand of a Bondholder. "
The payment of interest on the Bonds will be paid on the applicable Interest Payment Date to the person
appearing on the Bond Register as the registered owner thereof as of the close of business of the Trustee on the
Record Date at the address of such owner as it appears on the Bond Register or at such other address as is furnished
to the Trustee in writing by such owner not later than the Record Date. Payment of interest on any Bond will be
made to any owner of $1,000,000 or more in aggregate principal amount of such Bonds by wire transfer to such
owner on such Interest Payment Date upon written notice from such owner containing the wire transfer address
• within the continental United States to which such owner wishes to have such wire directed, which written notice
is received not later than the Business Day next preceding the applicable Record Date. Notwithstanding anything
herein to the contrary, payment of interest on Bonds which, as of the Record Date for the applicable Interest
Payment Date, constitute Pledged Bonds, will be made by wire transfer to the Principal Office of the Credit Facility
Issuer and payment of Defaulted Interest will be made as provided for in the Indenture.
The Trustee shall keep the registration books for the Bonds at its Principal Office, initially located at 112
W. Jefferson Blvd., South Bend, Indiana 46601.
Bond Registration and Transfers
Subject to the limitations described below, the Bonds are transferable upon surrender thereof at the
Principal Office of the Trustee, duly endorsed by, or accompanied by a written instrument or instruments of transfer
in form satisfactory to the Trustee and duly executed by the Bondholder or such Bondholder's attorney duly
authorized in writing. Subject to the limitations described below, Bonds may be exchanged at the Principal Office
of the Trustee upon surrender thereof, together with an assignment duly executed by the registered owner thereof
or such owner's attorney in such form and with guarantee of signature as shall be satisfactory to the Trustee for an
equal aggregate principal amount of Bonds of like date and tenor of any Authorized Denomination as the Bonds
surrendered for exchange. The Trustee and the Authority may charge a fee sufficient to cover any .tax, fee or other
governmental charge in connection with any transfer or exchange of Bonds, except in the case of an issuance of any
Bond for the unredeemed portion of a Bond surrendered for redemption in part. Subsequent to the Conversion Date
for any Bond, the Trustee shall not be required to transfer or exchange such Bond during the period commencing
on the Record Date next preceding any Interest Payment Date nor to transfer or exchange such Bond after the
mailing of notice calling such Bond for redemption has been made, nor during the period of 15 days next preceding
the giving of notice of redemption. Prior to the Conversion Date applicable to any Bonds, the Trustee or the Tender
Agent shall not be required to exchange or register the transfer of such Bonds selected, called or being called for
redemption in whole or in part or after the mailing of notice calling such Bond for redemption has been made,
except that the Authority and the Trustee shall be required to register the transfer of Tendered Bonds after such date
~~ of mailing of notice of redemption.
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Modes of Operation of Bonds
• General.
The Bonds may operate in one or more of three Modes of operation, being the Weekly Mode, the
Adjustable Long Mode and the Fixed Mode. While any single Bond may operate in only one Mode at any given
time, other Bonds may operate in different Modes at the same time; provided, however, that consent of the Initial
Credit Facility Issuer is required for a conversion of fewer than all Bonds to a Fixed Mode.
Generally, the Modes have different operating features. Except as otherwise described below, once a Mode
is designated for any particular Bond, such Bond shall remain in that Mode until the Remarketing Agent designates
a new Mode for such Bond; provided, however, that Bonds converted to bear interest at the Fixed Rate shall remain
in the Fixed Mode until Maturity or redemption thereof prior to Maturity. The Remarketing Agent shall select such
a principal amount of Bonds for conversion from one Mode to another as will allow Bonds after conversion to be
sold in the minimum Authorized Denominations applicable to such Mode.
All Bonds in the Weekly Mode shall bear interest at the same interest rate. Bonds operating in the
Adjustable Long Mode may bear interest at different rates for different Rate Periods. Owners of Bonds in the
Weekly Mode will be entitled to demand the purchase of their Bonds. As described below, Bonds are subject to
mandatory purchase on an Adjustment Date: Bonds operating in an Adjustable Long Mode are also subject to
mandatory purchase on each Rate Change Date (other than the Rate Change Date which is the first day of such
Adjustable Long Mode). Bonds bearing interest at a Fixed Rate shall not be supported by the Credit Facility and
are not subject to optional or mandatory tender for purchase.
Designation of Weekly and Adjustable Long Modes.
• The Bonds will be initially issued in the Weekly Mode. Thereafter, except in the instances where a Bond
is in the Fixed Mode, the Remarketing Agent may designate a subsequent Mode for each Bond to commence on
an Adjustment Date. The Remarketing Agent may designate an Adjustment Date to occur with respect to any Bond
during a Weekly Mode on any Business Day, and with respect to any Bond during an Adjustable Long Mode on
any Rate Change Date. An Adjustment Date for any Bond in a particular Mode will be a mandatory purchase date
for such Bond.
The Remarketing Agent may select such subsequent Adjustment Periods and, within an Adjustable Long
Mode, Rate Periods as will, in the judgment of the Remarketing Agent, result in the lowest aggregate cost payable
by the Authority with respect to the Bonds, taking into account interest and any other determinable fees and
expenses. The Remarketing Agent may establish different Adjustment Periods and, within an Adjustable Long
Mode, different Rate Periods for Bonds on the same Adjustment Date in order to achieve an average duration of
Adjustment Periods and/or Rate Periods that, in the judgment of the Remarketing Agent, is most likely to achieve
the lowest total aggregate cost payable by the Authority with respect to the Bonds, taking into account interest and
any other determinable fees and expenses. The Remarketing Agent's determination shall be based upon the market
for and the relative yields of the Bonds and other securities that bear interest at a variable rate or at fixed rates -that,
in the judgment of the Remarketing Agent, are otherwise comparable to the Bonds, or any fact or circumstance
relating to the Bonds or affecting the market for the Bonds or affecting such other comparable securities in a manner
that, in the judgment of the Remarketing Agent, will affect the market for the Bonds. The Remarketing Agent, in
.its discretion, may consider such information and resources as it deems appropriate in making the determinations
described above, but the Remarketing Agent's determination shall be based solely upon the Remarketing Agent's
judgment, and the Remarketing Agent's determination shall be conclusive and binding upon all parties.
If the Authority designates a Mode for any Bond different from that then in effect with respect to such Bond
or designate an Adjustment Period which is an Adjustable Long Mode that succeeds an Adjustable Long Mode
where the Adjustable Long Mode or the Rate Periods therein change from a duration of 366 days or less to a
duration of more than 366 days, or vice versa, the Authority shall cause to be delivered to the Trustee, the Tender
Agent, the Remarketing Agent and the Credit Facility Issuer, and no such designation of an Adjustment Period, Rate
',, ._>- '
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Period or subsequent Adjustment Date shall take effect without, an Opinion of Bond Counsel to the effect that such
• designation (i) is authorized or permitted by the Indenture, (ii) will not have an adverse effect on any exemption
from federal income taxation to which the interest on the Bonds would otherwise be entitled, and{iii) will not have
an adverse effect on the validity or enforceability of any Bond. Such opinion shall not be required, however, with
respect to (i) a Weekly Mode or an Adjustable Long Mode with a duration of 366 days or less if the immediately
preceding Adjustment Period was a Weekly Mode or an Adjustable Long Mode with a duration of 366 days or less,
or (ii) an Adjustable Long Mode with a duration of more than 366 days if the immediately preceding Adjustment
Period was an Adjustable Long Mode with a duration of more than 366 days. If an Opinion of Bond Counsel is
required to be delivered, the conversion contemplated by such opinion shall not become effective unless prior to
11:00 a.m., New York City time, on the applicable Adjustment Date the Trustee shall have received an Opinion
of Bond Counsel, dated the Adjustment Date, reaffirming the conclusions of the opinion.
If the opinions described in the preceding paragraph are not delivered or are withdrawn, or if the
Remarketing Agent fails to determine the interest rate applicable to the initial Rate Period during a new Mode or
fails to determine an Adjustable Long Rate on a Rate Determination Date for a Rate Period within an Adjustable
Long Mode which is not a scheduled Adjustment Date, then the immediately succeeding Adjustment Period with
respect to the Bonds in the Adjustment Period or Rate Period then ending shall be a Weekly Mode; provided,
however, that in the event the preceding Rate Period was longer than 366 days in duration, in order for the Bonds
to so commence operation in a Weekly Mode, the Remarketing Agent shall have obtained (i) certificates from the
Authority, the Trustee and the Credit Facility Issuer that there have been no changes in the applicable Credit
Facility, the documents executed and delivered in connection with the original delivery of the Bonds, or in any other
aspect of the action contemplated by the Indenture since the original delivery of the Bonds, or (ii) an Opinion of
Bond Counsel to the. effect that the validity of the Bonds and any exemption from federal income taxation to which
interest on the Bonds would otherwise be entitled would not be impaired by reason of the commencement of
operation in such Weekly Mode. If the Remarketing Agent cannot obtain such certificates or opinion, in the case
of a failed Mode conversion, the immediately succeeding Adjustment Period shall consist of one Rate Period in an
• Adjustable Long Mode of a duration of 366 days.
Conversion to Fired Mode.
On any Rate Change Date during an Adjustable Long Mode or on any Business Day during a Weekly
Mode, the interest rate to be borne by all or any portion of the Bonds in such Mode may be converted to a Fixed
Rate upon receipt by the Trustee and the Tender Agent of a direction from the Authority not less than 15 days prior
to the Conversion Date specified in such direction. A Conversion Date for any Bond will be a mandatory purchase
date for such Bond. The owners of Bonds required to be tendered may not elect to retain such Bonds.
A Fixed Rate will be determined for each Bond being so converted on the basis of the Maturity for such
Bond, taking into consideration any mandatory sinking fund redemption requirements for such Bonds. Such
direction shall be accompanied by (i) a firm underwriting or purchase contract from a recognized firm of bond
underwriters or recognized institutional investors ("Qualified Underwriters") to underwrite or purchase all Bonds
which are to be converted on such Conversion Date at ~a price of 100 % of the principal amount thereof, which shall
request the Trustee to designate on which dates such Bonds will be subject to mandatory sinking fund redemption
or payment at Maturity, which dates, together with any such designations in connection with prior conversions, shall
conform to the mandatory sinking fund redemption payment schedule set forth in the Indenture, (ii) a certification
from such Qualified Underwriters that, in their best judgment under prevailing market conditions, the Fixed Rate
for each Bond specified in such underwriting or purchase contract equals the minimum interest rate necessary to
remarket such Bond on the Conversion Date at 1009b of the principal amount thereof, and (iii) an Opinion of Bond
Counsel addressed to the Authority and the Trustee (which opinion shall be reaffirmed on the applicable Conversion
Date prior to 11:00 am., New York City time) to the effect that such conversion (a) is authorized or permitted by
the Indenture, (b) will not have an adverse effect on any exemption from federal income taxation to which the
interest on the Bonds would otherwise be entitled, and (c) will not have an adverse effect on the validity or
enforceability of any Bond. The determination of the Fixed Rate for any Bonds will be conclusive and binding upon
the owners of such Bonds, the Authority and the Trustee.
-8-
At least 10 days prior to the Conversion Date, the Trustee will give written notice of such election by the
• Authority to the owners of all Bonds to be converted, .which notice will state (i) the Conversion Date and (ii) that
such Bonds will be subject to mandatory purchase on such Conversion Date.
If for any reason the conversion of the interest rate on any Bond to a Fixed Rate does not occur, such
Bonds shall bear interest from and after the proposed Conversion Date in the Weekly Mode; provided, however,
that if the Rate Period preceding the failed Conversion Date was of a duration of more than 366 days, in order for
the Bonds to so commence operation in a Weekly Mode the Remarketing Agent shall have obtained (i) certificates
from the Authority, the Trustee and the Credit Facility Issuer that there have been no changes in the Credit Facility,
the documents executed and delivered in connection with the original delivery of the Bonds, or in any other aspect
of the action contemplated hereby. since the original delivery of the Bonds or (ii) an Opinion of Bond Counsel to
the effect that the commencement of operation in such Weekly Mode will not have an adverse effect on the validity
of the Bonds or on any exemption from federal income taxation to which the interest on the Bonds would otherwise
be entitled. If such certificates or opinion are required but cannot be obtained, the immediately succeeding
Adjustment Period- shall consist of one Rate Period in an Adjustable Long Mode of a duration of one year plus one
day.
Notices.
The Trustee (which may act through the Tender Agent) shall provide to any Bondholder, upon request,
information regarding the Adjustment Periods, Rate Periods, Interest Payment Dates, optional redemption
provisions, and interest rate or rates applicable to such Bondholder's Bonds.
Failure by the Trustee or the Tender Agent to give any notice, or any defect therein, shall not in any way
change the rights of the owners of such Bonds to elect to have their Bonds purchased on any Demand Date or extend
the period for making such elections. Any notice mailed as provided in the Indenture shall be conclusively presumed
• to have been given, whether or not received.
Interest on the Bonds
General.
The Bonds are subject to a maximum rate of interest of 12% per annum.
During any Weekly Mode, interest on the Bonds in such Mode will be payable on the first Business Day
of each calendar month. During any Adjustable Long Mode, interest on the Bonds in such Mode will be payable
on each Rate Change Date. Also during any Adjustable Mode, if the duration of the Rate Period exceeds 366 days,
interest on such Bonds will be payable on each February 1 and August 1. In addition, interest on the Bonds will
be payable on any Adjustment Date applicable to such Bonds, and other dates on which such Bonds are subject to
m~datory purchase in accordance with the Indenture, and on the Maturity date. During the Fixed Mode, interest
on the Bonds in such Mode will be payable on each~February 1 and August i.
The Bonds will bear interest, from and including the date of the first authentication and delivery of the
Bonds until the principal thereof or redemption price therefor shall have been paid or payment thereof provided for
in accordance with the Indenture, whether at Maturity, upon redemption, acceleration, or otherwise. Interest on
the Bonds shall accrue during a Weekly Mode from the later of (i) the first day of each calendar month or (ii) the
Adjustment Date for such Weekly Mode, to and including the earlier of (iii) the last day of each calendar month
or (iv) the day prior to the Adjustment Date for the Mode which succeeds such Weekly Mode. Interest on the
Bonds shall accrue during an Adjustable Long Mode (A) with respect to any Bond in an Adjustable Long Mode for
any Rate Period which is 366 days or less from the Rate Change Date for such Bonds to the day prior to the next
succeeding Rate Change Date and (B) with respect to any Bond in an Adjustable Long Mode for any Rate Period
which exceeds 366 days from each February 1 and August 1 to, but not including, the next succeeding February 1
• or August 1 and from each succeeding February 1 or August 1, as the case may be, to the next succeeding
February 1 or August 1. Interest on the Bonds shall accrue during a Fixed Rate Period from the Conversion Date
-9-
to, but not including, the next succeeding February 1 or August 1 and from each succeeding February 1 or
• August 1, as the case may be, to the next succeeding February 1 or August 1.
Interest on the Bonds will be computed (i) during any Weekly Mode and during any Adjustable Long Mode
for any Rate Period of a duration of 366 days or less, upon the basis of a 365- or 366-day year, as applicable, for
the number of days actually elapsed and. (ii) during any Adjustable Long Mode for any Rate Period of a duration
of greater than 366 days or during a Fixed Mode, upon the basis of a 360-day year consisting of twelve 30-day
months.
THE TRUSTEE HAS NO OBLIGATION, EXCEPT UPON REQUEST, TO INFORM THE
BONDHOLDER OF THE RATE APPLICABLE IN ANY RATE PERIOD WHILE BONDS BEAR INTEREST
AT A WEEKLY RATE OR AN ADJUSTABLE LONG RATE. THE BONDHOLDER MAY CONTACT THE
TRUSTEE OR THE REMARKETING AGENT TO DETERMINE THE INTEREST RATE APPLICABLE
DURING SUCH A RATE PERIOD.
Weekly Mode.
For each Rate Period during a Weekly Mode, the Bonds in such Mode will bear interest at the Weekly
Rate. The Weekly Rate is a fixed per annum interest rate equal to the lowest interest rate which, in the judgment
of Remarketing Agent, would enable such Bonds to be remarketed at the principal amount thereof, plus accrued
interest, if any, on the Rate Change Date for such Rate Period.
No later than 11:00 am., New York City time, on the Rate Determination Date for such Rate Period, the
Remarketing Agent will determine and will give notice by telecopy to the Trustee and the Tender Agent of the
Weekly Rate applicable to the Bonds. Rate Determination Dates will occur on Tuesday of each week (unless such
day is not a Business Day, in which case the Rate Determination Date for such week shall be the immediately
preceding Business Day), and Rate Change Dates will occur on Wednesday of each week. If at any time the
• Remarketing Agent determines that, in its judgment, the scheduled Rate Determination Dates or Rate Change Dates
for a Weekly Mode have become inappropriate, taking into account general market practice with respect to periodic
adjustment of rates on instruments comparable to the Bonds bearing interest at the Weekly Rate, the Remarketing
Agent may designate a new schedule of Rate Determination Dates and/or Rate Change Dates. The Remarketing
Agent will give written notice of any such change to the Trustee (who promptly upon receipt of such notice will
notify each affected Bondholder in writing), the Authority, the Tender Agent, and the Credit Facility Issuer. Such
change will become effective on the first scheduled Rate Determination Date or Rate Change Date, as the case may
be, so designated occurring not less than 14 days following the giving of such notice.
Except on an Adjustment Date, in the event that the Weekly Rate for any Rate Period is not determined
by the Remarketing Agent, the rate of interest borne by the Bonds bearing interest at a Weekly Rate for the
immediately preceding Rate Period shall remain in effect for such Rate Period.
Adjustable Long Mode.
For each Rate Period during an Adjustable Long Mode, each Bond in such Rate Period will bear interest
at the Adjustable Long Rate. The Adjustable Long Rate is a fixed per annum interest rate equal to the lowest interest
rate which, in the judgment of the Remarketing Agent, would enable such Bonds to be remarketed at the principal
amount thereof, plus accrued interest, if any, on the Rate Change Date for such Rate Period.
No later than 11:00 am., New York City time, on the Rate Determination Date for such Rate Period, the
Remarketing Agent will determine, and will give notice by telecopy to the Trustee and the Tender Agent of the
Adjustable Long Rate applicable to the Bonds in such Rate Period. The Rate Determination Date for each Rate
Period during an Adjustable Long Mode will be a Business Day, designated by the Remarketing Agent, not less than
one calendar day nor more than seven calendar days prior to the first day of such Rate Period.
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In the event that the Adjustable Long Rate for any Bond is not determined by the Remarketing Agent, the
• rate of interest borne by such Bond shall be determined as described above under the heading "Modes of Operation
of Bonds--Designation of Weekly and Adjustable Long Modes." .
Fixed Mode.
From and after the Conversion Date for any Bond, such Bond will bear interest at the Fixed Rate. The
Fixed Rate is a fixed per annum interest rate equal to the lowest interest rate which, in the judgment of the
Remarketing Agent, would enable such Bond to be remarketed at the principal amount thereof on the Conversion
Date for such Fixed Mode.
Purchase of Bonds on Demand of a Bondholder
While any Bond bears interest at a Weekly Rate, such Bond (or portion thereof in an Authorized
Denomination) (other than a Pledged Bond) will be purchased on a Demand Date upon the demand of the owner
thereof, at a purchase price equal to 100 ~ of the principal amount thereof plus accrued interest, if any, to the
Demand Date, upon irrevocable written notice (which may be given by telecopy) to the Tender Agent at its Principal
Office, which notice must be received not later than 11:00 a.m., New York City time, in order to be effective on
the day of receipt. The notice must specify (i) the principal amount and number of such Bond, the name and
address of the owner and the taxpayer identification number, if any, of the owner and (ii) the Demand Date. The
Demand Date shall be the Business Day specified in the notice upon which the owner intends to tender such Bond
(or any portion thereof in an Authorized Denomination) for purchase, which Business Day shall not be less than
seven calendar days after the date the notice is received by the Tender Agent. Any owner of Bonds who has so
demanded purchase is required to deliver such Bonds (with all necessary endorsements) to the Tender Agent at its
Principal Office prior to 10:00 am., New York City time, on the Demand Date.
Owners of Bonds in the Adjustable Long Mode or the Fixed Mode will not have any right to demand
• purchase of their Bonds.
See "BOOK-ENTRY ONLY SYSTEM" herein for a discussion of the purchase of Bonds while the Bonds
are in the book-entry .system.
.Mandatory Purchase
Bonds (other than Pledged Bonds and Bonds bearing interest at a Fixed Rate) are required to be tendered
to the Tender Agent for purchase on the following dates with respect to such Bonds: (i) each Adjustment Date,
including without limitation a proposed Conversion Date to a Fixed Rate, (ii) each Rate Change Date within an
Adjustable Long Mode for such Bonds other than the Rate Change Date which is the first day of such Adjustable
Long Mode, (iii) each Renewal Date, which is a date 20 days prior to the Stated Expiration Date of the Credit
Facility at the time in effect (or the preceding Business Day if such day is not a Business Day), for which the
Authority fails to furnish the Trustee with a Renewal Credit Facility or Alternate Credit Facility complying with
the provisions of the Indenture by the tenth day preceding such Renewal Date and (iv) a Substitution Date, which
is the Business Day upon which an Alternate Credit Facility is to be substituted for the Credit Facility then in effect,
if the Authority has received a Rating Decline Notice with respect to such substitution. Furthermore, Bonds (other
than Pledged Bonds and Bonds bearing interest at a Fixed Rate) are required to be tendered to the Tender Agent
for purchase (i) if the Trustee receives written notice from the Credit Facility Issuer of the occurrence of a default
under the Credit Facility Agreement and that the Credit Facility shall be terminated as set forth in the notice or (ii)
if the Trustee receives notice from the Credit Facility Issuer within the applicable period specified in the Credit
Facility that the Credit Facility Issuer is not reinstating the Credit Facility following a drawing under the Credit
Facility to pay interest on the Bonds to the amount available thereunder immediately prior to such drawing less any
reduction resulting from the payment of principal on the Bonds entitled to the benefits of the Credit Facility. The
owners of Bonds required to be tendered as described in this paragraph may not elect to retain such Bonds.
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The owners of Bonds subject to mandatory purchase who tender their Bonds (with any necessary
endorsements) to the Principal Office of the Tender Agent by 10:00 am. , New York City time, on such date will
be paid a purchase price equal to 100 % of the principal amount thereof, plus accrued interest thereon, if any, to
the date of purchase by 3:00 p.m., New York City time; provided, however, that owners of Bonds bearing interest
at an Adjustable Long Rate who duly tender such Bonds for purchase on a Renewal Date will be paid a purchase
price equal to (a) the then applicable optional redemption price, or (b) if such purchase shall occur during the No-
Call Period for such Bonds, a purchase price of 103 % of the principal amount to be purchased plus accrued interest,
if any, to the Renewal Date.
Bondholder's Failure to Deliver the Bonds
In the event that sufficient moneys are on deposit in the Bond Purchase Fund to pay the purchase price of
any Tendered Bond, such Tendered Bond will be deemed to have been purchased for all purposes whether or not
delivered by the Bondholder thereof on the date such Tendered Bond is to be purchased. The purchase price for such
Tendered Bonds will be held on deposit with the Tender Agent for a period of years. Such Tendered
Bonds will not be deemed to be outstanding under the Indenture, and new Bonds may be executed, authenticated,
and delivered in the place of such Tendered Bonds, and the Remarketing Agent may offer and sell the Bonds
authenticated and delivered in place of such Tendered Bonds.
Redemption
Optional Redemption.
Optional Redemption Durine Weekly Mode. Bonds in a Weekly Mode shall be subject to redemption prior
to Maturity, at the option of the Authority, from money on deposit in the LOC Redemption Account of the
Redemption Fund, in whole or in part (and if in part in an Authorized Denomination) on any Business Day during
such Weekly Mode, at a redemption price equal to 100 % of the principal amount thereof plus accrued interest, if
• any, to the redemption date.
Optional Redemption During Adjustable Long Mode or After Conversion to Fixed Rate. Bonds is an
Adjustable Long Mode or Fixed Mode shall be subject to redemption prior to Maturity, at the option of the
Authority, from money on deposit in the LOC Redemption Account of the. Redemption Fund for Bonds in an
Adjustable Long Mode, and from amounts on deposit in the Redemption Fund for Bonds in the Fixed Mode, in
whole on any Business Day or in part (and if in part in an Authorized Denomination) on any Interest Payment Date
applicable to such Bonds after the No Call Period described below and at the redemption prices (expressed as the
percentage of the principal amount of Bonds called for redemption) set forth below plus interest accrued, if any,
to the redemption date:
NO-CALL
LENGTH OF RATE PERIOD~i~ PERIOD REDEMPTION PRICE
greater than 12 years 10 years from 102 %, declining .5 % per
the Rate Change 6 months to 10040
Date ~~
less than or equal to 12 years until 2 years 102 °lo , declining . 5 % per
and greater than 4 years prior to end 6 months to 10040
of Rate Period ~'~
less than or equal to 4 years length of NOT SUBJECT TO
Rate Period o~ OPTIONAL REDEMPTION
•
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(1) Following the Conversion Date for any Bond, the duration of the Fixed Mode for all Bonds
• converted on such Conversion Date; and for any Bond in an Adjustable Long Mode, the length
of the Rate Period then in effect.
(2) Following the Conversion Date for any Bond, measured from such Conversion Date.
(3) Following the Conversion Date for any Bonds, measured to Maturity.
Notwithstanding the schedule shown above, prior to the actual conversion of the Bonds to a different mode,
the Authority may redeem such Bonds according to another schedule delivered to the Trustee if the Authority also
delivers an Opinion of Bond Counsel to the effect that the alternative schedule of redemption will not adversely
affect the validity and enforceability of the Bonds in accordance with their terms and will not have an adverse effect
on any exemption from federal income taxation to which the interest on the Bonds would otherwise be entitled.
The Authority may only cause an optional redemption of the Bonds in an Adjustable Long Mode which
would require payment of a premium if on the date of giving the notice of redemption the Trustee can draw under
the Credit Facility in an amount sufficient to pay such premium due on the date of redemption.
In addition, the Bonds in an Adjustable Long Mode shall be subject to optional redemption prior to Maturity
by the Authority, from money on deposit in the LOC Redemption Account of the Redemption Fund, in whole or
in part (and if. in part in an Authorized Denomination) on any Rate Change Date therefor, at a redemption price of
10040 of the principal amount thereof plus interest accrued, if any, to the redemption date.
Bonds which are Pledged Bonds are subject to optional redemption upon the conditions set forth in the
Indenture.
Extraordinary Optional Redemption. In the event that all or a portion of the facilities subject to the. Lease
are damaged or destroyed to such an extent that it is not practicable or possible to restore and reconstruct the same
pursuant to the Lease, the Bonds are subject to extraordinary redemption in whole or in part at any time at a price
equal to 10030 of the principal amount of the Bonds plus interest accrued to the date of redemption.
Mandatory Sinking Fund Redemption
With respect to the payment of Bonds on final Maturity or by mandatory sinking fund redemption through
the Sinking Fund, the Authority shall have on deposit in the Sinking Fund (a) if prior to the Conversion Date with
respect to a Bond, on the first Business Day occurring on or after February 1, 2006, and on the first Business Day
occurring on or after each February 1 thereafter, or (b) if after the Conversion Date with respect to a Bond, on
February 1 of each year, and (c) on February 1, 2019 moneys to carry out redemption or payment of Bonds,
without premium, in the amounts and at the times respectively, as follows:
February 1 Principal
Of The Year Amount
2006 $ 1,050,000
2007 1,100,000
2008 1,100,000
2009 1,100,000
2010 1,200,000
2011 1,200,000
2012 1,300,000
2013 1,300,000
2014 1,400,000
2015 1,400,000
•
2016 1,400,000
2017 1,500,000
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2018 1,500,000
2019 1,500,000 (final maturity)
General Redemption Provisions
Purchase in Lieu of Redemgtion• Bond Sinking Fund Credits. In lieu of redeeming Bonds (other than
optional redemptions of Pledged Bonds), the Trustee may, at the request of the Authority, use funds otherwise
available under the Indenture for redemption of Bonds to purchase the Bonds in the open market at a price not
exceeding the redemption price then applicable. In the case of any optional or extraordinary redemption or purchase
and cancellation of Bonds, the Authority shall receive credit against its required Sinking Fund deposits with respect
to the Bonds of the Maturity redeemed or purchased (if Bonds to be converted to a Fixed Rate have been assigned
sinking fund redemption dates and maturity dates pursuant to the Indenture) and if such Bonds have not been
assigned a Maturity prior to the final Maturity of the Bonds, the Authority shall receive credit against its required
Sinking Fund deposits with respect to such Bonds and the final Maturity of the Bonds in such order as the Authority
shall designate prior to the redemption or purchase and cancellation or, if no such election is made prior to such
redemption or purchase and cancellation, in the inverse order thereof; provided, however, that following such
reduction each mandatory Sinking Fund redemption payment is made in an Authorized Denomination.
Notice of Redemption. Generally, whenever Bonds are to be redeemed, the Trustee shall give notice of
the redemption of the Bonds, which notice shall specify the redemption date, the redemption price to be paid, the
place and manner of payment, and that from such redemption date, interest shall cease to accrue on such Bonds so
called for redemption. Notice of the redemption of Bonds bearing interest at a Weekly Rate or an Adjustable Long
Rate for a Rate Period of 366 days or less will be given by first-class mail, postage prepaid, not less than 10 days
and not more than 30 days prior to the date fixed for redemption, and with respect to Bonds bearing interest at an
Adjustable Long Rate for a Rate Period in excess of 366 days or a Fixed Rate, not less than 30 days nor more than
60 days prior to the date fixed for redemption, to the registered owner of the Bonds to be redeemed at the address
shown on the Bond Register. Failure to give any notice in the manner prescribed by the Indenture or a defect in
• the notice as to any Bond will not affect the validity of any proceedings for redemption as to any other Bond for
which notice was properly given. Interest will not accrue after the redemption date on any Bond called for
redemption if notice has been given and if sufficient moneys have been deposited with the Trustee to pay principal
of, premium, if any, and interest on such Bonds to the redemption date.
If .less than all of the Bonds are called for redemption, the particular Bonds or portions thereof to be
redeemed shall be selected by the Trustee, in a principal amount designated to the Trustee by the Authority,
provided, however, that (i) Pledged Bonds shall be redeemed first; (ii) in the case of the redemption of less than
all Bonds which bear interest at the same rates for the same Rate Periods, such redemption shall be by lot in such
manner as the Trustee may determine; (iii) in the case of Bonds which has been assigned to mandatory sinking fund
redemption dates, such Bonds shall be redeemed on such designated dates; and provided further, that the portion
of any Bond to be redeemed shall be in a principal amount equal to an Authorized Denomination. In selecting Bonds
for redemption, the Trustee shall treat each Bond as representing that number of Bonds which is obtained by
dividing the principal amount of such Bond by the minimum Authorized Denomination.
LETTER OF CREDIT
General
Bonds in the Weekly Mode or Adjustable Long Mode will be supported by a credit facility authorized
pursuant to the terms of the Indenture (a "Credit Facility"). The Credit Facility will be the Initial Credit Facility
issued by the Initial Credit Facility Issuer, or a Renewal Credit Facility or Alternate Credit Facility (the issuer
thereof, a "Credit Facility Issuer"). See "RENEWAL CREDIT FACILITIES; ALTERNATE CREDIT
FACILITIES". Bonds in a Fixed Mode shall not be supported by any Credit Facility.
•
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The Initial Credit Facility
• The Initial Credit Facility is an irrevocable obligation of the Initial Credit Facility Issuer. The Initial Credit
Facility will be issued in an amount equal to $ ,which comprises a principal component of
$ ,which is equal to the original principal amount of the Bonds, plus an interest component of
$ ,which is equal to 57 days' interest thereon at a rate per annum equal to 12 9b calculated on the
basis of a year of 365 or 366 days, as appropriate, for actual days elapsed (the "Cap Interest Rate"). The amount
of the Initial Credit Facility and the maximum amount which may be drawn from the Initial Credit Facility Issuer
are subject to reduction and reinstatement on the terms summarized below.
The Trustee, upon compliance with the terms of the Initial Credit Facility, is authorized to draw on the
Initial Credit Facility (by presenting drafts and certificates as provided therein) an amount sufficient to pay (a)
principal of the Bonds (other than Pledged Bonds (as defined in the Reimbursement Agreement) and Bonds bearing
interest at a Fixed Rate) when due upon redemption, purchase in lieu of redemption or acceleration, (b) the Tender
Price of Bonds (other than Pledged Bonds and Bonds bearing interest at a Fixed Rate) upon optional or mandatory
tender for purchase, and (c) up to 57 days' of interest on Bonds (other than Pledged Bonds and Bonds bearing
interest at a Fixed Rate) at the Cap Interest Rate when due.
The amount available under the Initial Credit Facility will be reduced to the extent of any drawing
thereunder, subject to reinstatement in certain cases on the terms summarized below. With respect to a drawing
by the Trustee solely to pay interest on the Bonds, the amount available under the Initial Credit Facility
automatically will be reinstated, in the amount of such drawing, on the calendar day following such drawing,
unless (i) the Trustee shall have received notice from the Initial Credit Facility Issuer within such period that the
Authority failed to reimburse the Initial Credit Facility Issuer for the amount of such drawing in accordance with
the terms of the Reimbursement Agreement and that the Initial Credit Facility Issuer's obligations shall not be
reinstated or (ii) such drawing of interest relates to optional or mandatory redemption or purchase in lieu thereof
or purchase upon optional or mandatory tender resulting in a cancellation of Bonds. With respect to a drawing to
• pay the Tender Price of any Bonds upon optional or mandatory tender for purchase, the amount available under the
Initial Credit Facility will be reinstated, in the amount of such drawing, by notice given by the Initial Credit Facility
Issuer upon reimbursement to the Initial Credit Facility Issuer of the amount of such drawing plus all accrued
interest thereon except that the Initial Credit Facility Issuer may in its discretion (evidenced by a notice from the
Initial Credit Facility Issuer to the Trustee) refuse to reinstate all or a portion of the amount available under the
Initial Credit Facility which has been automatically reduced by such drawing if there shall have occurred and be
continuing a Default or Potential Default (as defined in the Reimbursement Agreement) under the Reimbursement
Agreement.
The Initial Credit Facility will expire on the earliest of: (a) the Initial Credit Facility Issuer's close of
business on ,1999 (the "Termination Date"); (ti)the date on which the Initial Credit Facility
Issuer honors. a draw to pay the Bonds (other than Pledged Bonds and Bonds bearing interest at a Fixed Rate) upon
their acceleration as a result of an Event of Default under the Indenture; (c) the Initial Credit Facility Issuer's close
of business on the day after the Trustee receives written notice from the Initial Credit Facility Issuer that
(i) a Default has occurred under the Reimbursement Agreement and (ii) the Initial Credit Facility shall be terminated
at the close of business at the office of the Initial Credit Facility Issuer on the day from the day such written
notice is received by the Trustee; (d) the Initial Credit Facility Issuer's close of .business on the day the interest on
all of the Bonds outstanding has been converted to a Fixed Rate; and (e) the Initial Credit Facility Issuer's close
of business on the day following receipt by the Initial Credit Facility Issuer of a certificate from the Trustee to the
effect that (i) no Bonds remain Outstanding Bonds within the meaning of the Indenture, or (ii) all drawings required
to be made under the Indenture and available under the Initial Credit Facility have been made and honored and,
accordingly, the stated amount of the Initial Credit Facility has been permanently reduced to zero.
The Initial Credit Facility provides that the Termination Date shall be postponed for an additional one-year
period from time to time if the Initial Credit Facility Issuer shall forward to the Trustee by registered mail a written
• notice in substantially the form specified in the Initial Credit Facility not later than the date _ days before the
Termination Date then in effect. The Initial Credit Facility does not provide that the Initial Credit Facility Issuer
-15-
is obliged to postpone the Termination- Date. The Initial Credit Facility provides that the Trustee shall surrender.
• the Initial Credit Facility to the Initial Credit Facility Issuer on the expiration date of the Initial Credit Facility.
The Initial Credit Facility is transferable to any successor Trustee.
The Initial Credit Facility does not provide for payment of any premium upon redemption of the Bonds or
purchase in lieu thereof.
Reimbursement Agreement
The Authority has entered into the Reimbursement Agreement with the Initial Credit Facility Issuer. The
Reimbursement Agreement provides for the issuance of the Initial Credit Facility and the reimbursement of the
Initial Credit Facility Issuer for draws upon the Initial Credit Facility. The Reimbursement Agreement also sets
forth the various other conditions, obligations, representations, covenants, events of default and miscellaneous
provisions applicable to the Initial Credit Facility Issuer and the Authority. See "SUMMARY OF CERTAIN
LEGAL DOCUMENTS--Reimbursement Agreement" in Appendix C herein. The Reimbursement Agreement is
solely for the benefit of the Authority and the Initial Credit Facility Issuer. Neither the Trustee nor any holder of
any Bond will have any right, title or interest in or to the Reimbursement Agreement or any payment made by the
Authority thereunder or any pledge, security interest or lien therein or thereon.
RENEWAL CREDIT FACILITIES; ALTERNATE CREDIT FACII,ITIES
The Authority may, subject to the provisions of the Indenture and the Reimbursement Agreement, at any
time arrange for the deposit with the Trustee of a Renewal Credit Facility in substitution for the Credit Facility then
in effect. Upon the issuance and delivery to the Trustee of a Renewal Credit Facility, the Trustee shall also receive
an opinion of counsel for the Credit Facility Issuer issuing the Renewal Credit Facility in substantially the form of
• the opinion that counsel for the Initial Credit Facility Issuer delivered to the Trustee upon the issuance of the Initial
Credit Facility. The Authority may, subject to the provisions of the Indenture and the Reimbursement Agreement,
at any time arrange for the deposit with the Trustee of an Alternate Credit Facility in substitution for the Credit
Facility then in effect. The Alternate Credit Facility shall expire no earlier than one year from the date of its deposit
with the Trustee and, in the event any of the Bonds bear interest at an Adjustable Long Rate for a Rate Period
extending beyond the .Stated Expiration Date of such Alternate Credit Facility, no earlier than the Credit Facility
which it replaces. Drafts of such Alternate Credit Facility, the related Credit Facility Agreement and any
supplemental Indenture required to be executed in connection with the delivery of the Alternate Credit Facility, and
appropriate information concerning the entity which will issue such Alternate Credit Facility, must be submitted by
the Authority to each Rating Agency then maintaining a rating on the Bonds secured by the Credit Facility then in
effect. The Authority shall request each such Rating Agency to give notice, promptly confirmed in writing, to the
Trustee at .least 40 days (unless a shorter time is acceptable to the Trustee, DTC and the Remarketing Agent) prior
to the date such Alternate Credit Facility is to become effective as to what rating the Bonds entitled to the benefit
of the Alternate Credit Facility will bear after such substitution. In the event Moody's or S&P notifies the Authority
that upon substitution of the Credit Facility the rating on the Bonds will be withdrawn or reduced from the rating
borne prior to such substitution, the Trustee shall give Immediate Notice to the owners of the Bonds bearing interest
at a Weekly Rate or Adjustable Long Rate that such Bonds will be subject to mandatory tender on the Substitution
Date. See "THE BONDS-Mandatory Purchase".
In addition, prior to such replacement by an Alternate Credit Facility, the Authority will deliver to the
Trustee an Opinion of Bond Counsel to the effect that such replacement will not adversely affect the validity or
enforceability of the Bonds in accordance with their terms or any exemption from federal income taxation to which
interest on the Bonds would otherwise be entitled, and an opinion of counsel for the Credit Facility Issuer issuing
the Alternate Credit Facility in substantially the form of the opinion that counsel for the Initial Credit Facility Issuer
delivered to the Trustee upon the issuance of the Initial Credit Facility.
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• Pledged Funds
SECURITY AND SOURCES OF PAYMENT FOR THE BONDS
The Bonds are special obligations of the Authority and are payable solely from and secured exclusively by
alien upon the Pledged Funds, and the Authority is not under any obligation to pay the Bonds except from the
Pledged Funds. The Bonds, and interest on the Bonds, are not a debt or a general obligation of the Authority or
the City, nor a charge, a lien or an encumbrance, legal or equitable, upon property of the Authority or the City or
upon income, receipts or revenue of the Authority or the City, other than those revenues that have been specifically
pledged to the payment of the Bonds. The Authority has no taxing power.
The Pledged Funds consist of (i) the proceeds from the sale of the Bonds, (ii) funds drawn with respect
to Bonds in the Weekly Mode or an Adjustable Long Mode under the Credit Facility then in effect, (iii) the "Hall
of Fame Portion" of the lease rentals to be received by the Authority from the Commission pursuant to a Lease,
dated November 1, 1993 (the "Lease"), between the Authority, as lessor, and the Commission, as lessee, and (iv)
all money and securities from time to time held by the Trustee under the terms of the Indenture (except money 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, and except for money held in trust for the purpose of paying arbitrage
rebate to the federal government, if any), including, without limitation, the money held in .the Reserve Fund and
other trust funds established pursuant to .the Indenture. The "Hall of Fame Portion" of the total .rentals payable
under the Lease means the specified and limited rentals payable for the Project, including the real estate upon which
the Project is located. See "LETTER OF CREDIT", "RENEWAL CREDIT FACILITIES; ALTERNATE CREDIT
FACILITIES" and APPENDIX C--SUMMARY OF CERTAIN LEGAL DOCUMENTS--LEASE.
Reserve Fund
A "South Bend Redevelopment Authority Lease Rental Revenue Bonds of 1994 Reserve Fund" (the
• "Reserve Fund") is established under the Indenture in an amount at least equal to the Reserve Amount (as
hereinafter defined). The Reserve Fund may be applied solely for the purpose of paying the principal of and
interest on the Bonds if any deficiencies occur in the Sinking Fund established for such purpose. See "SUMMARY
OF CERTAIN LEGAL DOCUMENTS--Indenture--Operation of Funds and Accounts" in Appendix C herein.
The Reserve Amount means 109b of the original principal amount of the Bonds. The Authority will
provide the Reserve Amount by depositing in $1,795,000 of the proceeds from the sale of the Bonds into the
Reserve Fund. There is no requirement to replenish the Reserve Fund if the amount therein is less than the Reserve
Amount.
THE PROJECT
A portion of the proceeds of the Bonds will be used by the Authority to construct a college football hall
of fame in South Bend, Indiana, as described more fully below (the "Project"), including the refunding of certain
bond anticipation notes issued in connection with the Project.
The Project consists of construction of a 58,000 square foot facility, on two levels plus a mezzanine, for
use as a college football hall of fame. The Project is located in downtown South Bend, Indiana at the corner of St.
Joseph and Washington Streets, directly across St. Joseph Street from Century Center. Century Center is a civic,
exhibition and convention center, owned by the Authority, with nearly 300,000 annual visitors. The Project will
be connected to Century Center by an underground concourse, thereby facilitating onsite large group programming.
The Project will reflect the look of a traditional football stadium with a facade to match Century Center.
Construction of the Project began on 1994, and completion is scheduled for August,
• 1995.
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The remaining proceeds of the Bonds will be used to finance (i) the Reserve Amount to be deposited into
and iu the costs
• the Reserve Fund, (ii) capitalized interest on the Bonds in the amount of $ ~ ( )
incurred by the Authority with respect to the issuance, sale and delivery of the Bonds.
SOURCES AND USES OF BOND PROCEEDS
The proceeds of the Bonds are expected to be applied as follows:
Sources
Original Principal Amount of Bonds $ 17,950.000
TOTAL $ 17,950,000
Uses
Deposit to Construction Account $
Deposit to Reserve Fund 1,795,000
Capitalized Interest
Costs of Issuance~`~
TOTAL $ 17,950.000
<1> Includes underwriters' discount.
• THE REDEVELOPMENT DISTRICT
The Commission and the Redevelopment District
The Redevelopment District is a special taxing district established pursuant to Indiana Code 36-7-14, as
amended (the "Redevelopment Act"), with geographical boundaries which are coterminous with the geographical
boundaries of the City. .For additional information, see "THE REDEVELOPMENT DISTRICT" in Appendix D
herein. The Commission, which serves as the governing body of the Redevelopment District, has the power to issue
bonds and enter into leases which are payable from a special tax levied on all of the taxable property within the
Redevelopment District, for the purpose of financing local public improvements which promote economic
development within the Redevelopment District.
The Commission is composed of five members, with three being appointed by the Mayor of the City and
two being appointed by the South Bend Common Council, the legislative body of the City. Pursuant to the
Redevelopment Act, each member of the Commission serves fora one year term and until a successor is appointed
and qualified.
The current members of the Commission are listed below:
Paula N. Auburn, President--Owner and principal in CS Associates, Inc., a management
consulting firm; Adjunct Assistant Professor of Business Administration, University of Notre
Dame
Roman Piasecki, Vice President--Retired from Sears Roebuck & Co.
. Theo F. Sharp, Secretary--Retired from Clark Equipment Company
-18-
Michael Donoho, Member--Estimator, Koontz Wagner Electrical Co.
• Philip J. Faccenda, Member--Vice President and General Counsel, University of Notre Dame
The Authority
The Authority is a body corporate and politic, separate from the City pursuant to Indiana Code 36-7-14.5,
as amended (the "Act"), which serves solely as an instrumentality of the City to fmance local public improvements
for lease to the Commission. The Authority has no taxing power. The Authority is comprised of three members
which are appointed by the Mayor of the City. Pursuant to the Act, each member of the Authority serves for a term
of three years, and may be reappointed to subsequent terms.
The current members of the Authority are listed below:
Joseph Wroblewski, President--Retired from Allied Signal Corporation
Andre Gamage, Vice President--Attorney in private practice
Mary Ferlic--Civic leader
Outstanding Bonded Indebtedness
As of the date of the delivery of the Bonds, the Redevelopment District, through bonds or other obligations
issued or incurred by either the Authority or the Commission, has special taxing district bonds outstanding which
are ultimately payable from ad valorem property taxes levied within the Redevelopment District. See "THE
REDEVELOPMENT DISTRICT-CITY DEBT AND TAXATION--DirectDebtandOverlappingDebt" in Appendix
• D herein.
The Redevelopment District, through either the Authority or the Commission, may issue additional bonds
to finance or refinance projects in furtherance of the purposes set forth in the Act and the Redevelopment Act. The
amount and timing of the issuance of additional bonds are subject to a number of conditions that cannot be predicted
at this time.
LITIGATION
There is not now pending or, to the best of the knowledge of the Authority or the Commission, threatened
any litigation restraining or enjoining the issuance, sale, execution or delivery of the Bonds or the payment of rent
under the Lease, or in any way contesting, questioning or affecting the validity of the Bonds or the Lease, or the
proceedings or authority of the Authority or the Commission taken with respect to the issuance or sale of the Bonds,
the execution or delivery of the Lease, or the pledge or application of any moneys or security provided for the
payment of the Bonds. Neither the creation, organization or existence of the Authority or the Commission nor the
title of any of the present members of the Authority or the Commission or other Authority or Commission officers
to their respective offices is being contested.
TAX MATTERS
In the opinion of Baker & Daniels, South Bend, Indiana, Bond Counsel, under law existing and in effect
on the date of such opinion, and assuming continuing compliance by the Authority with its Tax Covenants (as
hereinafter defined), the interest on the Bonds is excludable from gross income for purposes of federal income
taxation pursuant to Section 103 of the Internal Revenue Code of 1986, as amended and as in effect on the date of
• delivery of the Bonds (the "Code"). In the opinion of Bond Counsel, under law existing and in effect on the date
of such opinion, interest on the Bonds is exempt from taxation in the State of Indiana for all purposes except the
-19-
Indiana financial institutions tax and the Indiana inheritance tax. Bond Counsel expresses no other opinion regarding
• any other tax consequences.
As amended by the Tax Reform Act of 1986, the Code prescribes a number of qualifications and
conditions, including continuing issuer compliance, for the interest on state and local government obligations to be
and remain excludable from gross income for federal income tax purposes. Under the Indenture, the Authority has
made certain covenants (the "Tax Covenants") not to take any action or to fail to take any action with respect to
the proceeds of the Bonds or any investment earnings thereon which would result in constituting the Bonds as
"arbitrage bonds" under the Code or would otherwise cause the interest on the Bonds to cease to be excludable from
gross income for purposes of federal income taxation. The Authority also has made certain covenants to comply
with the arbitrage rebate requirements under Section 148 of the Code to the extent applicable. Noncompliance with
the foregoing Tax Covenants may cause the interest on the Bonds to be includable in gross income for federal
income tax purposes retroactive to the date of issuance of the Bonds, in which case the market value of the Bonds
would be materially and adversely affected.
The Bonds are not "private activity bonds" for the purpose of treatment of interest thereon as a direct
preference item in calculating the alternative minimum tax. However, for corporations (as defined for federal
income tax purposes), interest on the Bonds would be includable in the "adjusted current earnings" of a corporation
for purposes of such alternative minimum tax.
.The accrual or receipt of interest on the Bonds may otherwise affect a Bondholder's federal income tax or
state tax liability; however, the nature and extent of such other tax consequences will depend upon a Bondholder's
particular tax status and such Bondholder's other items of income or deduction. The taxpayers who may be affected
by such other consequences include, without limitation, S corporations, financial institutions, property and casualty
insurance companies, individual recipients of Social Security or Railroad Retirement benefits and taxpayers who may
be deemed to have incurred (or continued) indebtedness to purchase or carry tax-exempt obligations.
• No provision has been made for redemption of the Bonds, or for an increase in the interest rate on the
Bonds, in the event that interest on the Bonds becomes subject to income taxation.
The foregoing does not purport to be a comprehensive discussion of the tax consequences of owning the
Bonds. Prospective owners of the Bonds should consult their own tax advisors with respect to the foregoing and
other tax consequences of owning the Bonds.
LEGAL MATTERS
Certain legal matters incident to the authorization and issuance of the Bonds by the Authority are subject
to the approval of Baker & Daniels, South Bend, Indiana, Bond Counsel, whose approving opinion will be delivered
with the Bonds. A form of the opinion which Bond Counsel proposes to render is attached to this Official Statement
as Appendix B. Bond Counsel will render a further opinion that the Bonds, the Indenture and the Lease conform
as to form and tenor with the terms and provisions thereof as summarized in this Official Statement. Bond Counsel
has not been requested to review any information contained in this Official Statement or the appendices hereto, and
expresses no opinion thereon and assumes no responsibility in connection therewith, other than the information under
theheadings "INTRODUCTION," "THEBONDS," "LETTER OF CREDIT," "RENEWAL CREDIT FACILITIES;
ALTERNATE CREDTT FACILITIES, " "SECURITY AND SOURCES OF PAYMENT FOR THE BONDS, " "TAX
MATTERS," "APPENDIX B--FORM OF BOND COUNSEL OPINION" and "APPENDIX C--SUMMARY OF
CERTAIN LEGAL DOCUMENTS". Certain legal matters will be passed on for the Authority and the Commission
by the corporation counsel for the City, and for the Underwriters by their counsel, Barnes & Thornburg, South
Bend, Indiana.
1~
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ENFORCEABII,ITY OF REMEDIES
• The remedies available to the Trustee and the owners of Bonds upon a default are in many respects
dependent upon regulatory and judicial actions which are often subject to discretion and delay. Under existing
constitutional and statutory law and judicial decisions, including specifically Title 11 of the United States Code (the
United States Bankruptcy Code), the remedies provided under the Indenture may not be readily available or may
be limited.
The various legal opinions to be delivered concurrently with the. delivery of the Bonds will be qualified as
to the enforceability of the various legal instruments by limitations imposed by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights and by the exercise of judicial discretion
in appropriate cases.
RATINGS
Standard & Poor's Ratings Group, a division of McGraw Hill ("S&P") has given the Bonds the rating of
" ". The rating reflects such rating agency's current assessment of the creditworthiness of the Initial Credit
Facility Issuer. An explanation of the rating by S&P may be obtained from such agency at 25 Broadway, New
York, New York 10004. Any such rating reflects only the view of such rating agency and is not a recommendation
to buy, sell or hold any of the Bonds. There is no assurance that any rating will continue for any given period of
time or that any rating will not be revised downward or withdrawn entirely if, in the judgment of the rating agency,
circumstances so warrant. Any such downward revision or withdrawal of any rating may have an adverse effect
on the market price or marketability of the Bonds.
UNDERWRITING
• Under a bond urchase agreement with the Authority, the Underwriters listed on the cover page of this
P
Official Statement have agreed to purchase the Bonds subject to condirions at an aggregate purchase price of
$ (net of an underwriters' discount of $ ~•
The Underwriters have agreed to make a bona fide public offering of all of the Bonds. The price and other
terms respecting the offering and sale of the Bonds may be changed from time to time by the Underwriters after
such Bonds are released for sale, and the Bonds may be offered and sold at prices lower than such initial offering
prices, including sales to dealers who may sell the Bonds into investment accounts.
The Authority has agreed to indemnify the Underwriters against certain civil liabilities, including certain
liabilities arising out of or based upon any untrue statement or alleged untrue statement or omission of material facts
contained in this Official Statement.
MISCELLANEOUS
This Official Statement speaks only as of its date, and the information contained herein is subject to change.
The references, excerpts and summaries of all documents referred to herein do not purport to be complete
statements of the provisions of such documents, and reference is made to all such documents for full and complete
statements of all matters relating to the Bonds, the security for the payment of the Bonds and the rights of the
owners thereof. Copies of the Indenture, the Lease and the Reimbursement Agreement will be available for
inspection during regular business hours at the office of the Authority, 1200 County-City Building, South Bend,
Indiana 46601, (219) 235-9371, and following delivery of the Bonds will be on file at the principal corporate trust
• office of the Trustee.
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The Authority is obligated under the Indenture to furnish copies of its annual reports to registered owners
of Bonds who so request. The Authority has not, however, entered into any other contractual commitment to
• provide investors with any other information on a continuing basis.
Any statements made in this Official Statement involving matters of opinions or estimates, whether or not
expressly so stated, are set forth as such and not as representations of fact, and no representation. is made that any
of the estimates will be realized. This Official Statement is submitted in connection with the issuance and sale of
the Bonds and may not be reproduced or used, in whole or in part, for any other purpose. This Official Statement
is not to be construed as a contract or agreement between the Authority, the Commission, the City, the Trustee,
the Underwriters, the Initial Credit Facility Issuer and the purchasers or owners of any Bonds. The delivery of this
Official Statement has been duly authorized by the Authority.
SOUTH BEND REDEVELOPMENT AUTHORITY
By: /s/
Joseph Wroblewski, President
•
•
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APPENDIX A
• INFORMATION CONCERNING THE INITIAL CREDIT FACILITY ISSUER
u
•
•
APPENDIX B
FORM OF BOND COUNSEL OPINION
~~
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(Upon delivery of the Bonds in definitive form, Baker & Daniels,
South Bend, Indiana, bond counsel, proposes to deliver an
• opinion in substantially the form set forth below.)
Re: South Bend Redevelopment Authority Variable Rate Demand Lease Rental
Revenue Bonds of 1994 (College Football Hall of Fame Proiectl
Gentlemen:
We have acted as bond counsel in connection with the issuance by the South Bend Redevelopment Authority
(the "Issuer"), of Seventeen Million Nine Hundred Fifty Thousand Dollars ($17,950,000) aggregate principal amount
of South Bend Redevelopment Authority Variable Rate Demand Lease Rental Revenue Bonds of 1994 (College
1994 the "Bonds"), pursuant to a Indenture
Football Hall of Fame Project) originally dated ~ (
(the "Indenture") between the Issuer and Norwest Bank Indiana, N.A.; as Trustee (the "Trustee"), dated as of June
15, 1994. We have examined a certified transcript of proceedings and such other certificates and documents and
have reviewed such other proceedings and such questions of law as we have deemed necessary as a basis for this
opinion.
It is understood that the rights of the holders of the Bonds, the Issuer and the Trustee and the enforceability
of the Bonds, the Indenture and the Lease (as defined below), may be subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the
extent constitutionally applicable, and that their enforcement may also be subject to the exercise of judicial discretion
in appropriate cases.
As to questions of fact material to our opinion, we have relied, without undertaking to verify the same by
independent investigation, upon representations, covenants and certifications of the Issuer and public officials
• contained in the Indenture and in the certified transcript of proceedings and other certificates furnished to us. We
have not been engaged or undertaken to review the accuracy, completeness or sufficiency of any offering materials
relating to the Bonds, and we express no opinion relating thereto.
Based upon the foregoing, we are of the opinion, under existing law, as follows:
1. The Issuer is duly created and validly existing as a separate body corporate and politic and as an
instrumentality of the City of South Bend, Indiana, with the power to enter into the Indenture and the Lease
described below, perform the agreements on its part contained therein and issue the Bonds.
2. The lease between the Issuer, as lessor, and the South Bend Redevelopment Commission (the
"Commission"), as lessee, dated as of November 1, 1993, and as amended by the Addendum to Lease between the
Issuer and the Commission dated as of ~ 1994, (the lease as so amended shall be
referred to herein as the "Lease"), has been duly entered into in accordance with the provisions of Indiana Code
36-7-14 (the "Act") and is a valid and binding Lease. All taxable property in the City of South Bend
Redevelopment District (the "District") is subject to ad valorem taxation without limitation as to rate or amount to
pay the Lease rental. The Commission is required by the Act and the Lease annually to levy and appropriate an
amount sufficient to pay the Lease rentals during the term of the Lease.
3. The Issuer has duly authorized, sold, executed and delivered the Bonds and has duly authorized
and executed the Indenture. The Bonds are the valid and binding obligations of the Issuer secured by the Indenture.
4. The interest on the Bonds is excludable pursuant to Section 103 of the Internal Revenue Code of
1986, as amended (the "Code"), from gross income for federal income tax purposes, and the Bonds are not "private
activity bonds" under Section 141 of the Code; however, it should be noted that, with respect to corporations (as
• defined for federal income tax purposes), interest on the Bonds is taken into account in determining adjusted current
earnings for the purpose of computing the alternative minimum tax imposed on such corporations.
B-1
The opinions set forth in this paragraph four are subject to the condition that the Issuer comply with all
requirements of the Code that must be satisfied subsequent to the issuance of the Bonds in order that interest thereon
• be, or continue to be, excludable from gross income for federal income tax purposes. The Issuer has covenanted
to comply with each such requirement. Failure to comply with certain of such requirements may cause the interest
on the Bonds to cease to be excludable from gross income for federal income tax purposes retroactive to the date
of issuance of the Bonds. We express no opinion regarding any other federal tax consequences arising with respect
to the Bonds.
5. The interest on the Bonds is exempt from taxation in the State of Indiana for all purposes except
the Indiana financial institutions tax and the Indiana inheritance tax.
Very truly yours,
•
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APPENDIX C
• SUMMARY OF CERTAIN. LEGAL DOCUMENTS
(Indenture, LEASE, REIl~~IBURSEMENT AGREEMENT)
•
Indenture
• THE FOLLOWING IS A SUORT~TO BE A COMPREHENSIVE DESCRIPT ON AND IS QUALIFIED
THIS SUMMARY DOES NOT PURP
IN ITS ENTIRETY BY REFERENCE TO THE INDENTURE.
[TO BE PROVIDED]
LEASE
THE FOLLOWING IS A SUMMARY OF CERTAIN PROVISIONS CONTAINED IN THE LEASE.
THIS SUMMARY DOES NOT PURPORT TO BE A COMPREHENSIVE DESCRIPTION AND IS QUALIFIED
IN TTS ENTIRETY BY REFERENCE TO THE LEASE.
General
In the Lease, the Authority leases to the Commission, as lessee (the "Lessee") two different facilities, the
Project, and an existing civic, convention and exhibition center known as the Century Center Complex. Only the
.lease rentals payable with respect to the Hall of .Fame Portion of the facilities (such real property and improvements
are referred to herein as the "Leased Premises") constitute Pledged Funds under the Indenture. The description of
the Lease herein refers only to such Leased Premises.
Lease rentals are payable from special ad valorem property taxes to be levied on all taxable property m
the Redevelopment District, which is coterminous with the geographical boundaries of the City. The Commission
is obligated by statute, and has covenanted by resolution, to make the annual tax levy to pay the lease rentals to the
extent other funds of the Commission set aside for such purpose are insufficient to pay the lease rentals. The
• Commission intends to pay such lease rentals from certain revenues received from the operation of the Project and
surplus tax increment revenues received from the South Bend Central Development Area, to the extent such
revenues are available. The amount of such revenues which are set aside as of each July 31 to pay lease rentals
under the Lease during July of the following year and January of the next following year, the amount held in the
Reserve Fund not otherwise obligated to pay debt service on the Bonds, and certain other funds of the Authority
on hand and available to pay debt service on the Bonds (including capitalized interest) or for which the Commission
receives credit against the lease rentals which are due, will reduce the amount of taxes levied each year to pay those
lease rentals. The effect of this procedure is that property tax revenues on hand or to be levied, other revenues of
the Commission on hand, and the unobligated amounts held in the Reserve Fund and such other funds. of Authority
are scheduled to be sufficient as of each July 31 to allow the Commission to pay the next three lease rental payments
under the Lease.
The property tax levy to pay the lease rentals is not subject to Indiana budgetary limitations. The levy is
reviewable by the other bodies, including the State Board of Tax Commissioners, vested by Indiana law with the
authority to ascertain that the levy is sufficient, together with other available amounts, to make the lease rental
payments, in the same manner that general obligation bond levies are subject to review. By resolution, the
Commission has established a special account into which taxes so levied are to be deposited, and has pledged such
account for the purpose of paying the lease rentals. In the event of delayed billing; collection, or distribution of
property taxes, sufficient funds may not be available to the Commission to make lease rental payments when due.
Term
The term of the Lease is twenty-four (24) years, beginning on the day the Leased Premises are complete
and ready for use.
•
C-1
Rent
• The first semiannual rental installment is in the amount of. $592,050. Thereafter, the Lessee agrees to pay
rental for the. Leased Premises in equal semiannual installments of $660,000 through and including January 28,
2005, and thereafter in equal semiannual installments of $1,600,000 through and including January 28, 2019. The
first semiannual rental installment will be due on the later of (i) the day that the Leased Premises are complete and
ready for use, or (ii) January 28, 1996. Thereafter, rental will be payable in advance in semiannual installments
for the following six-month period on each July 28 and January 28. The last semi-annual rental payment due before
the expiration of the Lease will be adjusted to provide for rental at the rate specified above from the date such
installment is due to the date of expiration of the Lease. All rentals payable under the terms of the Lease will be
paid by the Lessee to the Trustee.
The Lease provides that the Lessee also will pay any taxes and assessments in connection with the Leased
Premises, and all costs of maintenance, operation and use thereof, so that all rent paid will be net to the Authority.
i and all expenses in connection with the Leased Premises will be the responsibility of the Lessee.
Insurance
The Lessee, at its own expense, will keep the Leased Premises insured against physical loss or damage in
an amount at least equal to the greater of the full replacement cost of the Leased Premises and the option to
purchase price (see "Option to Purchase"), with such exceptions as are ordinarily required by insurers of similar
properties. Blanket property insurance may be used if certain conditions in the Lease are satisfied. The Lessee will
also, at its own expense, maintain rent or rental value insurance in an amount equal to the full rental value of the
Leased Premises for a period of two years against physical loss or damage.
Damage and Destruction of Leased Premises
• The Lease provides that, in the event the Leased Premises are partially or totally damaged or destroyed
so as to render the same unfit, in whole or part, for its intended use: (i) it will then be the obligation of the
Authority to restore and reconstruct the Leased Premises as promptly as may be done, unavoidable strikes and other
causes beyond the control of the Authority excepted; provided, the Authority will not be obligated to restore or
reconstruct the Leased Premises if the amount of the proceeds received from the insurance provided for in the Lease.
plus other money available therefor are insufficient for such purpose, or if the work cannot be completed within
the period covered by rental value insurance; and (ii) the rent will be abated pro rata for the period during which
the Leased Premises or any part thereof is unfit for its intended use.
If the Authority is not obligated to restore and reconstruct the Leased Premises pursuant to the provisions
described above, the insurance proceeds must be applied to the option to purchase price (see "Option to Purchase").
In such circumstances, proceeds of insurance will be used for extraordinary redemption of Bonds without premium.
Furthermore. in certain circumstances, the Authority may direct application of inc~*'ance proceeds to the redemption
of Bonds at the then current redemption price. See "SUMMARY OF CERTAIN LEGAL DOCUMENTS--
Indenture--Insurance--Use of Proceeds from Insurance. "
Option to Purchase
The Lessee has the right and option, on any rental payment upon 30 days' written notice, to purchase the
Leased Premises at a price equal to the amount required to enable the Authority to redeem the Bonds, pay the costs
thereof, and liquidate the Authority if it is to be liquidated.
In the event the Lessee has not exercised its option to purchase the Leased Premises, then upon expiration
of the Lease and full performance by the Lessee of its obligations under the Lease, the Leased Premises will be
conveyed by the Authority to the Lessee.
•
C-2
Defaults
• The Lease provides that, if the Lessee defaults (i) in the payment of any rentals or other sums payable to
the Authority under the Lease, (ii) by failing to comply with the terms of its resolution establishing funds for the
payment of lease rentals, or (iii) in the observance of any other covenant, agreement or condition of the Lease, and
such default continues for ninety (90) days after written notice to correct the same, the Authority may protect and
enforce its rights by proceedings at law or in equity.
REIlVIBURSEMENT AGREEMENT
THE FOLLOWING IS A SUMMARY OF CERTAIN PROVISIONS CONTAINED IN THE
REIMBURSEMENT AGREEMENT. THIS SUMMARY DOES NOT PURPORT TO BE A COMPREHENSIVE
DESCRIPTION AND IS QUALIFIED IN TTS ENTIRETY BY REFERENCE TO THE REIMBURSEMENT
AGREEMENT.
[TO BE PROVIDED]
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•
APPENDIX D
THE REDEVELOPMENT DISTRICT
•
DESCRIPTION OF THE CITY
•
Location
The City of South Bend is located in St. Joseph County in north central Indiana and borders
the State of Michigan. South Bend is approximately 140 miles north of Indianapolis, Indiana
and approximately 90 miles east of Chicago, Illinois.
Population-Employment ~ South Bend
St Toseph County
Population 1950 205,058 .115,911
1960 238,614 132,445
1970 244,827 125,580
1980 241,617 109,727
1990 247,052 105,511
Data reported by the U.S. Census Bureau.
Employment 121,060 Employed; 6,710 Unemployed; Work Force of 127,770 (South Bend
MSA); 5.3% Unemployment Rate as of February 1994.
• De artment of Work Force Development, Employment and
Source. p
Training Services, Indianapolis, Indiana, in cooperation with U.S. Bureau of
Labor Statistics.
Taxes
Assessed Valuation: $625,471,912 for taxes payable in 1994.
Property Tax: $14.8932 for 1993 payable 1994 per $100 of assessed valuation in the South
Bend-Portage taxing district in St. Joseph County, before property tax credit of
approximately 16.1% (paid by State from sales tax receipts). Household goods
are exempt.
Sales & Use Tda ustedtGro slIncome: 3.4 %~of e rnings t $1,000 annual e xemption allowed for
Individual A ~
taxpayer and each dependent.
Excise Tax: Cigarettes -15.6 cents per package. Gasoline -15 cents per gallon.
Automobile Tax: Excise tax in lieu of personal property tax, based on initial retail price and
age of vehicle.
•
• Education
Public Schools: The City of South Bend is served by the South Bend Community School
Corporation which has a current enrollment of approximately 21,352. The
School Corporation includes five high schools, five middle schools and 25
elementary schools.
Colleges and Universities: Institutions of higher education in the City include the University
of Notre Dame, St. Mary's College, Indiana University at South Bend, Purdue
Program, Bethel College, Holy Cross College, Michiana College and Davenport
College.
Transportation
Railroads: Six rail lines provide freight and passenger service to the City and the South Shore
line runs from South Bend to Chicago.
Highways: I-80/90 (Indiana Toll Road); U.S. Highway 20,31 and 33; State Highways 2, 23
and 331.
Trucking: Nearly 50 major interstate carriers travel through South Bend regularly.
Air: The Michiana Regional Airport serves the City with nine carriers. Chicago
O'Hare Airport is approximately 100 miles from the City.
Bus: A municipal bus service (Transpo) is provided within the City.
• Utilities
Electricity: Indiana Michigan Po~~er Company..
Gas: Northern Indiana Public Service Company.
Water/Sewage: The City of South Bend Municipal Water and Sewer Utilities serve the City.
Telephone: Indiana Bell, an Ameritech Company.
Community Data
Police Protection: South Bend Police Department.
Hospitals: There are four acute care hospitals in the South Bend area. Memorial Hospital of
South Bend has 526 beds; St. Joseph Medical Center has 339 beds; Michiana
Community Hospital has 107 beds; Saint Joseph Hospital of Mishawaka has 177
beds.
Recreation: The City of South Bend offers many recreational facilities. The City has 35
playgrounds, 71 public parks providing swimming pools, softball and baseball
.diamonds, tennis courts and one 9-hole and two 18-hole golf courses.
Cultural: The City of South Bend is the home of a minor league baseball team affiliated with
the Chicago White Sox. The St. Joseph River runs through the City providing
boating activities. The East Race Water~Nay is a 2,000 yard man-made rafting
and kayaking course which flows adjacent to the St. Joseph River. Other
attractions include the South Bend Symphony, Morris Civic Auditorium,
Potawatomi Zoo, Studebaker Museum and a 225,000 square foot convention and
exhibit center, the Century Center. Other activities are also available at the
major colleges and universities in the area.
• Financial Institutions
Located in South Bend, Indiana are the following banks with total deposits and total assets
as of December 31,1993: Tota_ 1_ Assets Total Deposits
$2,986,475 $2,270,416
Society National Bank, Indiana 1,428,423 1,147,799
1st Source Bank 729,096 546,206
Valley American Bank & Trust Company 214,048 188,242
Norwest Bank Indiana, N.A.
Major Employers
d their number of employees in South Bend as of August 1993 are as
The major employers an
follows: Type of Business 1993
Employer
University of Notre Dame Education
Airplane & Auto Parts 3,500
2,300
Allied Signal, Inc.
South Bend Community Schools Education 2,300
000
2
Memorial Hospital Medical Care ,
700
1
St. Joseph's Medical Center Medical Care
Militar Vehicles ,
1,500
AM General Corporation Government 1,300
City of South Bend 900
•
St. Joseph County Government
Financial Services 859
1st Source Bank
Construction 850
Carpenter's Local 413
Construction History
Summary of Building Permit History
1989-1993
1993 ~ 1992 1991 1990 1989
Residential Permits 137 125 91
30 121
26 147
25
Commercial/Industrial Permits 39
26 167 193 630
Building Additions/Garages* 1,592 1463 6 13 11
Other Permits 38 - --"
Total Permits
1,793 1,680 353 813 857
* Includes residential and non-residential
•
•
Permit Value:
Residential Permits
Commercial /Industrial
Permits
Building Additions/
Garages
Other, Church and
Institution
Total Value
1993 1992 1991 1990 1989
$ 16,666,768 $16,342,548 $ 8,373,373 $ 10,755,539 $24,395,260
23,532,900 (9) 25,610,886 (6) 8,617,400 (3) 7,370,520 10,752,400
47,201,893 (10) 25,333,841 (7) 13,600,151 (4) 15,540,331 (2) 14,263,983
3,116,585 25,702,193 (8) 8,137,500 (5) 5,077,081 26,863,060 (1)
$ 90,518,146 $92,989,468 $ 38,728,424 $ 38,743,471 $76,274,703
Notes:
(1) Includes a $17,000,000 expansion to the wastewater treatment plant and the $6,118,000
South Bend Library project.
(2) Includes a $5,640,000 surgical center and $1,606,800 addition at Memorial Hospital.
(3) Includes a new $4,701,000 engineering/office building for Bendix Corporation.
(4) Includes a $1,800,000 surgical center and $1,700,000 obstetrical unit additions at St. Joseph
Medical Center.
(5) Includes $5,500,000 Madison Center.
(6) Includes $11,400,000 South Bend Tribune; $3,900,000 Northern Indiana Historical Society;
and $2,600,000 Harwich Farms Apartments. `
(7) Includes $4,500,000 St. Joseph Medical Center; and $8,500,000 in projects involving seven
other local businesses.
(8) Includes $11,300,000 Edison School; $4,000,000 South Bend Health Clinic; and $2,600,000
LaSalle High School
(9) Includes $8,500,000 Meijer, Inc.; $3,000,000 Coca Cola; $3,500,000 Allied Signal
(10) Includes $4,018,000 remodel of Science Hall at University of Notre Dame; $4,400,000 Holy
Cross Care and Rehab. Center; $3,414,000 remodel and addition to Rosary Hall at St.
Mary's College; $3,361,000 Memorial Hospital parking garage; $17,818,000 College of
Business Administration at University of Notre Dame; $7,065,534 remodelling of
Scottsdale Mall; $5,299,118 for three remodellings at Memorial Hospital.
Source of Data and Information
Statistical data and other information set forth under this "Description of the City" have been
compiled by the City's financial consultant, Municipal Consultants, from sources deemed to be
reliable.
•
CITY DEBT AND TAXATION
• (as of December 31,1993)
Direct Debt and Overlapping Debt
$ -0-
Direct Debt
Lease Obligation Debt 3,255,000
1977 Lease Rental Revenue Bonds (Civic Center) 3 810,000
1992 Lease Rental Refunding Revenue Bonds (Parking Facility) 4,895,000
1990 Lease Rental Revenue Bonds (Central Development Area) 2,355,000
1991 Tax-Exempt Lease Rental Revenue Bonds (Airport) 2,835,000
1991 Taxable Lease Rental Revenue Bonds (Stadium) 1,375,000
1992 Taxable Lease Rental Revenue Bonds (Palais Royale)
1993 Taxable Lease Rental Revenue Refunding and Acquisition 4905,000
Bonds (Airport) 5,680,000
1992 Lease Rental Revenue Bonds (Golf Course)
Total-Lease Obligation Debt $ 29,110,000
• Overlapping and Underlying Debt Total
Debt Percent
Applicable Amount
Appli~ cable
1990 Redevelopment District $ 4,800,000 100.00%
86
40 $ 4,800,000
561
780
7
St. Joseph County
Joseph County Public Library
St 19,042,000
8,825,000 .
59.94 ,
,
5,289,705
200
60
.
St. Joseph County Airport Authority 7,000,000
784
042
31 40.86
b2.45 ,
2,8
19,386,219
South Bend Community Schools ,
,
018
984
65 2.85 1,880,544
Penn-Harris-Madison Schools
Penn Township Public Library
k
h ,
,
1,640,000 2.87
47,068
a
awa
Mis
297
044
$42'
_
Total Overlapping Debt ___
_
_
Total Direct and Lease Obligation Debt and $ 71,154,297
Overlapping Debt
Direct Debt Issuance Limitation
• e of direct eneral obligation debt in an amount not to
The City is limited to the issuanc g
exceed 2% of the assessed valuation. The Bonds being issued herein are not subject to the 2%
debt limitation.
$ b25,471,912
Assessed Valuation -1993 Payable 1994
$ 12,509,438
Statutory Limitation - 2% Thereof _0_
Direct Debt of the City
Issuance Margin $ 12,509,438
Per Capita and Debt Ratio Analysis 105,511
Population -1990 $ 625,471,912
Assessed Valuation
Ratio Of
Debt Debt/Assessed
Amount Per Capita Valuation
Description
Total Lease Obligation Debt 29,110,000
$ $ 275.90
48
398 4.65%
6.73
• Total Overlapping and Underlying Debt 42,044,297 .
54,297
1
$ 71 $ 674.38 11.38%
Total
_
,
________
Statement of City Utility Revenue Debt
The City of South Bend owns and operates the municipal water and sewer utilities which
have heretofore issued and have outstanding the following revenue bonds. All such revenue
bonds constitute a lien e Cit e rRevenue bonds sued and outstan'du1g as of December 31 t 1993
direct obligations of th y
~a~ere as follows:
Final
Utili Maturit
Sewage Works -1993 2009
Waterworks -1993 2009
Total
Outstanding
December 31,1993
$ 9,495,000
5,100,000
$ 14,595,000
Tax Increment Revenue Debt
Additional debt which is not an obligation of the City as of December 31,1993 includes the
•
followin
g
Original Final Outstanding
Issue Amount Maturi 12 31 93 Purpose
1985 000
200
$4 2/01/03 $ 750,000 (1) Tax Increment Revenue Bonds
1986 ,
,
000
750
1 2/01/04 350,000 (1) Tax Increment Revenue Bonds
1988 ,
,
000
800
1 2/01/05 1,775,000 Tax Increment Revenue Bonds
1992 ,
,
000
760
4 2/01/04 4,760,000 ds
ven
1992 ,
,
2,600,000 2/01/13 2,600,000 (2) ue Bond
Tax Increment Re
Total $ 10,235,000
(1} Bonds not refunded by 1992 Tax Increment Refunding Bonds.
(2) A Bond Anticipation Note. is presently outstanding with respect to this issue.
Debt Issues
The City's Redevelopment Authority issued Lease Rental Revenue Bonds of 1994 in the
amount of $7,160,000 on May 24, 1994. This issuance is scheduled to close on June 15,1994. The
• . City does not anticipate the issuance of additional debt in 1994.
Analysi s of Assessed Valuation
Assessed valuation of real and pers onal property represents approximately one-third of true
tax value and is net of exemptions.
City of South Bend
Assessment Year Net Assessed Valuation
1985-86 $ 433,033,280
1986-87 ~ 429,b98,477
1987_88 434,054,735
1988-89 434,418,266
1989-90 646,730,745
1990-91 614,580,764
1991-92 617,573,087
1992-93 623,329,408
1993-94 625,471,912
Record of Taxes Levied and Collected
• City of South Bend Totals
Current &
Collection Delinquent
yew Levied Collected
1989 $ 29,631,236 29,189,066 98.5
1990 31,218,340 28,493,470 91.3
1991 31,382,952 30,631,162 97.6
1992 32,179,263 32,304,257 100.4
1993 34,251,951 34,017,611 99.3
Total Tax Rates (1)
(Per $100 Assessed Valuation)
Analysis of Cit~of South Bend Porte Township* Tax Rate (b y near of collection)
_
* (Largest Township in South Bend corporation limits)
1994 1993 1992 1991 1990
0100 $ .0100 $
$ .0100 $ .0100 $ .0100
State .
6505 2.3795
2 2.5393 1.9770 2.1830
County
Townships-Portage
.
.0757 .4140
.0659
2089
5
.0632
9250
4
.0539
4.0765
Schools 5.2573 4.9691
7726
5 7 .
8241
7 .
6.9752 6.3234
• .
7.993 .
Corporation
neral Fund
G
4.5045 4.2455
4.0480
3.9095
3.4544
e
Police Pension .1431 .1757 .1614
2144 .1557
0898 .1900
.2990
Firemen s Pension .1437 .2223
7737 .7154 .
.5682 .
.6773 .4896
Park & Recreation .
0011 .0562 .0656 .0443
Park Bond .
Urban Redevelopment .0036 .0580
Bond Fund .0138 .0054
Building Demolition
Cumulative Cap.
1200 .1200 .1200 .0839
Development • .0305 .0218
Discovery Hall Museum .0030 .0039
Junk Vehicle
0150
.0424
.0376
.0360
Civic Center Oper. .
Cumulative Fire .1200
.1408
Stadium Bond
6850 5.495
5
5.2106
5.1064
4.8271
Total Corporation .
Library
.6455 .6422
.6234
1586
.5147
2813
.4798
.0000
Redevelopment Dst. .2465 .1744 . .
Transportation/
3227 3.113
.3374
.3273
.3485
Airport
.
Total City Tax Rate S 14.8932 $ 14.3955 $ 14.1441 $ 13.2053 $ 11.6307
l~TOte: All tax rates exhibited are before deduction of 14.0% -16.5% thereof for ro ert tax relief funds rovided from State
~f Indiana tax sources and before deduction of homestead credits.
Largest County Taxpayers
r~
•
Taxpa~ r
Allied/Bendix Corporation
New Energy Company
Indiana Bell Telephone Co.
Indiana Michigan Power Co.
Edward Rose of Indiana
City of South Bend Redevelopment
(Marriott)
Ameritech
Ralph & Wanda Williams
AT&T Communications
Northern Indiana Public Service Co.
Tempe of Business
1993-94
Assessed Valuation
Airplane & Auto Pazts
Ethanol Plant
Telephone Utility
Electric Utility
Apartments
Hotel
Communications
Apartments
Telephone Utility
Gas Utility
Total
Ten Largest Taxpayers as a Percentage of
Total Assessed Valuation
$ 25,817,240
12,605,585
10,558,850
10,080,440
7,063,900
5,346,495
5,160,000
4,655,740
4,614,580
4,591,980
$ 90,494,810
14.5%
Statistical data and other information set forth under the caption "City Debt and Taxation'
have been compiled by the City's financial consultant, Municipal Consultants, from sources
deemed to be reliable.
Sources of Data and Information
•
•
•
APPENDIX E
DEFINITIONS OF CERTAIN TERMS
"Adjustable Long Mode" means any Adjustment Period during which the Rate Determination Date and Rate
Change Date for each Rate Period therein (which shall have a duration of 30 days or more) shall be designated by
• the Authority.
"Adjustable Long Rate" means, for each Rate Period within an Adjustable Long Mode applicable to a
Bond, a fixed per annum interest rate borne by such Bond established pursuant to the Indenture equal to the lowest
interest rate which, in the judgment of the Remarketing Agent, would enable such Bond to be remarketed at the
principal amount thereof, plus accrued interest thereon, if any, on the Rate Change Date for such Rate Period.
"Adjustment Date" means (a) the Closing Date, (b) any date which is the first day of an Adjustment Period
designated by the Remarketing Agent in the manner set forth in the Indenture, (c) any Substitute Adjustment Date
designated by the Authority in the manner set forth in the Indenture and (d) any proposed Conversion Date
designated by the Authority in the manner set forth in the Indenture.
"Adjustment Period" means, with respect to each Bond, each period commencing on an Adjustment Date
for such Bond to and including Maturity thereof or the day immediately preceding the immediately succeeding
Adjustment Date for such Bond, during which period such Bond shall operate in one type of Mode.
"Alternate Credit Facility" means a credit facility (other than (a) the Initial Credit Facility or (b) a Renewal
Credit Facility), including, without limitation, a letter of credit of a commercial bank or a credit facility from a
financial institution (including a United States branch of a foreign bank), or a combination thereof, which provides
security for payment of the principal of and interest on the Bonds when due (referred to in this definition as "credit
support") and for payment of the purchase price of Bonds delivered or deemed delivered in accordance with the
Indenture (referred to in this definition as "liquidity support"); provided that an Alternate Credit Facility may be
issued to provide only credit support or liquidity support so long as a separate Alternate Credit Facility or Renewal
Credit Facility provides at all times while such Alternate Credit Facility is in effect complementary credit support
or liquidity support, as the case may be, so that at all times while any of the Bonds bear interest at a Weekly Rate
or an Adjustable Long Rate such Bonds shall be entitled.to credit support and liquidity support. Any amendment
• of a Credit Facility which is not a Renewal Credit Facility shall be an Alternate Credit Facility.
"Authorized Denomination" means, prior to the Conversion Date with respect to a particular Bond,
$100,000 or any integral multiple thereof, except for one Bond issuable in any amount greater than $100,000, and
after the Conversion Date with respect to a particular Bond, $5,000 or any integral multiple thereof.
"Bond Purchase Fund" means the trust fund so designated which is created and established pursuant to the
Indenture.
"Business Day" means a day of the year which is not (a) a day on which banking institutions are authorized
or required to close in New York, New York, or in the cities where the principal offices of the Trustee,
Remarketing Agent, Tender Agent and Credit Facility Issuer are located or (b) a day on which the New York Stock
Exchange is closed.
"Capitalized Interest Account" means the account so designated which is created and established pursuant
to the Indenture.
"Closing Date" means the date of the initial authentication and delivery of the Bonds.
"Construction Fund" means the trust fund so designated which is created pursuant to the Indenture.
"Conversion Date" means an Adjustment Date for any Bond on which it begins to bear interest at a Fixed
Rate.
"Demand Date" means with respect to any Bond bearing interest at a Weekly Rate, the Business Day
i specified in the notice received by the Tender Agent upon which the owner of such Bond intends to tender such
E-1
Bond (or any portion thereof in an Authorized Denomination) for purchase, which Business Day shall be not less
than seven calendar days after the date such notice is received.
• " " d'ustment Period commencing on the Conversion Date for a Bond and ending
Fixed Mode means the A ~
on the Maturity thereof, as established pursuant to the Indenture.
"Fixed Rate" means, for the Fixed Mode applicable to a Bond, a fixed per annum interest rate borne by
such Bond established pursuant to the Indenture equal to the lowest interest rate which, in the judgment of the
Remarketing Agent, would enable such Bond to be remarketed at the principal amount thereof on the Conversion
Date for such Fixed Mode.
"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 instrumentality thereof when
such obligations aze backed by the full faith and credit of the United States of America.
"Immediate Notice" means notice by telephone, telex or telecopier to such address as the addressee shall
have directed in writing, promptly followed by written notice by first class mail, postage prepaid; provided,
however, that if any Person required to give an Immediate Notice shall not have been provided with the necessary
information as to the telephone, telex or telecopier number of an addressee, Immediate Notice shall mean written
notice by first class mail, postage prepaid.
"Interest Component" means the maximum amount stated in the Credit Facility (as reduced and reinstated
from time to time in accordance with the terms thereof) which may be drawn for the payment of accrued interest
on the Bonds or for the payment of the portion of the purchase price of Tendered Bonds corresponding to interest
accrued on the Tendered Bonds.
• "Interest Coverage Period" means the number of days specified in the Credit Facility, initially 57 days,
and any other number of days as may be required by the Indenture, which is used to determine the Interest
Component.
"Interest Coverage Rate" means the rate which is used to determine the Interest Component which shall
be 129b for Bonds secured by the Initial Credit Facility, and shall be specified for Bonds bearing interest in each
parEiculaz Mode subsequent to the term of the Initial Credit Facility by the Remarketing Agent as the maximum
interest rate on such .Bonds, in writing to the Trustee, at the time such Bonds commence bearing interest in
accordance with such Mode as such specification may be changed from time to time by the Remarketing Agent
subject to compliance with the Indenture.
"Interest Payment Date" means (a) for each Bond, each Adjustment Date (including without limitation a
proposed Conversion Date) therefor, (b) for any Bond in a Weekly Mode, the first Business Day of each calendar
month, (c) for any Bond in an Adjustable Long Mode for any Rate Period which exceeds 366. days duration, each
February 1 and August 1, (d) for any Bond in an Adjustable Long Mode, each Rate Change Date, (e) for any Bond
in a Fixed Mode, each February 1 and August 1, commencing as provided in the Indenture, (f) for any Pledged
Bond, the date such Pledged Bond is remarketed pursuant to the Remarketing Agreement, (g) for each Bond, the
Maturity thereof, (h) for any Bond bearing interest at a Weekly Rate or an Adjustable Long Rate, any Substitution
Date, and (i) any Renewal Date on which the Bonds are subject to mandatory tender as provided in the Indenture.
"LOC Interest Sub-account" means the separate sub-account in the Principal and Interest Account which
is created and established therein pursuant to the Indenture.
"LOC Principal Sub-account" means the separate account in the Principal and Interest Account which is
created and established therein pursuant to the Indenture.
"LOC Redemption Account" means the separate account in the Redemption Fund which is created and
established therein pursuant to the Indenture.
E-2
"Maturity" means February 1, 2019, and, with respect to each Bond which has been assigned a specific
mandatory Bond Sinking Fund redemption date or maturity date, means such mandatory -Bond Sinking Fund
• redemption date.
"Mode" means a Weekly Mode, Adjustable Long Mode or Fixed Mode.
"Moody's" means Moody's Investors Service Inc., a corporation organized and existing under the laws of
the State of Delaware, its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall
no longer perform the functions of a securities rating agency, "Moody's" shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Trustee, at the written direction of the Authority
with written notice to the Remarketing Agent and the Credit Facility Issuer.
"No-Call Period" means the period of time during which a Bond in an Adjustable Long Mode or a Fixed
Mode may not be called for optional redemption.
"Operation and Reserve Fund" means the trust fund so designated which is created and established pursuant
to the Indenture.
"Opinion of Bond Counsel" means a written opinion of a law firm having a national reputation in the field
of municipal law whose opinions are generally accepted by purchasers of municipal bonds, which counsel and
opinion, including the scope, form, substance and other aspects thereof, is acceptable to the Authority and the
Trustee, and which opinion may be based upon a ruling or rulings of the Internal Revenue Service.
"Outstanding Bonds" or "Bonds outstanding" or "outstanding Bonds" means, as of any given date, all Bonds
which have been duly authenticated and delivered under this Indenture, except:
(a) Bonds cancelled after purchase in the open market or because of payment at or redemption prior
• to Maturity;
(b) Bonds for the payment or redemption of which cash or Government Obligations or both shall have
been theretofore deposited with the Trustee (whether upon or prior to the Maturity or redemption date of any such
Bonds) in accordance with Article XII hereof; provided that if such Bonds are to be redeemed prior to the Maturity
thereof, notice of such redemption shall have been given or arrangements satisfactory to the Trustee shall have been
made therefor, or waiver of such notice satisfactory in form to the Trustee shall have been filed with the Trustee;
(c) ~ Bonds deemed to be tendered in accordance with the Indenture or no longer deemed to be
outstanding by virtue of being called for redemption as provided in the Indenture; and
(d) Bonds in lieu of which other Bonds have been authenticated under the Indenture.
"Person" means any natural Person, firm, joint venture, association, partnership, business trust,
corporation, public body, agency or political subdivision thereof or any other similar entity.
"Pledge Agreement" means the Pledge Agreement among the Authority, the Credit Facility Issuer and the
Trustee, as the same may be amended, supplemented or assigned from time to time, or any similar agreement as
may be substituted therefor.
"Pledged Bonds" means Tendered Bonds purchased with moneys drawn under the Credit Facility and
pledged to the Credit Facility Issuer in accordance with the Pledge Agreement.
"Principal and Interest Account" means the account so designated which is created and established pursuant
to the Indenture.
"Principal Office" means (a) when used with respect to the Trustee, the principal corporate trust office of
the Trustee located in South Bend, Indiana, (b) when used with respect to the Paying Agent, the Tender Agent and
E-3
the Remarketing Agent, the respective offices thereof designated in writing to the Trustee unless, in the case of the
Paying Agent, .the Trustee is performing such functions, in which case. it shall mean the Principal Office of the
• Trustee, and (c) when used with respect to the Credit Facility Issuer, the office specified in the Credit Facility or
such other offices designated as such by the Credit Facility Issuer in writing to the Trustee, the Authority, the
Tender Agent and the Remarketing Agent.
"Qualified Investments" 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 Corporation 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.
"Rate Change Date" means for each Rate Period (a) during any Weekly Mode, Wednesday or such other
day of the week designated as such by the Remarketing Agent from time to time, (b) during any Adjustable Long
Mode, the Business Day(s) specified in a notice delivered to the Trustee and the Tender Agent, and (c) each
Adjustment Date.
"Rate Determination Date" means for (a) each Rate Period during any Weekly Mode, Tuesday or such
other day of the week designated as such by the Remarketing Agent from time to time next preceding the Rate
Change Date for such Rate Period (unless such day is not a Business Day, in which case the Rate Determination
Date shall be the immediately preceding Business Day), (b) each Rate Period during any Adjustable Long Mode,
the Business Day(s) specified in a notice delivered to the Trustee and the Tender Agent which Business Day shall
not be less than one calendar day nor more than seven calendar days prior to the first day of such Rate Period,
(c) each Rate Period during a Fixed Mode, the date of the firm underwriting or purchase contract from a recognized
firm of bond underwriters or recognized institutional investors to underwrite or purchase all Bonds to be converted
on the Conversion Date at a price of 100 % of the principal amount thereof, (d) the Rate Period following a
proposed Conversion Date in the event of a failed conversion, such proposed Conversion Date, (e) the Rate Period
following a failed conversion to a new Mode, the proposed Adjustment Date, and (f) a Rate Period commencing
on a Substitution Date, such Substitution Date.
"Rate Period" means, with respect to each Bond, each period commencing on a Rate Change Date for such
Bond to and including the Maturity thereof or the day immediately preceding the immediately succeeding Rate
Change Date for such Bond, during which period such Bond shall bear interest at one particular interest rate.
"Rating Agency" means Moody's or S&P.
"Rating Decline Notice" means a notice. received by the Authority from any Rating Agency then
maintaining a rating on any of the Bonds secured by the Credit Facility that, upon substitution of an Alternate Credit
Facility for the Credit Facility then in effect, the rating on such Bonds will thereafter be withdrawn or reduced from
the rating borne by such Bonds immediately prior to such substitution.
"Record Date" means (a) with respect to any Bond during a Weekly Mode or an Adjustable Long Mode
for any Rate Period of 366 days or less, the Business Day immediately preceding each Interest Payment Date,
(b) with respect to any Bond during an Adjustable Long Mode for any Rate Period exceeding 366 days or during
a Fixed Mode, January 15 or July 15 (whether or not a Business Day) preceding each Interest Payment Date.
"Redemption Fund" means the trust fund so designated which is created and established pursuant to the
Indenture.
E-4
"Remarketing Agent" means the placement or remarketing agent at the time serving as such under the
Remarketing Agreement and designated as the Remarketing Agent for purposes of this Indenture. The initial
Remarketing Agent is First Chicago Capital Markets, Inc.
"Remarketing Agreement" means the Remarketing Agreement dated as of June 1, 1994, between the
Authority and the Remarketing Agent, as the same may be amended, supplemented or assigned from time to time,
or any similar agreement as may be substituted therefor.
"Renewal Credit Facility" means a Credit Facility provided in accordance with this Indenture which has
been issued with terms and conditions identical to, and by the same provider of, the Credit Facility in substitution
for which the Renewal Credit Facility is to be provided, except for:
(a) the Stated Expiration Date;
(b) an increase or decrease in the Interest Coverage Rate or the Interest Coverage Period;
(c) an increase or decrease in the Interest Component;
(d) an increase or decrease in the portion of the Credit Facility designated to pay premium upon
redemption or purchase of Bonds to the extent required or permitted by the Indenture or to pay principal upon
mandatory sinking fund redemption of Bonds;
(e) changes in terms and conditions which in the judgment of the Trustee are not adverse to the
interests of the Authority, the Trustee or any Bondholder; or
(f) any combination of (a), (b),(c), (d) and' (e).
the a regiment
"Renewal Credit Facility Agreement" means, with respect to any Renewal Credit Facility, g
pursuant to which the Credit Facility Issuer agrees to issue such Renewal Credit Facility or allow the prior Credit
Facility to be renewed; a Renewal Credit Facility Agreement may consist of a supplement or amendment to the
existing Credit Facility Agreement.
"Renewal Date" means a date which is 20 days prior to the Stated Expiration Date of the Credit Facility
at the time in effect (or the next preceding Business Day if such day is not a Business Day).
"Sinking Fund" means the trust fund so designated which is created and established pursuant to the
Indenture.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., its successors and its
assigns, and, if division shall be dissolved or liquidated or shall no longer perform the functions of a securities
rating agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating agency designated
by the Trustee, at the written direction of the Authority, and the Remarketing Agent and written consent of the the
Credit Facility Issuer.
"Stated Expiration Date" means the stated date of expiration or termination of the Credit Facility, including
any extensions thereof.
"Substitute Adjustment Date" means any Business Day during any Adjustment Period for Pledged Bonds
designated by the Authority in accordance with the Indenture as the first day of a new Adjustment Period.
"Substitution Date" means the date specified pursuant to the Indenture upon which an Alternate Credit
Facility is to be substituted for the Credit Facility then in effect if the Authority has received a Rating Decline
Notice with respect to such substitution, which date must be a Business Day and, if any Bonds bear interest at an
Adjustable Long Rate, such Business Day must be a Rate Change Date for all such Bonds, and, in any case, such
E-5
Business-Day must be a date on which the- Credit Facility for which substitution is being made is available to be
drawn upon. "
"Tender Agent initially means the Trustee or any agent designated by the Trustee pursuant to the
Indenture.
"Tendered Bonds" means Bonds tendered or deemed tendered for purchase pursuant to the Indenture.
"Weekly Mode" means any Adjustment Period during which Rate Determination Dates occur on the
Business Day of each calendar week next preceding the Rate Change Date in such calendar week specified by the
Remarketing Agent in the manner set forth in the Indenture.
"Weekly Rate" means, for each Rate Period within a Weekly Mode applicable to a Bond, a fixed per
annum interest rate borne by such Bond established pursuant to the Indenture equal to the lowest interest rate which,
in the judgment of the Remarketing Agent, would enable such Bond to be remarketed at the principal amount
thereof, plus accrued interest thereon, if any, on the Rate Change Date for such Rate Period.
l
u
LJ
MCK 46873
E-6