HomeMy WebLinkAboutD-2719-24 Proscenium III Bond Ordinance with ExhibitsSponsor: Councilor Aasen
ORDINANCE D-2719-24
AN ORDINANCE OF THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA, AUTHORIZING THE
ISSUANCE OF ECONOMIC DEVELOPMENT TAX
INCREMENT REVENUE BONDS TO SUPPORT THE
PROSCENIUM III PROJECT, AND AUTHORIZING AND
APPROVING OTHER ACTIONS IN RESPECT THERETO
Synopsis:
Ordinance authorizes the issuance of developer TIF bonds by the City of Carmel,
Indiana, to finance improvements to support the development of the Proscenium III Project.
WHEREAS, the City of Carmel, Indiana (the “City”), is a municipal corporation and
political subdivision of the State of Indiana and by virtue of I.C. 36-7-11.9 and I.C. 36-7-12
(collectively, the “Act”), is authorized and empowered to adopt this ordinance (this “Bond
Ordinance”) and to carry out its provisions;
WHEREAS, Novo Development Group, LLC or an affiliate thereof (the “Company”),
desires to finance the design and construction of certain improvements described in Exhibit A
hereto which are located in the Integrated 126th Street Corridor Economic Development Area
(collectively, the “Projects”);
WHEREAS, the Company has advised the City of Carmel Economic Development
Commission (the “Commission”) and the City that it proposes that the City issue its taxable or
tax-exempt Economic Development Tax Increment Revenue Bonds, Series 20__ (Proscenium III
Project), in one or more series (with such different or additional series designation determined to
be necessary or appropriate) in an aggregate amount not to exceed Nineteen Million Dollars
($19,000,000) (the “Bonds”), under the Act and provide the proceeds of such Bonds to the
Company for the purpose of financing the Projects;
WHEREAS, the completion of the Projects results in the diversification of industry, the
creation of jobs and the creation of business opportunities in the City;
WHEREAS, pursuant to I.C. § 36-7-12-24, the Commission published notice of a public
hearing (the “Public Hearing”) on the proposed issuance of the Bonds to finance the Projects;
WHEREAS, on the date specified in the notice of the Public Hearing, the Commission
held the Public Hearing on the Projects; and
WHEREAS, the Commission has performed all actions required of it by the Act
preliminary to the adoption of this Bond Ordinance and has approved and forwarded to the
Common Council the forms of: (1) a Financing Agreement between the City and the Company
(the “Financing Agreement”); (2) a Trust Indenture between a trustee to be selected by the
Controller of the City (the “Trustee”) and the City (the “Indenture”); (3) the Bonds; and (4) this
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Bond Ordinance (the Financing Agreement, the Indenture, the Bonds, and this Bond Ordinance,
collectively, the “Financing Agreements”);
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA, THAT:
Section 1. Findings; Public Benefits. The Common Council hereby finds and
determines that the Projects involve the acquisition, construction and equipping of an
“economic development facility” as that phrase is used in the Act; that the Projects will
increase employment opportunities and increase diversification of economic development
in the City, will improve and promote the economic stability, development and welfare in
the City, will encourage and promote the expansion of industry, trade and commerce in
the City and the location of other new industries in the City; that the public benefits to be
accomplished by this Bond Ordinance, in tending to overcome insufficient employment
opportunities and insufficient diversification of industry, are greater than the cost of
public services (as that phrase is used in the Act) which will be required by the Projects;
and, therefore, that the financing of the Projects by the issue of the Bonds under the Act:
(i) will be of benefit to the health and general welfare of the City; and (ii) complies with
the Act.
Section 2. Approval of Financing. The proposed financing of the Projects by
the issuance of the Bonds under the Act, in the form that such financing was approved by
the Commission, is hereby approved.
Section 3. Authorization of the Bonds. The issuance of the Bonds, payable
solely from revenues and receipts derived from the Financing Agreements, is hereby
authorized.
Section 4. Terms of the Bonds. (a) The Bonds, in the aggregate principal
amount not to exceed Nineteen Million Dollars ($19,000,000), shall (i) be executed at or
prior to the closing date by the manual or facsimile signatures of the Mayor and the Clerk
of the City; (ii) be dated as of the date of their delivery; (iii) for each series of the Bonds,
mature on a date not later than twenty-five years after the date of the first draw of
principal on such series of the Bonds; (iv) bear interest at such rates as determined with
the purchaser thereof (the “Purchaser”) in an amount not to exceed nine percent (9.00%)
per annum, with such interest payable as provided in the Financing Agreements, and
which interest may be taxable or tax-exempt, as determined by the Mayor and the
Controller of the City, with the advice of the City’s bond counsel, prior to the issuance of
the Bonds; (v) be issuable in such denominations as set forth in the Financing
Agreements; (vi) be issuable only in fully registered form; (vii) be subject to registration
on the bond register as provided in the Indenture; (viii) be payable in lawful money of the
United States of America; (ix) be payable at an office of the Trustee as provided in the
Indenture; (x) be subject to optional redemption prior to maturity and subject to
redemption as otherwise provided in the Financing Agreements; (xi) be issued in one or
more series; and (xii) contain such other terms and provisions as may be provided in the
Financing Agreements.
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(b) The Bonds and the interest thereon do not and shall never constitute an
indebtedness of, or a charge against the general credit or taxing power of, the City, but
shall be special and limited obligations of the City, payable solely from revenues and
other amounts derived from the Financing Agreements. Forms of the Financing
Agreements are before this meeting and are by this reference incorporated in this Bond
Ordinance, and the Clerk of the City is hereby directed, in the name and on behalf of the
City, to insert them into the minutes of the Common Council and to keep them on file.
Section 5. Sale of the Bonds. The Mayor is hereby authorized and directed,
in the name and on behalf of the City, to sell the Bonds to the Purchaser at such prices as
are determined on the date of sale and approved by the Mayor of the City.
Section 6. Execution and Delivery of Financing Agreements. The Mayor and
the Clerk of the City are hereby authorized and directed, in the name and on behalf of the
City, to execute or endorse and deliver the Financing Agreement, the Indenture, and the
Bonds, submitted to the Common Council, which are hereby approved in all respects.
Section 7. Changes in Financing Agreements. The Mayor and the Clerk of
the City are hereby authorized, in the name and on behalf of the City, without further
approval of the Common Council or the Commission, to approve such changes in the
Financing Agreements as may be permitted by Act, such approval to be conclusively
evidenced by their execution thereof.
Section 8. Reimbursement from Bond Proceeds. The City hereby declares its
intent to issue the Bonds for the purpose of financing the Projects, which Bonds will not
exceed $19,000,000, and pursuant to Treas. Reg. §1.150-2 and IC 5-1-14-6(c), to
reimburse costs of the Projects (including costs of issuing the Bonds) from proceeds of
the sale of such Bonds.
Section 9. General. The Mayor and any other officer of the City, and each of
them, are hereby authorized and directed, in the name and on behalf of the City, to
execute or endorse any and all agreements, documents and instruments, perform any and
all acts, approve any and all matters, and do any and all other things deemed by them, or
either of them, to be necessary or desirable in order to carry out and comply with the
intent, conditions and purposes of this Bond Ordinance (including the preambles hereto
and the documents mentioned herein), the Projects, the issuance and sale of the Bonds,
and the securing of the Bonds under the Financing Agreements, and any such execution,
endorsement, performance or doing of other things heretofore effected be, and hereby is,
ratified and approved.
Section 10. Binding Effect. The provisions of this Bond Ordinance and the
Financing Agreements shall constitute a binding contract between the City and the
holders of the Bonds, and after issuance of the Bonds this Bond Ordinance shall not be
repealed or amended in any respect which would adversely affect the rights of the holders
of the Bonds as long as the Bonds or interest thereon remains unpaid.
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Section 11. Repeal. All ordinances or parts of ordinances in conflict herewith
are hereby repealed.
Section 12. Effective Date. This Bond Ordinance shall be in full force and
effect immediately upon adoption and compliance with I.C. § 36-4-6-14.
Section 13. Copies of Financing Agreements on File. Two copies of the
Financing Agreements incorporated into this Bond Ordinance were duly filed in the
office of the Clerk of the City, and are available for public inspection in accordance with
I.C. § 36-1-5-4.
PASSED by the Common Council of the City of Carmel, this _____ day of _____________,
2024, by a vote of ______ ayes and _____ nays.
COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA
___________________________________
Anthony Green, President Adam Aasen, Vice-President
___________________________________ ____________________________________
Teresa Ayers Anita Joshi
___________________________________ ____________________________________
Ryan Locke Shannon Minnaar
___________________________________ ___________________________________
Matt Snyder Rich Taylor
___________________________________
Jeff Worrell
ATTEST:
__________________________________
Jacob Quinn, Clerk
Presented by me to the Mayor of the City of Carmel, Indiana this ____ day of
_________________________ 2024, at _______ __.M.
____________________________________
Jacob Quinn, Clerk
Approved by me, Mayor of the City of Carmel, Indiana, this _____ day of
________________________ 2024, at _______ __.M.
_________________________________
Sue Finkam, Mayor
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17th
A
September
Opposed
September
5
Opposed
Not Present
11:15
17th
16th
3
September
A11:30
Opposed
5
ATTEST:
___________________________________
Jacob Quinn, Clerk
Prepared by: Bradley J. Bingham
Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, IN 46204
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EXHIBIT A
DESCRIPTION OF THE PROJECTS
All or any portion of the design and construction of infrastructure improvements,
including but not limited to storm water improvements, utilities relocation, road improvements
and structured parking costs to support a mixed use project development in the Integrated 126th
Street Corridor Development Area consisting of office, hotel, multifamily and retail components,
together with a podium parking structure open to the public.
DMS 43579281.2
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FINANCING AGREEMENT
BETWEEN
[NOVO DEVELOPMENT GROUP, LLC]
AND
CITY OF CARMEL, INDIANA
Dated as of ______________ 1, 20___
Certain of the rights of the Issuer hereunder have been assigned to [Trustee] as trustee under a
Trust Indenture dated as of the date hereof, from the Issuer.
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND EXHIBITS ............................................................................ 2
Section 1.1. Terms Defined .................................................................................................. 2
Section 1.2. Rules of Interpretation ...................................................................................... 3
ARTICLE II REPRESENTATIONS; USE OF BOND PROCEEDS ........................................ 5
Section 2.1. Representations by Issuer ................................................................................. 5
Section 2.2. Representations by Company ........................................................................... 5
ARTICLE III PARTICULAR COVENANTS OF THE ISSUER AND COMPANY .............. 7
Section 3.1. Consent to Assignments to Trustee................................................................... 7
Section 3.2. Payment of Principal and Interest ..................................................................... 7
Section 3.3. Maintenance of Existence ................................................................................. 7
Section 3.4. Company Duties Under Indenture .................................................................... 7
Section 3.5. Indemnity .......................................................................................................... 7
Section 3.6. Payment of Expenses of Issuance of Bonds ..................................................... 8
Section 3.7. Completion and Use of Projects ....................................................................... 8
Section 3.8. Other Amounts Payable by the Company ......................................................... 9
ARTICLE IV EVENTS OF DEFAULT AND REMEDIES THEREFOR .............................. 10
Section 4.1. Events of Default ............................................................................................ 10
Section 4.2. Remedies Cumulative ..................................................................................... 10
Section 4.3. Delay or Omission Not a Waiver .................................................................... 10
ARTICLE V IMMUNITY ........................................................................................................... 12
Section 5.1. Extent of Covenants of the Issuer; No Personal Liability............................... 12
Section 5.2. Liability of Issuer ............................................................................................ 12
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ARTICLE VI SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING
AGREEMENT .................................................................................................................. 13
Section 6.1. Supplements and Amendments to this Financing Agreement ........................ 13
ARTICLE VII MISCELLANEOUS PROVISIONS ................................................................. 14
Section 7.1. Financing Agreement for Benefit of Parties Hereto ....................................... 14
Section 7.2. Severability ..................................................................................................... 14
Section 7.3. Addresses for Notice and Demands ................................................................ 14
Section 7.4. Successors and Assigns................................................................................... 14
Section 7.5. Counterparts .................................................................................................... 15
Section 7.6. Governing Law ............................................................................................... 15
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FINANCING AGREEMENT
This FINANCING AGREEMENT, dated as of ___________ 1, 20___ (the “Financing
Agreement”) between [NOVO DEVELOPMENT GROUP, LLC], a _______________ (the
“Company”), and the CITY OF CARMEL, INDIANA (the “Issuer” or “City”), a municipal
corporation duly organized and validly existing under the laws of the State of Indiana.
PRELIMINARY STATEMENT
WHEREAS, the City of Carmel Redevelopment Commission (the “Redevelopment
Commission”) has established the Integrated 126th Street Corridor Economic Development Area
and, within such area, the Proscenium III Allocation Area (the “Allocation Area”) located in the
City of Carmel; and
WHEREAS, Indiana Code, Title 36, Article 7, Chapters 11.9 and 12, as supplemented
and amended (collectively, the “Act”), authorizes and empowers the Issuer to issue revenue
bonds and enter into agreements with companies to allow companies to construct economic
development facilities and vests the Issuer with powers that may be necessary to enable it to
accomplish such purposes; and
WHEREAS, the Issuer, upon finding that the Projects (as hereinafter defined) and the
proposed financing of the construction thereof will create additional employment opportunities
in the City of Carmel; will benefit the health, safety, morals, and general welfare of the citizens
of the City of Carmel and the State of Indiana; and will comply with the purposes and provisions
of the Act, adopted an ordinance approving the proposed financing; and
WHEREAS, the Issuer intends to issue its Economic Development Tax Increment
Revenue Bonds, Series 20__ (Proscenium III Project) in the aggregate principal amount of
$[XX,XXX,XXX] (the “Bonds”), pursuant to the Trust Indenture dated as of _____________ 1,
20__ (the “Indenture”) between the Issuer and [Trustee], as trustee, and intends to provide the
proceeds of the Bonds pursuant to the provisions of this Financing Agreement to the Company to
finance the Projects; and
WHEREAS, this Financing Agreement provides for the use of the financing by the
Company through the issuance by the Issuer of its Bonds; and
WHEREAS, pursuant to the Indenture, the Issuer will assign certain of its rights under
this Financing Agreement, and the Bonds issued under the Indenture will be payable solely from
TIF Revenues (as defined in the Indenture) of the Issuer’s Redevelopment Commission derived
from the Allocation Area.
In consideration of the premises, the transfer of certain infrastructure to the Issuer, and
other good and valuable consideration, the receipt of which is hereby acknowledged, the
Company and the Issuer hereby further covenant and agree as follows:
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ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1. Terms Defined. Capitalized terms used in this Financing Agreement that are
not otherwise defined herein, shall have the meanings provided for such terms in the Indenture.
As used in this Financing Agreement, the following terms shall have the following meanings
unless the context clearly otherwise requires:
“Act” means, collectively, Indiana Code 36-7-11.9 and 36-7-12.
“Allocation Area” means the Proscenium III Allocation Area established as an allocation
area by the Redevelopment Commission, all in accordance with IC 36-7-14-39 for the purposes
of capturing incremental ad valorem real property taxes levied and collected in such allocation
area.
“Bond Fund” means the Bond Fund established by Section 4.2 of the Indenture.
“Bondholder” or “owner of a Bond” or any similar term means the owner of a Bond.
“Bonds” means the Issuer’s Economic Development Tax Increment Revenue Bonds,
Series 20__ (Proscenium III Project) and any additional series of bonds issued pursuant to the
Ordinance.
“Company” means [Novo Development Group, LLC], or any successors thereto
permitted under Section 7.4 hereof.
“Construction Fund” means the Construction Fund for the Bonds established in Section
4.4 of the Indenture.
“Government Obligations” means bonds, notes, certificates of indebtedness, treasury
bills or other securities constituting direct obligations of, or obligations the timely payment of the
principal of and the interest on which are fully and unconditionally guaranteed by, the United
States of America or any agency or instrumentally thereof when such obligations are backed by
the full faith and credit of the United States of America.
“Indenture” means the Trust Indenture dated as of __________ 1, 20__ between the
Issuer and [Trustee], as trustee, related to the Bonds.
“Issuer” means the City of Carmel, Indiana, a municipal corporation duly organized and
validly existing under the laws of the State.
“Ordinance” means Ordinance D-2719-24 adopted by the Common Council of the Issuer
on ________________, 20__, authorizing the issuance of the Bonds in one or more series in an
aggregate principal amount not to exceed $_______________.
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“Plans and Specifications” means the plans and specifications for the Projects as provided
to the Issuer.
“Pledge Resolution” means Resolution No. ______________ adopted by the
Redevelopment Commission on ___________, 20__, pledging the TIF Revenues to the Issuer.
“Projects” means all or any portion of the design and construction of infrastructure
improvements, including but not limited to storm water improvements, utilities relocation, road
improvements and structured parking costs to support a mixed use project development in the
Integrated 126th Street Corridor Development Area consisting of office, hotel, multifamily and
retail components, together with a podium parking structure open to the public, all of which will
be physically located in, or directly serving or benefiting, the Allocation Area.
“Qualified Investments” mean those investments in: (i) Governmental Obligations; (ii)
other investments permitted by Indiana Code 5-13, as amended from time to time; (iii) money
market funds (including any money market fund for which the Trustee or any affiliate of the
Trustee provides services for a fee) the assets of which are obligations or, or guaranteed by, the
United States of America and which funds are rated at the time of purchase “Aaa” or “Am-G”
(or their equivalent) or higher by S&P; (iv) deposits constituting an obligation of a bank, as
defined by the Indiana Banking Act, Indiana Code 28-2, as amended (including deposits offered
by the Trustee and its affiliates), whose outstanding unsecured long-term issuer is rated at the
time of deposit in any of the three highest rating categories by any rating agency; and (v) U.S.
Dollar denominated deposit accounts, federal funds and banker’s acceptances with domestic
banks whose short term certificates of deposit are rated on the date of the purchase in any of the
three highest rating categories by any rating agency.
“Redevelopment Commission” means the City of Carmel Redevelopment Commission.
“State” means the State of Indiana.
“Tax Increment” means all real property tax proceeds attributable to the assessed
valuation within the Allocation Area as of each January 1 in excess of the base assessed value as
established as of [January 1, 20__]. The incremental assessed value is multiplied by the current
property tax rate (per $100 assessed value).
“TIF Revenues” means Tax Increment received by the Redevelopment Commission and
pledged to the Issuer pursuant to the Pledge Resolution, equal, for any given year, to ninety-five
percent (95%) of the Tax Increment generated from Allocation Area.
“Trustee” means the trustee at the time serving as such under the Indenture.
Section 1.2. Rules of Interpretation. For all purposes of this Financing Agreement,
except as otherwise expressly provided, or unless the context otherwise requires:
(a) “This Financing Agreement” means this instrument as originally executed and as
it may from time to time be supplemented or amended pursuant to the applicable provisions
hereof.
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(b) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as
originally executed. The words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Financing Agreement as a whole and not to any particular Article, Section or
other subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular and the singular as well as the plural.
(d) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
(e) Any terms not defined herein but defined in the Indenture shall have the same
meaning herein.
(f) The terms defined elsewhere in this Financing Agreement shall have the
meanings therein prescribed for them.
(End of Article I)
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ARTICLE II
REPRESENTATIONS; USE OF BOND PROCEEDS
Section 2.1. Representations by Issuer. Issuer represents and warrants that:
(a) Issuer is a municipal corporation organized and existing under the laws of the
State. Under the provisions of the Act, Issuer is authorized to enter into the transactions
contemplated by this Financing Agreement and to carry out its obligations hereunder. Issuer has
been duly authorized to execute and deliver this Financing Agreement. Issuer agrees that it will
do or cause to be done all things within its control and necessary to preserve and keep in full
force and effect its existence.
(b) The Issuer shall issue its Bonds in the amount of $[XX,XXX,XXX] to provide
funds to the Company for the costs associated with the Projects, subject to the consideration of
the execution and delivery of this Financing Agreement, all for the benefit of the holders of the
Bonds, to retain employment opportunities in the City of Carmel, Indiana and to benefit the
health and general welfare of the citizens of the City of Carmel and the State of Indiana, and to
secure the Bonds by pledging certain of its rights and interest in this Financing Agreement to the
Trustee.
Section 2.2. Representations by Company. Company represents and warrants that:
(a) It is [an _______ limited liability company] validly existing under the laws of the
State of ______________ [and authorized to do business in the State of Indiana], is not in
violation of any laws in any manner material to its ability to perform its obligations under this
Financing Agreement, has full power to enter into and by proper action has duly authorized the
execution and delivery of this Financing Agreement.
(b) The provision of financial assistance to be made available to it under this
Financing Agreement from the proceeds of the Bonds and the commitments therefor made by the
Issuer have induced the Company to undertake the Projects and such project will preserve jobs
and employment opportunities within the boundaries of the City of Carmel, Indiana.
(c) Neither the execution and delivery of this Financing Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Financing Agreement, conflicts with or results in a breach of the
terms, conditions or provisions of the Company’s Operating Agreement or any restriction or any
agreement or instrument to which the Company is now a party or by which it is bound or to
which any of its property or assets is subject or (except in such manner as will not materially
impair the ability of the Company to perform its obligations hereunder) of any statute, order, rule
or regulation of any court or governmental agency or body having jurisdiction over the Company
or its property, or constitutes a default under any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of
the Company under the terms of any instrument or agreement, except as set forth in this
Financing Agreement and the Indenture.
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(d) There are no actions, suits or proceedings pending, or, to the knowledge of the
Company, threatened, before any court, administrative agency or arbitrator which, individually
or in the aggregate, might result in any material adverse change in the financial condition of the
Company or might impair the ability of the Company to perform its obligations under this
Financing Agreement.
(e) No event has occurred and is continuing which with the lapse of time or the
giving of notice would constitute an event of default under this Financing Agreement.
(End of Article II)
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ARTICLE III
PARTICULAR COVENANTS OF THE ISSUER AND COMPANY
Section 3.1. Consent to Assignments to Trustee. The Company acknowledges and
consents to the pledge and assignment of the Issuer’s rights hereunder to the Trustee pursuant to
the Indenture and agrees that the Trustee may enforce the rights, remedies and privileges granted
to the Issuer hereunder other than the rights of the Issuer to execute and deliver supplements and
amendments to this Financing Agreement pursuant to Section 6.1 hereof and in addition to the
rights retained by the Issuer pursuant to Section 4.1(c) hereof as well as those rights granted to
the Issuer under Section 3.5 hereof and Section 6.7 of the Indenture.
Section 3.2. Payment of Principal and Interest. (a) In accordance with the Indenture, the
Bonds are payable from the TIF Revenues derived from the Allocation Area.
(b) The Issuer covenants to collect and apply the Tax Increment and the TIF
Revenues in the manner required by Article IV of the Indenture.
Section 3.3. Maintenance of Existence. The Company agrees that it will maintain its
existence as a [limited liability company], will not dissolve or otherwise dispose of all or
substantially all of its assets, and will not consolidate with or merge into another entity, or permit
one or more other entities to consolidate or merge with it; provided, that the Company may,
without violating the agreement contained in this Section, consolidate or merge with another
entity, permit one or more other entities to consolidate or merge into it, or transfer to another
entity organized under the laws of one of the states of the United States all or substantially all of
its assets as an entirety and thereafter dissolve provided (a) the surviving, resulting or transferee
entity, as the case may be, is organized under the laws of one of the states of the United States,
and (b) such entity assumes in writing all of the obligations of the Company herein, including the
obligations of the Company under this Financing Agreement.
Section 3.4. Company Duties Under Indenture. The Company agrees to perform all
matters provided by the Indenture to be performed by the Company and to comply with all
provisions of the Indenture applicable to the Company.
Section 3.5. Indemnity The Company will pay, and protect, indemnify and save the
Issuer (including members, directors, officials, officers, agents, attorneys and employees
thereof), the Bondholders and the Trustee harmless from and against, all liabilities, losses,
damages, costs, expenses (including attorneys’ fees and expenses of the Issuer and the Trustee),
causes of action, suits, claims, demands and judgments of any nature arising from or relating to:
(a) Violation by the Company of any agreement or condition of this Financing
Agreement;
(b) Violation of any contract, agreement or restriction by the Company relating to the
Projects, or a part thereof;
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(c) Violation of any law, ordinance or regulation by the Company in connection with
the Projects, or a part thereof;
(d) Any act, failure to act or misrepresentation by the Company, or any of the
Company’s agents, contractors, servants, employees or licensees; and
(e) The provision of any information or certification furnished by the Company to the
Bondholders in connection with the issuance and sale of the Bonds or the Projects.
The Company hereby further agrees to indemnify and hold harmless the Trustee from and
against any and all costs, claims, liabilities, losses or damages whatsoever (including reasonable
costs and fees of counsel, auditors or other experts), asserted or arising out of or in connection
with the acceptance or administration of the trusts established pursuant to the Indenture, except
costs, claims, liabilities, losses or damages resulting from the gross negligence or willful
misconduct of the Trustee, including the reasonable costs and expenses (including the reasonable
fees and expenses of its counsel) of defending itself against any such claim or liability in
connection with its exercise or performance of any of its duties hereunder and of enforcing this
indemnification provision. The indemnifications set forth herein shall survive the termination of
the Indenture and/or the resignation or removal of the Trustee for so long as the Bonds are
outstanding.
The foregoing shall not be construed to prohibit the Company from pursuing its remedies
against either the Issuer or the Trustee for damages to the Company resulting from personal
injury or property damage caused by the intentional misrepresentation or misconduct of either
the Issuer or the Trustee.
Section 3.6. Payment of Expenses of Issuance of Bonds. The Company shall pay or
cause to be paid from the proceeds of the Bonds the costs of issuance of the Bonds.
Section 3.7. Completion and Use of Projects.
(a) Company agrees that it will, within _____________ (___) months of the closing
of the Bonds, make, execute, acknowledge and deliver any contracts, orders, receipts, writings
and instructions with any other persons, firms or corporations and in general do all things
reasonably within its power which may be requisite or proper, all for the acquisition,
construction, equipping and improvement of the Projects in compliance with the Plans and
Specifications and, upon completion, the Projects will be operated and maintained in such
manner as reasonably possible so as to conform with all applicable zoning, planning, building,
environmental and other applicable governmental regulations and so as to be consistent with the
Act.
(b) The Issuer shall deposit all proceeds from the sale of the Bonds in the manner
specified in Article III of the Indenture, and the Issuer shall maintain such proceeds in the
manner specified in Article IV of the Indenture. Under the Indenture, the Trustee, on behalf of
the Issuer, is authorized and directed to make payments from the Project Fund to pay for the
costs of the Projects, or to reimburse Company for any costs of the Projects, and to pay or
reimburse the costs of issuance for the Bonds. The Company agrees to direct such requisitions to
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the Trustee as may be necessary to effect payments out of the Project Fund, as the case may be,
for costs of the Projects in accordance with Section 4.4 of the Indenture and this Section 3.7.
(c) The Company shall provide a completion certificate with respect to the Projects in
the manner provided in Section 4.4(d) of the Indenture and any moneys remaining in the Project
Fund after completion of the Projects shall be transferred and applied in the manner therein
provided.
Section 3.8. Other Amounts Payable by the Company. The Company covenants and
agrees to pay the following, to the extent that such expenses are not included in the Bonds:
(a) All reasonable fees, charges and expenses, including agent and counsel fees and
expenses, of the Trustee incurred under the Indenture, as and when the same become due to the
extent TIF Revenues of the Redevelopment Commission are not available.
(b) An amount sufficient to reimburse the Issuer for all expenses reasonably incurred
by the Issuer under this Financing Agreement and in connection with the performance of its
obligations under this Financing Agreement or the Indenture.
(c) All reasonable expenses incurred in connection with the enforcement of any rights
under this Financing Agreement or the Indenture by the Issuer, the Trustee or the Bondholders.
(d) All other payments of whatever nature which the Company has agreed to pay or
assume under the provisions of the Financing Agreement.
Notwithstanding anything in this Section 3.8 to the contrary, the Company may, without
creating an event of default as herein defined, after making the payments required by this Section
3.8, contest in good faith the necessity for any such services, fees, charges or expenses of the
Issuer or the Trustee.
(End of Article III)
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ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES THEREFOR
Section 4.1. Events of Default.
(a) It shall be an Event of Default upon the failure of the Company to perform any
covenant, condition or provision hereof and to remedy such default within 30 days after written
notice thereof from the Trustee to the Company.
(b) During the occurrence and continuance of any Event of Default hereunder, the
Trustee, as assignee of the Issuer pursuant to the Indenture, and in addition to the rights retained
by the Issuer as provided in Section 4.1(c) hereof, on behalf of any unpaid Bondholders shall
have the rights and remedies hereinafter set forth, in addition to any other remedies herein or by
law provided. The Trustee, personally or by attorney, may in its discretion, proceed to protect
and enforce its rights by a suit or suits in equity or at law, whether for damages or for the specific
performance of any covenant or agreement contained in this Financing Agreement or in aid of
the execution of any power herein granted, or for the enforcement of any other appropriate legal
or equitable remedy, as the Trustee shall deem most effectual to protect and enforce any of its
rights or duties hereunder. If after any Event of Default occurs and prior to the Trustee
exercising any of the remedies provided in this Financing Agreement, the Company will have
completely cured such Event of Default, and shall have provided the Trustee with evidence
thereof to the reasonable satisfaction of the Trustee, then in every case such Event of Default will
be waived, rescinded and annulled by the Trustee by written notice given to the Company. No
such waiver, annulment or rescission will affect any subsequent default or impair any right or
remedy consequent thereon.
(c) Notwithstanding anything herein to the contrary, during the occurrence and
continuance of an Event of Default by the Company arising from a breach of representations as
set forth in Section 2.2 hereof, or a breach of the covenants of the Company set forth in Section
3.7 or 3.8 hereof, the Issuer may in its discretion, proceed to protect and enforce its rights under
this Agreement by a suit or suits in equity or at law, whether for damages or for the specific
performance, including the recovery of reasonable attorney’s fees.
Section 4.2. Remedies Cumulative. No remedy herein conferred upon or reserved to the
Trustee or Issuer is intended to be exclusive of any other remedy or remedies, and each and
every such remedy shall be cumulative, and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 4.3. Delay or Omission Not a Waiver. No delay or omission of the Trustee or
Issuer to exercise any right or power accruing upon any Event of Default shall impair any such
right or power, or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and every power and remedy given by this Financing Agreement to the
Trustee and Issuer may be exercised from time to time and as often as may be deemed expedient
by the Trustee or Issuer, as the case may be.
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(End of Article IV)
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ARTICLE V
IMMUNITY
Section 5.1. Extent of Covenants of the Issuer; No Personal Liability. No recourse shall
be had for the payment of the principal of or interest on any of the Bonds or for any claim based
thereon or upon any obligation, covenant or agreement contained in the Bonds, the Indenture or
this Financing Agreement against any past, present or future member, director, officer, agent,
attorney or employee of the Issuer, or any incorporator, member, director, officer, employee,
agent, attorney or trustee of any successor thereto, as such, either directly or through the Issuer or
any successor thereto, under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise, and all such liability of any such
incorporator, member, director, officer, employee, agent, attorney or trustee as such is hereby
expressly waived and released as a condition of and consideration for the execution of the
Indenture and this Financing Agreement (and any other agreement entered into by the Issuer with
respect thereto) and the issuance of the Bonds.
Section 5.2. Liability of Issuer. Any and all obligations of the Issuer under this Financing
Agreement are special, limited obligations of the Issuer, payable solely out of the TIF Revenues
and as otherwise provided under the Indenture. The obligations of the Issuer hereunder shall not
be deemed to constitute an indebtedness or an obligation of the Issuer, the State or any political
subdivision or taxing authority thereof within the purview of any constitution limitation or
provision, or a pledge of the faith and credit or a charge against the credit or general taxing
powers, if any, of the Issuer, the State or any political subdivision or taxing authority thereof.
(End of Article V)
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ARTICLE VI
SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING AGREEMENT
Section 6.1. Supplements and Amendments to this Financing Agreement. Subject to the
provisions of Article X of the Indenture, the Company and the Issuer may from time to time
enter into such supplements and amendments to this Financing Agreement as to them may seem
necessary or desirable to effectuate the purposes or intent hereof.
(End of Article VI)
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Financing Agreement for Benefit of Parties Hereto. Nothing in this
Financing Agreement, express or implied, is intended or shall be construed to confer upon, or to
give to, any person other than the parties hereto, their successors and assigns, any right, remedy
or claim under or by reason of this Financing Agreement or any covenant, condition or
stipulation hereof; and the covenants, stipulations and agreements in this Financing Agreement
contained are and shall be for the sole and exclusive benefit of the parties hereto, their successors
and assigns, and the Trustee.
Section 7.2. Severability. In case any one or more of the provisions contained in this
Financing Agreement shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and therein shall not in
any way be affected or impaired thereby.
Section 7.3. Addresses for Notice and Demands. All notices, demands, certificates or
other communications hereunder shall be sufficiently given when received or your first refusal
thereof and mailed by registered or certified mail, postage prepaid, or sent by nationally
recognized overnight courier with proper address as indicated below. The Issuer, the Company
and the Trustee may, by written notice given by each to the others, designate any address or
addresses to which notices, demands, certificates or other communications to them shall be sent
when required as contemplated by this Financing Agreement. Until otherwise provided by the
respective parties, all notices, demands, certificates and communications to each of them shall be
addressed as follows:
To the Issuer: City of Carmel, Indiana
Attention: Mayor
One Civic Square
Carmel, Indiana 46032
To the Company: [Novo Development Group, LLC]
Attention: ____________
_____________________
_____________________
To the Trustee: [Trustee]
______________________
______________________
______________________
Section 7.4. Successors and Assigns. Whenever in this Financing Agreement any of the
parties hereto is named or referred to, the successors and assigns of such party shall be deemed to
be included and all the covenants, promises and agreements in this Financing Agreement
contained by or on behalf of the Company, or by or on behalf of the Issuer, shall bind and inure
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to the benefit of the respective successors and assigns, whether so expressed or not. Provided,
however, the Company may not assign its rights or obligations under this Financing Agreement
to any party other than an affiliate of the Company without the consent of the Issuer.
Section 7.5. Counterparts. This Financing Agreement is being executed in any number of
counterparts, each of which is an original and all of which are identical. Each counterpart of this
Financing Agreement is to be deemed an original hereof and all counterparts collectively are to
be deemed but one instrument.
Section 7.6. Governing Law. It is the intention of the parties hereto that this Financing
Agreement and the rights and obligations of the parties hereunder shall be governed by and
construed and enforced in accordance with, the laws of Indiana.
(End of Article IX)
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DMS 43580962.1
IN WITNESS WHEREOF, the Issuer and the Company have caused this Financing
Agreement to be executed in their respective names as of the date first above written.
[NOVO DEVELOPMENT GROUP, LLC, a
______________]
By: _______________________________
Printed:
Title:
“THE ISSUER”
CITY OF CARMEL, INDIANA
Mayor
Attest:
Clerk
[SIGNATURE PAGE OF THE FINANCING AGREEMENT
BETWEEN [NOVO DEVELOPMENT GROUP, LLC] AND THE CITY OF CARMEL,
INDIANA]
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TRUST INDENTURE
BETWEEN
CITY OF CARMEL, INDIANA
AND
[TRUSTEE],
Indianapolis, Indiana
As Trustee
$[XX,XXX,XXX]
CITY OF CARMEL, INDIANA
ECONOMIC DEVELOPMENT TAX INCREMENT REVENUE BONDS, SERIES 20____
(PROSCENIUM III PROJECT)
Dated as of _____________ 1, 20___
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ........................................................................................................ 10
Section 1.1. Terms Defined .............................................................................................. 10
Section 1.2. Rules of Interpretation .................................................................................. 13
Section 1.3. Exhibits ......................................................................................................... 14
ARTICLE II. THE BONDS .......................................................................................................... 15
Section 2.1. Authorized Amount of Series 20__ Bonds ................................................... 15
Section 2.2. Issuance of Series 20__ Bonds ..................................................................... 15
Section 2.3. Payment on Bonds ........................................................................................ 16
Section 2.4. Execution; Limited Obligation ..................................................................... 17
Section 2.5. Authentication ............................................................................................... 17
Section 2.6. Form of Bonds .............................................................................................. 17
Section 2.7. Delivery of Series 20__ Bonds ..................................................................... 18
Section 2.8. Issuance of Additional Bonds ....................................................................... 18
Section 2.9. Mutilated, Lost, Stolen, or Destroyed Bonds ................................................ 19
Section 2.10. Registration and Exchange of Bonds; Persons Treated as Owners .............. 20
ARTICLE III. APPLICATION OF SERIES 20__ BONDS PROCEEDS ................................... 21
Section 3.1. Deposit of Funds ........................................................................................... 21
ARTICLE IV. REVENUE AND FUNDS .................................................................................... 22
Section 4.1. Source of Payment of Bonds......................................................................... 22
Section 4.2. Bond Fund ..................................................................................................... 22
Section 4.3. Surplus Fund ................................................................................................. 23
Section 4.4. Construction Fund ......................................................................................... 23
Section 4.5. TIF Revenues ................................................................................................ 24
Section 4.6. Trust Funds ................................................................................................... 25
Section 4.7. Investment ..................................................................................................... 25
ARTICLE V. REDEMPTION OF SERIES 20__ BONDS BEFORE MATURITY ................... 26
Section 5.1. Redemption Dates and Prices ....................................................................... 26
Section 5.2. Notice of Redemption ................................................................................... 26
Section 5.3. Cancellation .................................................................................................. 26
Section 5.4. Redemption Payments .................................................................................. 26
Section 5.5. Partial Redemption of Bonds ........................................................................ 26
ARTICLE VI. GENERAL COVENANTS................................................................................... 28
Section 6.1. Payment of Principal and Interest ................................................................. 28
Section 6.2. Performance of Covenants ............................................................................ 28
Section 6.3. Ownership; Instruments of Further Assurance ............................................. 29
Section 6.4. Filing of Indenture, Financing Agreement and Security Instruments ........... 29
Section 6.5. Inspection of Books ...................................................................................... 29
Section 6.6. List of Bondholders....................................................................................... 29
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Section 6.7. Rights Under Financing Agreement ............................................................. 29
Section 6.8. Investment of Funds ...................................................................................... 29
Section 6.9. Non-presentment of Bonds ........................................................................... 29
ARTICLE VII. DEFAULTS AND REMEDIES .......................................................................... 31
Section 7.1. Events of Default .......................................................................................... 31
Section 7.2. Acceleration; Termination of TIF Revenue Pledge ...................................... 31
Section 7.3. Remedies; Rights of Bondholders ................................................................ 31
Section 7.4. Right of Bondholders to Direct Proceedings ................................................ 32
Section 7.5. Application of Moneys ................................................................................. 32
Section 7.6. Remedies Vested In Trustee ......................................................................... 34
Section 7.7. Rights and Remedies of Bondholders ........................................................... 34
Section 7.8. Termination of Proceedings .......................................................................... 34
Section 7.9. Waivers of Events of Default ........................................................................ 34
ARTICLE VIII. THE TRUSTEE AND PAYING AGENT ......................................................... 36
Section 8.1. Acceptance of the Trusts ............................................................................... 36
Section 8.2. Fees, Charges and Expenses of Trustee and Paying Agent .......................... 39
Section 8.3. Notice to Bondholders if Default Occurs...................................................... 39
Section 8.4. Intervention by Trustee ................................................................................. 39
Section 8.5. Successor Trustee.......................................................................................... 39
Section 8.6. Resignation by the Trustee............................................................................ 40
Section 8.7. Removal of the Trustee ................................................................................. 40
Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary
Trustee .......................................................................................................... 40
Section 8.9. Concerning Any Successor Trustees ............................................................ 40
Section 8.10. Trustee Protected in Relying Upon Resolutions, etc .................................... 41
Section 8.11. Appointment of Paying Agent and Registrar; Resignation or Removal
of Paying Agent ........................................................................................... 41
ARTICLE IX. SUPPLEMENTAL INDENTURES ..................................................................... 42
Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders ............... 42
Section 9.2. Supplemental Indentures Requiring Consent of Bondholders ...................... 42
Section 9.3. Opinion ......................................................................................................... 43
ARTICLE X. AMENDMENTS TO THE FINANCING AGREEMENT .................................... 44
Section 10.1. Amendments, etc........................................................................................... 44
Section 10.2. Amendments, etc........................................................................................... 44
Section 10.3. Opinion ......................................................................................................... 44
ARTICLE XI. MISCELLANEOUS ............................................................................................. 45
Section 11.1. Satisfaction and Discharge ............................................................................ 45
Section 11.2. Defeasance of Bonds..................................................................................... 45
Section 11.3. Cancellation of Series 20__ Bonds ............................................................... 46
Section 11.4. Application of Trust Money .......................................................................... 46
Section 11.5. Consents, etc., of Bondholders ..................................................................... 47
Section 11.6. Limitation of Rights ...................................................................................... 47
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Section 11.7. Severability ................................................................................................... 47
Section 11.8. Notices .......................................................................................................... 48
Section 11.9. Counterparts .................................................................................................. 48
Section 11.10. Applicable Law ............................................................................................. 48
Section 11.11. Immunity of Officers and Directors .............................................................. 48
Section 11.12. Holidays ........................................................................................................ 48
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TRUST INDENTURE
THIS TRUST INDENTURE dated as of the ____ day of _____________, 20___, by and
between the CITY OF CARMEL, INDIANA (“Issuer”), a municipal corporation duly organized
and existing under the laws of the State of Indiana and [TRUSTEE], a [national banking
association duly organized, existing and authorized to accept and execute trusts of the character
herein set out under the laws of the United States of America with its Indiana corporate trust
office in the City of Indianapolis, Indiana], as Trustee (“Trustee”);
WITNESSETH:
WHEREAS, Indiana Code, Title 36, Article 7, Chapters 11.9, 12, 14 and 25 (collectively,
“Act”), authorize and empower the Issuer to issue revenue bonds and to provide the proceeds
therefrom for the purpose of financing economic development facilities and vests such Issuer
with powers that may be necessary to enable it to accomplish such purposes; and
WHEREAS, in accordance with the provisions of the Act, the Issuer has induced
[Company or an affiliate thereof] (the “Company”), to proceed with the construction of the
projects described in Exhibit A attached hereto (the “Projects”) in the jurisdiction of the Issuer
by offering to issue its Economic Development Tax Increment Revenue Bonds, Series 20_____
(Proscenium III Project) in the aggregate principal amount of $[XX,XXX,XXX] (“Series 20__
Bonds”) pursuant to this Trust Indenture and to provide the proceeds thereof to the Company
pursuant to the Financing Agreement, dated as of _____________ 1, 20___ (“Financing
Agreement”) for the purpose of paying certain costs of the Projects[, including capitalized
interest on the Series 20__ Bonds]; and
WHEREAS, the execution and delivery of this Indenture and the issuance of revenue
bonds under the Act as herein provided have been in all respects duly and validly authorized by
proceedings duly passed on and approved by the Issuer; and
WHEREAS, after giving notice in accordance with the Act and IC 5-3-1-4, the Issuer
held a public hearing, and upon finding that the Projects and the proposed financing thereof will
create additional employment opportunities in the City of Carmel; will benefit the health, safety,
morals, and general welfare of the citizens of the Issuer and the State of Indiana; and will comply
with the purposes and provisions of the Act, adopted an ordinance approving the proposed
financing; and
WHEREAS, the Act provides that such bonds may be secured by a trust indenture
between the Issuer and a corporate trustee; and
WHEREAS, the execution and delivery of this Trust Indenture (“Indenture”), and the
issuance of the Series 20__ Bonds hereunder have been in all respects duly and validly
authorized by an ordinance duly passed and approved by the Issuer (the “Ordinance”); and
WHEREAS, Indiana Code, Title 36, Article 7, Chapter 14 provides that a redevelopment
commission of the Issuer may pledge certain incremental property taxes to pay, in whole or in
part, amounts due on the Series 20__ Bonds; and
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WHEREAS, the Carmel Redevelopment Commission has, by resolution, irrevocably
dedicated and pledged to the Issuer the TIF Revenues (as hereinafter defined) to pay the Series
20__ Bonds; and
WHEREAS, the Series 20__ Bonds and the Trustee’s certificate of authentication to be
endorsed thereon are all to be in substantially the following forms, and any Additional Bonds and
Trustee’s certificate of authentication are also to be in substantially the following forms (except
as to redemption, sinking fund and other provisions peculiar to such Additional Bonds), with
necessary and appropriate variations, omissions and insertions as permitted or required by this
Indenture, to-wit:
(Form of Series 20__ Bond)
R - __
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF HAMILTON
CITY OF CARMEL, INDIANA
ECONOMIC DEVELOPMENT TAX INCREMENT REVENUE BOND, SERIES 20__
(PROSCENIUM III PROJECT)
MATURITY
DATES
INTEREST
RATE
ORIGINAL
DATE
AUTHENTICATION
DATE
As set forth in Exhibit A _____% ___________, 20___ _________, 20___
REGISTERED OWNER: _____________________________
PRINCIPAL AMOUNT: ___________________________ DOLLARS ($[XX,XXX,XXX])
The City of Carmel, Indiana (“Issuer”), a municipal corporation duly organized and
existing under the laws of the State of Indiana, for value received, hereby promises to pay in
lawful money of the United States of America to the Registered Owner listed above, but solely
from available amounts held in the Trust Estate (including TIF Revenues) hereinafter referred to
pledged and assigned for the payment hereof, the Principal Amount set forth above or such lesser
amount as has been advanced and remains unpaid on the Maturity Dates specified on Exhibit A,
unless this Series 20__ Bond shall have previously been called for redemption and payment of
the redemption price made or provided for or unless payments shall be accelerated as provided in
the Indenture, and to pay interest thereon until the Principal Amount shall be fully paid at the
Interest Rate stated above on the unpaid principal amount hereof in like money, but solely from
those payments, payable on ________ 1, 20____, and on each February 1 and August 1
thereafter (“Interest Payment Dates”) until the unpaid Principal Amount advanced is paid in full.
The unpaid principal amount of this Series 20__ Bond shall be the total amounts
advanced by the Registered Owner from time to time, less any prior redemption of the principal
amount due, as set forth on Exhibit B hereto. The aggregate amount of advances made under
this Series 20__ Bond may not exceed $[XX,XXX,XXX], and the final advance may not occur
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after February 1, 20__. The principal amounts advanced shall be evidenced by the execution by
the Controller of the City of a Disbursement Request in form and substance satisfactory to the
Registered Owner.
Interest on this bond shall be payable from the interest payment date to which interest has
been paid next preceding the Authentication Date of this bond unless this bond is authenticated
after the fifteenth day of the month immediately preceding the interest payment date (the
“Record Date”) and on or before such interest payment date in which case it shall bear interest
from such interest payment date, or unless this bond is authenticated on or before _________ 15,
20____, in which case it shall bear interest from the Original Date, which interest is payable
semi-annually on February 1 and August 1 of each year, beginning on _______ 1, 20___.
Interest shall be calculated on the basis of a 360-day year comprised of twelve 30-day months.
The principal and premium, if any, of this Series 20__ Bond are payable at the corporate
trust operations office of [Trustee], as Trustee, in the Indianapolis, Indiana, or at the principal
office of any successor trustee or paying agent, or, if payment is made to a depository, by wire
transfer of immediately available funds on the payment date. All payments of interest hereon
will be made by the Trustee by check mailed on each Interest Payment Date to the Registered
Owner hereof at the address shown on the registration books of the Trustee as maintained by the
Trustee, as registrar, determined on the Record Date next preceding such Interest Payment Date,
or, if payment is made to a depository, by wire transfer of immediately available funds on the
Interest Payment Date. If the payment date occurs on a date when financial institutions are not
open for business, the wire transfer shall be made on the next succeeding business day. The
Trustee shall wire transfer payments so such payments are received at the depository by 2:30
p.m. (New York City time). [This Series 20___ Bond only needs to be presented for payment of
principal and premium upon redemption in full or final maturity.]
This Series 20__ Bond is the only one of the Issuer’s Economic Development Tax
Increment Revenue Bonds, Series 20_____ (Proscenium III Project) (hereinbefore and
hereinafter the “Series 20__ Bonds”) which are being issued under the hereinafter described
Indenture in the aggregate principal amount of $[XX,XXX,XXX]. The Series 20__ Bonds are
being issued for the purpose of providing funds to finance the construction of certain
infrastructure and related improvements (“Projects”) located in or directly serving and benefiting
the Integrated 126th Street Corridor Economic Development Area in the City of Carmel, Indiana,
to be constructed by [Novo Development Group, LLC] (“Company”), by providing such funds to
the Company pursuant to the Financing Agreement dated as of _______________ 1, 20___
(“Financing Agreement”) between the Company and the Issuer. Except as otherwise provided in
Section 2.2 of the Indenture, each Series 20__ Bond will be payable on parity with all other
Series 20__ Bonds.
The Series 20__ Bonds are issued under and entitled to the security of a Trust Indenture
dated as of _______________ 1, 201___ (“Indenture”) duly executed and delivered by the Issuer
to [Trustee], as Trustee (the term “Trustee” where used herein referring to the Trustee or its
successors), pursuant to which Indenture, the Trust Estate including the TIF Revenues (each as
defined in the Indenture ) and all rights of the Issuer under the Financing Agreement, except
certain rights to payment for expenses, indemnity rights and rights to perform certain
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discretionary acts as set forth in the Financing Agreement, are pledged and assigned by the Issuer
to the Trustee as security for the Series 20__ Bonds.
THE OWNER OF THIS BOND, BY ACCEPTANCE OF THIS SERIES 20__ BOND,
HEREBY AGREES TO ALL OF THE TERMS AND PROVISIONS IN THE INDENTURE
AND THIS SERIES 20__ BOND AND ACKNOWLEDGES THAT:
1. It is an “accredited investor” (as defined in Rule 501(a)(8) under the Securities
Act of 1933, as amended (“1933 Act”)), purchasing bonds for its own account, and it is acquiring
the Series 20__ Bonds for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the 1933 Act. It has such knowledge and
experience in financial and business matters as to be capable of evaluating the merits and risk of
its investment in the Series 20__ Bonds, and it, and any investor accounts for which it is acting
are able to bear the economic risk of their or its investment for an indefinite period of time. It
confirms that neither the Issuer nor any person acting on its behalf has offered to sell the Series
20__ Bonds by, and that it has not been made aware of the offering of the Series 20__ Bonds by,
any form of general solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any newspaper, magazine or
similar media or a broadcast over television or radio.
2. It is familiar with the Issuer and the Company; it has received such information
concerning the Issuer and the Company, the Series 20__ Bonds and the Trust Estate including
the TIF Revenues (as defined in the Indenture), as it deems to be necessary in connection with
investment in the Series 20__ Bonds. It has received, read and commented upon copies of the
Indenture and the Financing Agreement. Prior to the purchase of the Series 20__ Bonds, it has
been provided with the opportunity to ask questions of and receive answers from the
representatives of the Issuer and the Company concerning the terms and conditions of the Series
20__ Bonds, the tax status of the Series 20__ Bonds, legal opinions and enforceability of
remedies, the security therefor, and property tax reform, and to obtain any additional information
needed in order to verify the accuracy of the information obtained to the extent that the Issuer
and the Company possess such information or can acquire it without unreasonable effort or
expense. It is not relying on Barnes & Thornburg LLP or Baker Tilly Municipal Advisors, LLC
for information concerning the financial status of the Issuer and the Company or the ability of the
Issuer and the Company to honor their respective financial obligations or other covenants under
the Series 20__ Bonds, the Indenture or the Financing Agreement. It understands that the
projection of TIF Revenues prepared in connection with the issuance of the Series 20__ Bonds
has been based on estimates of the investment in real property provided by the Company.
3. It is acquiring the Series 20__ Bonds for its own account with no present intent to
resell; and will not sell, convey, pledge or otherwise transfer the Series 20__ Bonds to an entity
that is not an accredited investor without prior compliance with applicable registration and
disclosure requirements of state and federal securities laws.
4. It understands that the Series 20__ Bonds have not been registered under the 1933
Act and, unless so registered, may not be sold to an entity that is not an accredited investor
without registration under the 1933 Act or an exemption therefrom. It is aware that it may
transfer or sell the Series 20__ Bonds to an entity that is not an accredited investor only if the
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Trustee shall first have received (i) a satisfactory opinion of counsel that the sale or transfer will
not violate the 1933 Act, the Securities Exchange Act of 1934 and the Investment Company Act
of 1940 and regulations issued pursuant to such Acts, or (ii) a no-action letter of the staff of the
Securities and Exchange Commission that the staff will recommend that no action be taken with
respect to such sale or transfer, or (iii) a certificate stating that it reasonably believes that the
transferee is a “Qualified Institutional Buyer” within the meaning of Section (a) of Rule 144A
(“Rule 144A”) promulgated by the Securities and Exchange Commission pursuant to the 1933
Act and has informed the transferee of the transfer restrictions applicable to the Series 20__
Bonds and that the transferor may be relying upon Rule 144A with respect to the transfer of the
Series 20__ Bonds.
5. It understands that the sale or transfer of the Series 20__ Bonds in principal
amounts less than $100,000 to an entity that is not an accredited investor is prohibited other than
through a primary offering.
6. It has investigated the security for the Series 20__ Bonds, including the
availability of the Trust Estate including the TIF Revenues to its satisfaction, and it understands
that the Series 20__ Bonds are payable from the available Trust Estate including the TIF
Revenues. It further understands that the Issuer does not have the power or the authority to levy
a tax to pay the principal of or interest on the Series 20__ Bonds.
It is provided in the Indenture that the Issuer may hereafter issue Additional Bonds (as
defined in the Indenture) from time to time under certain terms and conditions contained therein
(such Additional Bonds and the Series 20__ Bonds are hereinafter collectively referred to as the
“Bonds”). Reference is made to the Indenture and to all indentures supplemental thereto and to
the Financing Agreement for a description of the nature and extent of the security, the rights,
duties and obligations of the Issuer and the Trustee, the rights of the holders of the Bonds, the
issuance of Additional Bonds and the terms on which the Bonds are or may be issued and
secured, and to all the provisions of which the holder hereof by the acceptance of this Series
20__ Bond assents.
The Series 20__ Bonds are issuable in registered form without coupons in the
denominations of $100,000 and any $1.00 integral multiples thereafter. The sale or transfer of
this Series 20__ Bond in principal amounts of less than $100,000 is prohibited to an entity that is
not an accredited investor other than through a primary offering. This Series 20__ Bond is
transferable by the registered holder hereof in person or by its attorney duly authorized in writing
at the corporate trust operations office of the Trustee, but only in the manner, subject to the
limitations and upon payment of the charges provided in the Indenture and upon surrender and
cancellation of this Series 20__ Bond. Upon such transfer a new registered Bond will be issued
to the transferee in exchange therefor.
The Issuer, the Trustee and the Paying Agent may deem and treat the Registered Owner
hereof as the absolute owner hereof for the purpose of receiving payment of or on account of
principal hereof and premium, if any, hereon and interest due hereon and for all other purposes
and neither the Issuer nor the Trustee nor the Paying Agent shall be affected by any notice to the
contrary.
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If sufficient funds are on deposit in the Bond Fund, the Series 20__ Bonds shall be
subject to redemption prior to maturity at the option of the Issuer on any date, upon thirty (30)
days’ notice, in whole or in part in such order of maturity as the Issuer shall direct and by lot
within maturities on any date, from any moneys made available for that purpose, at face value
and without premium, plus in each case accrued interest to the date fixed for redemption.
If any of the Series 20__ Bonds are called for redemption as aforesaid, notice thereof
identifying the Series 20__ Bonds to be redeemed will be given by mailing a copy of the
redemption notice by first class mail not less than thirty (30) days nor more than sixty (60) days
prior to the date fixed for redemption to the Registered Owner of the Series 20__ Bonds to be
redeemed at the address shown on the registration books; provided, however, that failure to give
such notice by mailing, or any defect therein with respect to any registered Series 20__ Bond,
shall not affect the validity of any proceedings for the redemption of other Series 20__ Bonds.
All Series 20__ Bonds so called for redemption will cease to bear interest on the
specified redemption date, provided funds for their redemption are on deposit at the place of
payment at that time, and shall no longer be protected by the Indenture and shall not be deemed
to be outstanding under the provisions of the Indenture.
This Series 20__ Bond is transferable by the Registered Owner hereof at the principal
corporate trust office of the Trustee upon surrender and cancellation of this Series 20__ Bond
and on presentation of a duly executed written instrument of transfer and thereupon a new Series
20__ Bond or Series 20__ Bonds of the same aggregate principal amount and maturity and in
authorized denominations will be issued to the transferee or transferees in exchange therefor.
The Series 20__ Bonds, and the interest payable thereon, do not and shall not
represent or constitute a debt of the Issuer within the meaning of the provisions of the
constitution or statutes of the State of Indiana or a pledge of the faith and credit of the
Issuer. The Series 20__ Bonds, as to both principal and interest, are not an obligation or
liability of the State of Indiana, or of any political subdivision or taxing authority thereof,
but are a special limited obligation of the Issuer and payable solely and only from the trust
estate consisting of funds and accounts held under the Indenture and the TIF Revenues
pledged and assigned for their payment in accordance with the Indenture (“Trust Estate”).
Neither the faith and credit nor the taxing power of the Issuer, the State of Indiana or any
political subdivision or taxing authority thereof is pledged to the payment of the principal
of, premium, if any, or the interest on this Series 20__ Bond. The Series 20__ Bonds do not
grant the owners or holders thereof any right to have the Issuer, the State of Indiana or its
General Assembly, or any political subdivision or taxing authority of the State of Indiana,
levy any taxes or appropriate any funds for the payment of the principal of, premium, if
any, or interest on the Series 20__ Bonds. No covenant or agreement contained in the
Series 20__ Bonds or the Indenture shall be deemed to be a covenant or agreement of the
Redevelopment Commission, the Carmel Economic Development Commission
(“Commission”), the Issuer or of any member, director, officer, agent, attorney or
employee of the Redevelopment Commission, the Commission or the Issuer in his or her
individual capacity, and neither the Redevelopment Commission, Commission, the Issuer
nor any member, director, officer, agent, attorney or employee of the Redevelopment
Commission, the Commission or the Issuer executing the Series 20__ Bonds shall be liable
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personally on the Series 20__ Bonds or be subject to any personal liability or accountability
by reason of the issuance of the Series 20__ Bonds.
The holder of this Series 20__ Bond shall have no right to enforce the provisions of the
Indenture or to institute action to enforce the covenants therein, or to take any action with respect
to any event of default under the Indenture, or to institute, appear in or defend any suit or other
proceedings with respect thereto, except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the Indenture, the principal of all the
Bonds issued under the Indenture and then outstanding may become or may be declared due and
payable before the stated maturity thereof, together with interest accrued thereon. Modifications
or alterations of the Indenture, or of any supplements thereto, may be made to the extent and in
the circumstances permitted by the Indenture. The Issuer’s obligation to pay TIF Revenues shall
not be subject to acceleration.
It is hereby certified that all conditions, acts and things required to exist, happen and be
performed under the laws of the State of Indiana and under the Indenture precedent to and in the
issuance of this Series 20__ Bond, exist, have happened and have been performed, and that the
issuance, authentication and delivery of this Series 20__ Bond have been duly authorized by the
Issuer.
This Series 20__ Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of authentication
hereon shall have been duly executed by the Trustee.
IN WITNESS WHEREOF, the City of Carmel, Indiana, in Hamilton County, has caused
this Series 20__ Bond to be executed in its name and on its behalf by the manual or facsimile
signature of its Mayor and its corporate seal to be hereunto affixed manually or by facsimile and
attested to by the manual or facsimile signature of its Clerk all as of the Original Date.
CITY OF CARMEL, INDIANA
By:
Mayor
(SEAL)
Attest:
Clerk
(FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION)
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This Series 20__ Bond is one of the Series 20__ Bonds described in the within mentioned
Trust Indenture.
[TRUSTEE], Trustee
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
____________________________ (Please Print or Typewrite Name and Address) the within
Series 20__ Bond and all rights, title and interest thereon, and hereby irrevocably constitutes and
appoints ____________________________ attorney to transfer the within Series 20__ Bond on
the books kept for registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by an eligible guarantor institution
participating in a Securities Transfer
Association recognized signature guarantee
program.
NOTICE: The signature of this assignment
must correspond with the name of the
registered owner as it appears upon the face
of the within Series 20__ Bond in every
particular, without alteration or enlargement
or any change whatever.
The following abbreviations, when used in the inscription on the face of this certificate,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN. COM. as tenants in common
TEN. ENT. as tenants by the entireties
JT. TEN. as joint tenants with right of survivorship and not as tenants in
common
UNIF. TRANS.
MIN. ACT
Custodian
(Cust.) (Minor)
under Uniform Transfers to Minors Act of
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(State)
Additional abbreviations may also be used though not in the above list.
Exhibit A
Maturity Date Amount
Exhibit B
SCHEDULE OF OUTSTANDING BALANCE OF
CITY OF CARMEL, INDIANA ECONOMIC DEVELOPMENT
TAX INCREMENT REVENUE BOND, SERIES 20__
(PROSCENIUM III PROJECT)
Date Amount
Advance
Amount of
Payment
Outstanding
Balance
Acknowledgment
of City
Acknowledgment of
Trustee
(End of Bond Form)
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to secure the
payment of the principal of and interest and premium, if any, on the Bonds to be issued under
this Indenture according to their tenor, purport and effect, and in order to secure the performance
and observance of all the covenants and conditions herein and in the Bonds contained, and in
order to declare the terms and conditions upon which the Bonds are issued, authenticated,
delivered, secured and accepted by all persons who shall from time to time be or become holders
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thereof, and for and in consideration of the mutual covenants herein contained, of the acceptance
by the Trustee of the trust hereby created, and of the purchase and acceptance of the Bonds by
the holders or obligees thereof, the Issuer has executed and delivered this Indenture, and by these
presents does hereby convey, grant, assign, pledge and grant a security interest in, unto the
Trustee, its successor or successors and its or their assigns forever, with power of sale, all and
singular, the property hereinafter described (“Trust Estate”):
GRANTING CLAUSE
All right, title and interest of the Issuer in and to the TIF Revenues, subject to Section
7.2(b) hereof (such pledge to be effective as set forth in IC 5-1-14-4 and IC 36-7-14-39 without
filing or recording of this Indenture or any other instrument), the Financing Agreement (except
the rights reserved to the Issuer) and all moneys and the Qualified Investments held by the
Trustee from time to time in the Funds and Accounts created hereunder;
TO HAVE AND TO HOLD the same unto the Trustee, and its successor or successors
and its or their assigns forever;
IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth, to secure the
payment of the Bonds to be issued hereunder, and premium, if any, payable upon redemption or
prepayment thereof, and the interest payable thereon, and to secure also the observance and
performance of all the terms, provisions, covenants and conditions of this Indenture, and for the
benefit and security of all and singular the holders of all Bonds issued hereunder, and it is hereby
mutually covenanted and agreed that the terms and conditions upon which the Bonds are to be
issued, authenticated, delivered, secured and accepted by all persons who shall from time to time
be or become the holders thereof, and the trusts and conditions upon which the pledged moneys
and revenues are to be held and disbursed, are as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Terms Defined. In addition to the words and terms elsewhere defined in
this Indenture, the following words and terms as used in this Indenture shall have the following
meanings unless the context or use indicates another or different meaning or intent:
“Additional Bonds” shall have the meaning assigned in Section 2.8 of this Indenture.
“Annual Fees” means annual Trustee Fees and any other ongoing fees relating to
payment of debt service on the Series 20__ Bonds.
“Area” means the Proscenium III Allocation Area as such allocation area may be
expanded from time to time.
“Authorized Representative” means any officer of the Company as evidenced by written
certificate furnished to the Trustee containing the specimen signature of such person and signed
on behalf of the Company by its President.
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“Bonds” means any Bonds issued pursuant to this Indenture, including the Series 20__
Bonds and any Additional Bonds.
“Business Day” means a day on which the office of the Trustee is open for business.
“Company” means [Novo Development Group, LLC], or its permitted successor or
assign, as more fully provided in the Financing Agreement.
“Controller” means the Controller of the City.
“Costs of Construction” means the following categorical costs of providing for an
“economic development project” as defined and set forth in the Act:
(i) the “Bond Issuance Costs”, namely the costs, fees and expenses incurred
or to be incurred by the Issuer and the Company in connection with the issuance and sale
of the Series 20__ Bonds, including placement or other financing fees (including
applicable counsel fees), the fees and disbursements of bond counsel, fees of the Issuer’s
financial advisor, the acceptance fee and first year annual administration fee of the
Trustee, application fees and expenses, publication costs, the filing and recording fees in
connection with any filings or recording necessary under the Indenture or to perfect the
lien thereof, the out-of-pocket costs of the Issuer, the fees and disbursements of counsel
to the Company, the fees and disbursements of the Company’s accountants and advisers,
the fees and disbursements of counsel to the Issuer, the fees and disbursements of counsel
to the purchaser of the Bonds, the costs of preparing or printing the Series 20__ Bonds
and the documentation supporting the issuance of the Series 20__ Bonds, the costs of
reproducing documents, and any other costs of a similar nature reasonably incurred;
(ii) the “Capitalized Interest Costs”, namely a portion of the interest on the
Series 20__ Bonds from the date of their original delivery through and including
_________ 1, 20___;
(iii) the cost of insurance of all kinds that may be required or necessary in
connection with the construction of the Projects;
(iv) all costs and expenses which Issuer or Company shall be required to pay,
under the terms of any contract or contracts (including the architectural and engineering,
development, and legal services with respect thereto), for the construction of the Projects;
and
(v) any sums required to reimburse Issuer or Company for advances made by
either of them subsequent to the date of inducement by the Issuer for any of the above
items or for any other costs incurred and for work done by either of them which are
properly chargeable to the Projects.
“Event of Default” means those events of default specified in and defined by Section 7.1
hereof.
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“Financing Agreement” means the Financing Agreement, dated as of ____________ 1,
20___, between the Company and the Issuer and all amendments and supplements thereto.
“Fiscal Year” shall mean a period of twelve consecutive months constituting the fiscal
year of the Company commencing on the first day of January of any year and ending on the last
day of December of such year, both inclusive, or such other period as hereafter may be
established from time to time for budgeting and accounting purposes by the Company or by the
governing body of any successor entity to the Company.
“Indenture” means this instrument as originally executed or as it may from time to time
be amended or supplemented pursuant to Article IX.
“Interest Payment Date” on the Series 20__ Bonds means each February 1 and August 1,
commencing ____________ 1, 20___.
“Interest Period” has the meaning set forth in the form of Series 20__ Bond set forth in
the recitals to this Indenture.
“Issuer” means the City of Carmel, Indiana, a municipal corporation organized and
validly existing under the laws of the State of Indiana or any successor to its rights and
obligations under the Financing Agreement and the Indenture.
“Opinion of Counsel” shall mean an opinion in writing signed by legal counsel who may
be an employee of or counsel to the Company.
“Ordinance” means Ordinance D-2719-24 adopted by the Common Council of the Issuer
on _____________, 20__ authorizing the issuance of the Bonds in or more series in the
aggregate principal amount not to exceed $______________.
“Outstanding” or “Bonds outstanding” means all Bonds which have been duly
authenticated, and delivered by the Trustee under this Indenture, except:
(b) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(c) Bonds for the redemption of which cash or investments (but only to the extent that
the full faith and credit of the United States of America are pledged to the timely payment
thereof) shall have been theretofore deposited with the Trustee (whether upon or prior to the
maturity or redemption date of any such Bonds); 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; and
(d) Bonds in lieu of which others have been authenticated under Section 2.9.
“Paying Agent” means [Trustee], in its capacity as paying agent hereunder, and any
successor paying agent or co-paying agent.
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“Pledge Resolution” means Resolution No. __________ adopted by the Redevelopment
Commission on ______________, 20__, pledging the TIF Revenues to the Issuer.
“Qualified Investments” shall have the meaning assigned in the Financing Agreement.
“Record Date” means the fifteenth day of the month immediately preceding any Interest
Payment Date.
“Redevelopment Commission” means the City of Carmel Redevelopment Commission.
“Requisite Bondholders” means the holders of a majority in aggregate principal amount
of Bonds.
“Series 20__ Bonds” means the City of Carmel, Indiana Economic Development Tax
Increment Revenue Bonds, Series 20_____ (Proscenium III Project) in the aggregate principal
amount of $[XX,XXX,XXX].
“Tax Increment” means all real property tax proceeds attributable to the assessed
valuation within the Area as of each January 1 in excess of the base assessed value as established
as of [January 1, 20__]. The incremental assessed value is multiplied by the current property tax
rate (per $100 assessed value).
“TIF Revenues” means Tax Increment received by the Redevelopment Commission and
pledged to the Issuer pursuant to the Pledge Resolution, equal, for any given year, to ninety-five
percent (95%) of the Tax Increment generated from Area.
“Trust Estate” means the funds and accounts, TIF Revenues and other assets described in
the Granting Clauses of this Indenture.
“Trustee” means [Trustee], Indianapolis, Indiana, in its capacity as trustee hereunder, the
party of the second part hereto, and any successor trustee or co-trustee.
Section 1.2. Rules of Interpretation. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) “This Indenture” means this instrument as originally executed and as it may from
time to time be supplemented or amended pursuant to the applicable provisions hereof.
(b) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as
originally executed. The words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular and the singular as well as the plural.
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(d) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as consistently applied.
(e) Any terms not defined herein but defined in the Financing Agreement shall have
the same meaning herein.
(f) The terms defined elsewhere in this Indenture shall have the meanings therein
prescribed for them.
Section 1.3. Exhibits. The following Exhibits are attached to and by reference made a
part of this Indenture:
Exhibit A: Description of Projects
(End of Article I)
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ARTICLE II.
THE BONDS
Section 2.1. Authorized Amount of Series 20__ Bonds. No Bonds may be issued
under the provisions of this Indenture except in accordance with this Article. The principal
amount of the Series 20__ Bonds (other than Bonds issued in substitution therefor pursuant to
Section 2.8 hereof) that may be issued is hereby expressly limited to $[XX,XXX,XXX].
Additional Bonds may be issued as provided in Section 2.8 hereof.
Section 2.2. Issuance of Series 20__ Bonds. The Series 20__ Bonds shall be
designated “City of Carmel, Indiana Economic Development Tax Increment Revenue Bonds,
Series 20_____ (Proscenium III Project).” The Series 20__ Bonds shall be originally issuable as
fully registered Bonds without coupons in denominations of $100,000 and any $1.00 integral
multiples thereafter and shall be lettered and numbered R-1 and upward. Interest on the Series
20__ Bonds shall be paid to the owners of such Bonds determined as of the close of business of
the Record Date next preceding each Interest Payment Date at the registered addresses of such
owners as they shall appear on the registration books of the Trustee notwithstanding the
cancellation of any such Bonds upon any exchange or transfer thereof subsequent to the Record
Date and prior to such Interest Payment Date, except that, if and to the extent that there shall be a
default in the payment of the interest due on such interest payment date, such defaulted interest
shall be paid to the owners in whose name any such Bonds (or any Bond issued upon transfer or
exchange thereof) are registered at the close of business of the Special Record Date (defined
below) next preceding the date of payment of such defaulted interest. Payment of interest to all
Bondholders shall be by check drawn on the main office of the Paying Agent and mailed to such
Bondholder on each Interest Payment Date. The “Special Record Date” shall be the date
established by the Trustee for the payment of defaulted interest. The Series 20__ Bonds shall be
dated as of the date of their delivery. Interest shall be computed on the basis of a 360 day year
consisting of twelve 30-day months. The interest on the Series 20__ Bonds shall be payable on
each February 1 and August 1, commencing on _________ 1, 20____.
Principal on the Series 20__ Bond shall be advanced from time to time by the Registered
Owner upon request of the Issuer. The unpaid principal amount of the Series 20__ Bond shall be
the total amounts advanced by the Registered Owner from time to time, less any prior
redemption of the principal amount due, as set forth on Exhibit B to the Series 20__ Bond. The
aggregate amount of advances made under this Series 20__ Bond may not exceed
$[XX,XXX,XXX], and the final advance of principal shall occur no later than February 1, 20__.
The principal amounts advanced shall be evidenced by the execution by the Controller of the
City of a Disbursement Request in form and substance satisfactory to the Registered Owner and
provided to the Trustee.
The Series 20__ Bonds shall bear interest from the Interest Payment Date next preceding
the date of authentication thereof, unless such date of authentication shall be subsequent to a
Record Date in which case they shall bear interest from the Interest Payment Date with respect to
such Record Date, provided, however that if, as shown by the records of the Trustee, interest on
the Series 20__ Bonds shall be in default, Series 20__ Bonds issued in exchange for Series 20__
Bonds surrendered for transfer or exchange shall bear interest from the date to which interest has
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been paid in full on the Series 20__ Bonds or, if no interest has been paid on the Series 20__
Bonds, from the date of issuance and delivery of the Series 20__ Bonds. Series 20__ Bonds
authenticated on or prior to _____________ 15, 201___ shall bear interest from the date of
delivery of the Series 20__ Bonds.
The Series 20__ Bonds shall mature on the dates set forth below, beginning on _____ 1,
20___, and ending on ________ 1, 20___, in the amounts set forth below at the interest rate of
______% per annum:
Payment Date Amount Payment Date Amount
Section 2.3. Payment on Bonds. The principal of 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 final payments
on the Series 20__ Bonds shall be payable at the designated corporate trust operations office of
the Trustee. All other payments on the Series 20__ Bonds shall be made to the person appearing
on the Bond registration books of the Trustee as the registered owner of the Series 20__ Bonds
by check mailed to the registered owner thereof as shown on the registration books of the
Trustee, or, if payment is made to a depository, by wire transfer of immediately available funds
on the interest payment date. If the payment date occurs on a date when financial institutions are
not open for business, the wire transfer shall be made on the next succeeding business day. The
Trustee shall be instructed to wire transfer payments so that such payments are received at the
depository by 2:30 p.m. (New York City time).
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Section 2.4. Execution; Limited Obligation. The Bonds shall be executed on behalf of
the Issuer with the manual or facsimile signature of its Mayor and attested with the manual or the
facsimile signature of its Clerk and shall have impressed or printed thereon the corporate seal of
the Issuer. Such facsimiles shall have the same force and effect as if such officer had manually
signed each of the Bonds. If any officer whose signature or facsimile signature shall appear on
the Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such
facsimile shall, nevertheless, be valid and sufficient for all purposes, the same as if he had
remained in office until delivery.
The Bonds, and the interest payable thereon, do not and shall not represent or
constitute a debt of the Issuer, the State of Indiana or any political subdivision or taxing
authority thereof within the meaning of the provisions of the constitution or statutes of the
State of Indiana or a pledge of the faith and credit of the Issuer, the State of Indiana or any
political subdivision or taxing authority thereof. The Bonds, as to both principal and
interest, are not an obligation or liability of the State of Indiana, or of any political
subdivision or taxing authority thereof, but are a special limited obligation of the Issuer
and are payable solely and only from the trust estate consisting of funds and accounts held
under the Indenture and the TIF Revenues pledged and assigned for their payment in
accordance with the Indenture (“Trust Estate”). Neither the faith and credit nor the taxing
power of the Issuer, the State of Indiana or any political subdivision or taxing authority
thereof is pledged to the payment of the principal of, premium, if any, or the interest on the
Bond. The Bonds do not grant the owners or holders thereof any right to have the Issuer,
the State of Indiana or its General Assembly, or any political subdivision or taxing
authority of the State of Indiana, levy any taxes or appropriate any funds for the payment
of the principal of, premium, if any, or interest on the Bonds. No covenant or agreement
contained in the Bonds or the Indenture shall be deemed to be a covenant or agreement of
the Redevelopment Commission, the Carmel Economic Development Commission
(“Commission”), or of any member, director, officer, agent, attorney or employee of the
Redevelopment Commission, the Commission or the Issuer in his or her individual
capacity, and neither the Redevelopment Commission, the Commission nor any member,
director, officer, agent, attorney or employee of the Redevelopment Commission, the
Commission or the Issuer executing the Bonds shall be liable personally on the Bonds or be
subject to any personal liability or accountability by reason of the issuance of the Bonds.
Section 2.5. Authentication. No Bond shall be valid or obligatory for any purpose or
entitled to any security or benefit under this Indenture unless and until the certificate of
authentication on such Bond substantially in the form hereinabove set forth shall have been duly
executed by the Trustee, and such executed certificate of the Trustee upon any such Bond shall
be conclusive evidence that such Bond has been authenticated and delivered under this
Indenture. The Trustee’s certificate of authentication on any Bond shall be deemed to have been
executed by it if signed by an authorized signatory of the Trustee, but it shall not be necessary
that the same person sign the certificate of authentication on all of the Bonds issued hereunder.
Section 2.6. Form of Bonds. The Bonds issued under this Indenture shall be
substantially in the form hereinabove set forth with such appropriate variations, omissions and
insertions as are permitted or required by this Indenture.
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Section 2.7. Delivery of Series 20__ Bonds. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver to the Trustee the Series 20__ Bonds in the
aggregate principal amount of $[XX,XXX,XXX]. The Trustee shall authenticate such Series
20__ Bonds and deliver them to the purchasers thereof upon receipt of:
(i) A copy, duly certified by the Clerk of the Issuer, of the Ordinance adopted
and approved by the Issuer authorizing the execution and delivery of the
Financing Agreement and this Indenture and the issuance of the Series
20__ Bonds.
(ii) A copy, duly certified by the Secretary of the Redevelopment
Commission, of the Pledge Resolution adopted and approved by the
Redevelopment Commission pledging the TIF Revenues to the payment of
the Series 20__ Bonds.
(iii) Executed counterparts of the Financing Agreement and Indenture.
(iv) A written request of the Issuer to the Trustee requesting the Trustee to
authenticate, or cause to be authenticated, and deliver the Series 20__
Bonds in the principal amount of $[XX,XXX,XXX] to the purchasers
thereof.
(v) Such other documents as shall be required by the Requisite Bondholders.
The proceeds of the Series 20__ Bonds shall be paid over to the Trustee and deposited to
the credit of various Funds as hereinafter provided under Section 3.1 hereof.
Section 2.8. Issuance of Additional Bonds. One or more series of Bonds payable from
the TIF Revenues in addition to the Series 20__ Bonds (“Additional Bonds”), may be
authenticated and delivered from time to time for one or more of the purposes of (i) refunding
entirely one or more series of Bonds outstanding hereunder, if such Bonds may otherwise be
refunded, (ii) advance refunding entirely one or more series of Bonds outstanding hereunder,
regardless of whether such Bonds may otherwise be refunded, if the same is then permitted by
law by depositing with the Trustee, in trust for the sole benefit of such series of Bonds, cash or
investments (but only to the extent that the full faith and credit of the United States of America
are pledged to the timely payment thereof) in a principal amount which will, together with the
income or increment to accrue thereon, be sufficient to pay and redeem (when redeemable) and
discharge such series of Bonds at or before their respective maturity dates, and (iii) financing the
cost or estimated cost incurred or to be incurred by the Company in completing the Projects or
acquiring and/or constructing additional improvements, but not otherwise, and, in each case,
obtaining additional funds to pay the costs to be incurred in connection with the issuance of such
Additional Bonds, to establish reserves with respect thereto and to pay interest during the
estimated construction period of completing the additional improvements, if any.
Prior to the delivery by the Issuer of any such Additional Bonds there shall be filed with
the Trustee:
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(i) A supplement to this Indenture executed by the Issuer and the Trustee
authorizing the issuance of such Additional Bonds, specifying the terms
thereof and providing for the disposition of the proceeds of the sale
thereof.
(ii) The supplement or amendment to the Financing Agreement and the other
instruments, documents, certificates, and opinions referred to in Section
6.1 of the Financing Agreement.
(iii) A copy, duly certified by the Clerk of the Issuer, of the Ordinance, and, if
necessary, any amendments or supplements theretofore adopted and
approved by the Issuer authorizing the execution and delivery of such
supplemental indenture and such supplement to the Financing Agreement
and the issuance of such Additional Bonds.
(iv) A written request of the Issuer to the Trustee to authenticate and deliver
such Additional Bonds.
(v) Satisfaction of the provisions of the Pledge Resolution for the issuance of
Additional Bonds.
Any Additional Bonds issued in accordance with the terms of this Section 2.8 shall be
secured by this Indenture, but such Additional Bonds may bear such date or dates, such interest
rate or rates, and with such maturities, redemption dates and premiums as may be agreed upon by
the Issuer, at the direction of the Company, and the purchaser of such Additional Bonds.
Notwithstanding anything in this Indenture or the Bonds to the contrary, no Additional Bonds
shall be issued under this Indenture without the prior consent of the Requisite Bondholders and
the Company.
Section 2.9. Mutilated, Lost, Stolen, or Destroyed Bonds. If any Bond is mutilated,
lost, stolen or destroyed, then, in the absence of notice to the Trustee that such Bond has been
acquired by a bona fide purchaser, the Issuer may execute and the Trustee may authenticate a
new Bond of like date, maturity and denomination as that mutilated, lost, stolen or destroyed;
provided that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered
to the Issuer, and in the case of any lost, stolen or destroyed Bond, there shall be first furnished
to the Trustee evidence of such loss, theft or destruction satisfactory to the Trustee, together with
indemnity satisfactory to it.
If any such Bond shall have matured, instead of issuing a duplicate Bond the Issuer may
pay the same without surrender thereof; provided, however, that in the case of a lost, stolen or
destroyed Bond, there shall be first furnished to the Trustee evidence of such loss, theft or
destruction satisfactory to the Trustee, together with indemnity satisfactory to it. The Trustee
may charge the holder or owner of such Bond with their reasonable fees and expenses in this
connection. Any Bond issued pursuant to this Section 2.9 shall be deemed part of the original
series of Bonds in respect of which it was issued and an original additional contractual obligation
of the Issuer.
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Section 2.10. Registration and Exchange of Bonds; Persons Treated as Owners. The
Issuer shall cause books for the registration and for the transfer of the Bonds as provided in this
Indenture to be kept by the Trustee which is hereby constituted and appointed the registrar of the
Issuer. Upon surrender for transfer of any fully registered Bond at the principal office of the
Trustee, duly endorsed by, or accompanied by a written instrument or instruments of transfer in
form satisfactory to the Trustee and duly executed by the registered owner or his attorney duly
authorized in writing, the Issuer shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new fully registered Bond or Bonds of the same series
and the same maturity for a like aggregate principal amount. The execution by the Issuer of any
fully registered Bond without coupons of any denomination shall constitute full and due
authorization of such denomination, and the Trustee shall thereby be authorized to authenticate
and deliver such registered Bond. The Trustee shall not be required to transfer or exchange any
fully registered Bond during the period between the Record Date and any interest payment date
of such Bond, nor to transfer or exchange any Bond after the mailing of notice calling such Bond
for redemption has been made, nor during a period of fifteen (15) days next preceding mailing of
a notice of redemption of any Bonds.
As to any fully registered Bond, the person in whose name the same shall be registered
shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of
principal or interest thereon, shall be made only to or upon the order of the registered owner
thereof or its legal representative, but such registration may be changed as hereinabove provided.
All such payments shall be valid and effectual to satisfy and discharge the liability upon such
Bond to the extent of the sum or sums so paid.
(End of Article II)
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ARTICLE III.
APPLICATION OF SERIES 20__ BONDS PROCEEDS
Section 3.1. Deposit of Funds. The initial amount of principal drawn on the Series
20__ Bonds at closing shall be in the amount of $______________, of which $_____________
shall be deposited with the Trustee in the Bond Interest Account of the Construction Fund and be
used to pay Capitalized Interest Costs, and $___________ shall be deposited with the Trustee in
the Construction Account of the Construction Fund and used to pay Costs of Construction,
including the Bond Issuance Costs set forth in Exhibit B which the Trustee is hereby authorized
to pay. The Issuer shall deposit with Trustee in the Construction Fund all remaining draws of
principal on the Series 20__ Bonds which shall be disbursed as provided in Section 4.4. The
deposit of the proceeds of any Additional Bonds shall be as set forth in a supplement to this
Indenture in connection with the issuance of such series of Additional Bonds.
(End of Article III)
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ARTICLE IV.
REVENUE AND FUNDS
Section 4.1. Source of Payment of Bonds. The Bonds herein authorized and all
payments to be made by the Issuer hereunder are not general obligations of the Issuer but are
limited obligations payable solely from the Trust Estate as authorized by the Act and as provided
herein. No covenant or agreement contained in the Bonds or this Indenture shall be deemed to
be a covenant or agreement of the Issuer or of any member, director, officer, agent, attorney or
employee of the Issuer in his or her individual capacity, and neither the Issuer nor any member,
director, officer, agent, attorney, or employee of the Issuer executing the Bonds shall be liable
personally on the Bonds or be subject to any personal liability or accountability by reason of the
issuance of the Bonds.
Section 4.2. Bond Fund. The Trustee shall establish and maintain, so long as any of
the Bonds are outstanding, a separate fund to be known as the “Bond Fund.” Money in the Bond
Fund shall be applied as provided in this Section 4.2.
There shall be deposited in the Bond Fund, as and when received, (a) TIF Revenues in an
amount not to exceed the payments due on the Series 20__ Bonds on the next February 1 or
August 1 plus Annual Fees coming due in the following six months; (b) proceeds of the Series
20__ Bonds to be used to pay interest thereon; (c) any amount remaining in the Construction
Fund to be transferred to the Bond Fund pursuant to Section 4.4 of the Indenture, and any
amount remaining in the Construction Fund to be transferred to the Bond Fund pursuant to the
Indenture upon acceleration of the maturity of the Series 20__ Bonds; and (d) all interest and
other income derived from investments of Bond Fund moneys as provided herein. The Issuer
hereby covenants and agrees that so long as any of the Bonds issued hereunder are outstanding it
will deposit, or cause to be paid to Trustee for deposit in the Bond Fund for its account, all
revenues and receipts derived from the TIF Revenues (taking into account any Parity TIF
Obligations (as defined below)) promptly to meet and pay the principal of, premium, if any, and
interest on the Bonds as the same become due and payable. Nothing herein should be construed
as requiring Issuer to deposit or cause to be paid to Trustee for deposit in the Bond Fund, funds
from any source other than receipts derived from the TIF Revenues.
The Controller of the Issuer shall set aside immediately upon receipt the Tax Increment
into the Issuer’s Allocation Fund as created by IC 36-7-14 and transfer the TIF Revenues to the
Trustee as set forth in Section 4.5. The Trustee is hereby directed to deposit the TIF Revenues
into the Bond Fund in the manner prescribed in this Section 4.2 and in Section 4.5.
Moneys in the Bond Fund shall be used by the Trustee to pay interest, premium, if any,
and principal on the Bonds as they become due at maturity, redemption or upon acceleration.
The Trustee shall transmit such funds to the Paying Agent for any series of Bonds in sufficient
time to insure that such interest will be paid as it becomes due. Any TIF Revenues not needed to
pay debt service on the Series 20__ Bonds on the next February 1 or August 1, plus any Annual
Fees coming due in the following six months, shall be transferred to the Surplus Fund.
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Section 4.3. Surplus Fund. The Trustee shall establish and maintain a separate fund to
be known as the “Surplus Fund.” Money in the Surplus Fund shall be applied as provided in this
Section 4.3.
The Trustee shall deposit in the Surplus Fund, as and when received, all TIF Revenues in
excess of payments due on the Series 20__ Bonds on the next February 1 or August 1, plus any
Annual Fees coming due in the following six months, as provided in Section 4.2. At the written
direction of the Company, TIF Revenues in the Surplus Fund shall, without further authorization,
be used first to pay amounts due on the Series 20__ Bonds and amounts due on any obligations
issued on a parity with the Series 20__ Bonds as to the pledge of Tax Increment (“Parity TIF
Obligations”). Any remaining TIF Revenues shall be used as directed by the Issuer (i) to redeem
or defease the Series 20__ Bonds in whole or in part, or (ii) for return to the Redevelopment
Commission to be used for any other purpose permitted by law.
Section 4.4. Construction Fund. The Issuer shall establish with the Trustee a separate
fund to be known as the Construction Fund, to the credit of which the deposits are to be made as
required by Section 3.1 hereof. The Construction Fund shall consist of the Construction Account
and the bond Interest Account. The Bond Interest Account shall be used to pay Capitalized
Interest Costs, and the Construction Account shall be used to pay Costs of Construction (other
than Capitalized Interest Costs, except to the extent moneys in the Bond Interest Account are
insufficient to pay Capitalized Interest Costs when due).
(a) Bond Issuance Costs of the Series 20__ Bonds (other than those identified in
Exhibit B hereto, for which the execution of this Indenture provides authorization to the Trustee
to pay) shall only be paid or reimbursed upon submission of a requisition signed by the Issuer
and the Company.
(b) Except as set forth in subparagraph (a) of this Section 4.4, moneys on deposit in
the Construction Account shall be paid out from time to time by the Trustee to or upon the order
of the Company to pay or reimburse costs of issuance of the Series 20__ Bonds and to or upon
the order of the Company in order to pay, or as reimbursement to the Company for payment
made, for the Costs of Construction, upon receipt by the Trustee of the written request signed by
the Authorized Representative of the Company:
(1) stating that the costs of an aggregate amount set forth in such
written request have been made or incurred and were necessary for the
construction of the Projects and were made or incurred in accordance with the
construction contracts, plans and specifications, or purchase contracts therefor
then in effect or that the amounts set forth in such written request are for
allowable Costs of Construction of the Projects;
(2) stating that the amount paid or to be paid, as set forth in such
written request, is reasonable and represents a part of the amount payable for the
Costs of Construction of the Projects all in accordance with the cost budget; and
that such payment was not paid in advance of the time, if any, fixed for payment
and was made in accordance with the terms of any contracts applicable thereto
and in accordance with usual and customary practice under existing conditions;
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(3) stating that no part of the said costs was included in any written
request previously filed with the Trustee under the provisions hereof;
(4) stating that such costs are appropriate for the expenditure of
proceeds of the Bonds under the Act; and
(5) stating a recap of vendors and the amount paid .
(c) The Trustee shall rely fully on any such request delivered pursuant to this Section
and shall not be required to make any investigation in connection therewith.
(d) The Issuer shall deliver to the Trustee within fifteen (15) days of completion of
the Projects, in addition to the items required by (b) above, a certificate of its Authorized
Representative of the Company:
(i) stating the date that the Projects were completed; and
(ii) stating that it has made such investigation of such sources of information
as are deemed by him to be necessary, including pertinent records of the
Issuer, and is of the opinion that the Projects have been fully paid for, and
that no claim or claims exist against the Issuer or against the properties of
either out of which a lien based on furnishing labor or material for the
Projects exists or might ripen; provided, however, there may be excepted
from the foregoing statement any claim or claims out of which a lien
exists or might ripen if the Company intends to contest such claim or
claims, in which event such claim or claims shall be described; provided,
further, however, that it shall be stated that funds are on deposit in the
Construction Fund sufficient to make payment of the full amount which
might in any event be payable in order to satisfy such claim or claims.
If such certificate shall state that there is a claim or claims in controversy which create or
might ripen into a lien, there shall be filed with the Issuer and the Trustee a certificate of the
Company when and as such claim or claims shall have been fully paid.
If, after payment by the Trustee of all orders theretofore tendered to the Trustee under the
provisions of subparagraph (b) of this Section 4.4 and after receipt of the statement mentioned in
subparagraph (d)(i) and (ii) of this Section 4.4, there shall remain any balance of moneys in the
Construction Fund, Trustee shall transfer all moneys then in the Construction Fund (except any
disputed claims described in the completion certificate required in Section 4.3(d) hereof) to the
Bond Fund. The Trustee, as directed in writing by the Issuer, shall use any amount transferred to
the Bond Fund to prepay the Series 20__ Bonds at the earliest redemption date.
Section 4.5. TIF Revenues. On or before each January 15 and July 15, commencing
___________ 15, 20___, the Issuer shall transfer to the Trustee, for deposit into the Bond Fund
and the Surplus Fund, the TIF Revenues for the payment of the Series 20__ Bonds. The balance
of any TIF Revenues in excess of such requirements of the Bond Fund shall be deposited into the
Surplus Fund.
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Section 4.6. Trust Funds. All moneys and securities received by the Trustee under the
provisions of this Indenture, shall be trust funds under the terms hereof and shall not be subject
to lien or attachment of any creditor of the Issuer or of the Company. Such moneys shall be held
in trust and applied in accordance with the provisions of this Indenture.
Section 4.7. Investment. Moneys on deposit in the Funds established in this Article IV
hereof shall be invested as provided in Section 6.8 hereof.
(End of Article IV)
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ARTICLE V.
REDEMPTION OF SERIES 20__ BONDS BEFORE MATURITY
Section 5.1. Redemption Dates and Prices.
(a) The Series 20__ Bonds are subject to optional redemption by the Issuer, prior to
maturity, on any date, in whole or in part, in such order of maturity as the Issuer shall direct and
within maturities, at face value, without premium, plus in each case accrued interest to the date
fixed for redemption.
Section 5.2. Notice of Redemption. In the case of redemption of Series 20__ Bonds
pursuant to Section 5.1(a) hereof, notice of the call for any such redemption identifying the
Series 20__ Bonds, or portions of fully registered Series 20__ Bonds, to be redeemed shall be
given by mailing a copy of the redemption notice by first class mail not less than thirty (30) days
nor more than sixty (60) days prior to the date fixed for redemption to the registered Owner of
each Series 20__ Bond to be redeemed at the address shown on the registration books. Such
notice of redemption shall specify the CUSIP number, if any, and, in the event of a partial
redemption the Series 20__ Bond numbers and called amounts of each Series 20__ Bond, the
redemption date, principal amount, interest rate, maturity date and the name and address of the
Trustee and the Paying Agent; provided, however, that failure to give such notice by mailing, or
any defect therein, with respect to any such registered Series 20__ Bond shall not affect the
validity of any proceedings for the redemption of other Series 20__ Bonds.
On and after the redemption date specified in the aforesaid notice, such Series 20__
Bonds, or portions thereof, thus called shall not bear interest, shall no longer be protected by this
Indenture and shall not be deemed to be outstanding under the provisions of this Indenture, and
the holders thereof shall have the right to receive only the redemption price thereof plus accrued
interest thereon to the date fixed for redemption.
Section 5.3. Cancellation. All Bonds which have been redeemed in whole shall be
canceled or otherwise destroyed by the Trustee in accordance with the customary practices of the
Trustee and applicable record retention requirements and shall not be reissued.
Section 5.4. Redemption Payments. Prior to the date fixed for redemption in whole,
funds shall be deposited with Trustee to pay, and Trustee is hereby authorized and directed to
apply such funds to the payment of the Bonds or portions thereof called, together with accrued
interest thereon to the redemption date. Upon the giving of notice and the deposit of funds for
redemption, interest on the Bonds thus called shall no longer accrue after the date fixed for
redemption. No payment shall be made by the Paying Agent upon any Bond until such Bond
shall have been delivered for payment or cancellation or the Trustee shall have received the
items required by Section 2.8 hereof with respect to any mutilated, lost, stolen or destroyed
Bond.
Section 5.5. Partial Redemption of Bonds. If fewer than all of the Series 20__ Bonds
at the time outstanding are to be called for redemption, the maturities of Series 20__ Bonds or
portions thereof to be redeemed shall be selected by the Trustee at the written direction of the
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Company. If fewer than all of the Series 20__ Bonds within a maturity are to be redeemed, the
Trustee shall select in such equitable manner as the Trustee may determine, the Series 20__
Bonds or portions of Series 20__ Bonds within such maturity that shall be redeemed. The
Trustee shall call for redemption in accordance with the foregoing provisions as many Series
20__ Bonds or portions thereof as will, as nearly as practicable, exhaust the moneys available
therefor. Particular Series 20__ Bonds or portions thereof shall be redeemed only in the
minimum principal amount of $100,000 and any $1 integral multiples thereafter.
If less than the entire principal amount of any registered Series 20__ Bond then
outstanding is called for redemption, then upon notice of redemption given as provided in
Section 5.2 hereof, the owner of such registered Series 20__ Bond shall surrender such Series
20__ Bond to the Paying Agent in exchange for (a) payment of the redemption price of, plus
accrued interest on the principal amount called for redemption and (b) a new Series 20__ Bond
or Series 20__ Bonds of like series in an aggregate principal amount equal to the unredeemed
balance of the principal amount of such registered Series 20__ Bond, which shall be issued
without charge therefor.
(End of Article V)
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ARTICLE VI.
GENERAL COVENANTS
Section 6.1. Payment of Principal and Interest. The Issuer covenants that it will
promptly pay the principal of, 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 the Bonds
according to the true intent and meaning thereof. The principal, interest and premium, if any, on
the Bonds are payable solely and only from the Trust Estate including the TIF Revenues which
are hereby specifically pledged and assigned to the payment thereof in the manner and to the
extent herein specified, and nothing in the Bonds or in this Indenture should be considered as
pledging any other funds or assets of the Issuer. The Bonds, and the interest payable thereon,
do not and shall not represent or constitute a debt of the Issuer within the meaning of the
provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and
credit of the Issuer. The Bonds, as to both principal and interest, are not an obligation or
liability of the State of Indiana, or of any political subdivision or taxing authority thereof,
but are a special limited obligation of the Issuer and are payable solely and only from the
Trust Estate including the TIF Revenues pledged and assigned for their payment in
accordance with the Indenture. Neither the faith and credit nor the taxing power of the
Issuer, the State of Indiana or any political subdivision or taxing authority thereof is
pledged to the payment of the principal of, premium, if any, or the interest on the Bonds.
The Bonds do not grant the owners or holders thereof any right to have the Issuer, the
State of Indiana or its General Assembly, or any political subdivision or taxing authority of
the State of Indiana, levy any taxes or appropriate any funds for the payment of the
principal of, premium, if any, or interest on the Bonds. The Issuer has no taxing power
with respect to the Bonds. No covenant or agreement contained in the Bonds or this
Indenture shall be deemed to be a covenant or agreement of the Redevelopment
Commission, the Commission, or of any member, director, officer, agent, attorney or
employee of the Redevelopment Commission, the Commission or the Issuer in his or her
individual capacity, and neither the Redevelopment Commission, the Commission nor any
member, director, officer, agent, attorney or employee of the Redevelopment Commission,
Commission or the Issuer executing the Bonds shall be liable personally on the Bonds or be
subject to any personal liability or accountability by reason of the issuance of the Bonds.
Section 6.2. Performance of Covenants. The Issuer covenants that it will faithfully
perform at all times any and all covenants, undertakings, stipulations and provisions contained in
this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all
proceedings of its members pertaining thereto. The Issuer represents that it is duly authorized
under the constitution and laws of the State of Indiana to issue the Bonds authorized hereby and
to execute this Indenture, and to pledge the TIF Revenues in the manner and to the extent herein
set forth; that all action on its part for the issuance of the Bonds and the execution and delivery
of this Indenture has been duly and effectively taken, and that the Bonds in the hands of the
holders and owners thereof are and will be valid and enforceable obligations of the Issuer
according to the import thereof, subject to bankruptcy, insolvency, reorganization, moratorium
and other similar laws, judicial decisions and principles of equity relating to or affecting
creditors’ rights generally and subject to the valid exercise of the constitutional powers of the
Issuer, the State of Indiana and the United States of America.
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Section 6.3. Ownership; Instruments of Further Assurance. The Issuer covenants that
it will defend its interest in the Financing Agreement to the Trustee, for the benefit of the holders
and owners of the Bonds against the claims and demands of all persons whomsoever. The Issuer
covenants that it will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably require for the better assuring,
transferring, mortgaging, conveying, pledging, assigning and confirming unto the Trustee, the
Financing Agreement.
Section 6.4. Filing of Indenture, Financing Agreement and Security Instruments. The
Issuer, upon the written direction and at the sole expense of the Company, shall cause this
Indenture, the Financing Agreement and all supplements thereto as well as such other security
instruments, financing statements and all supplements thereto and other instruments (other than
continuation statements, which, if applicable, will be filed by the Trustee) as may be required
from time to time to be filed in such manner and in such places as may be required by law in
order to fully preserve and protect the lien hereof and the security of the holders and owners of
the Bonds and the rights of the Trustee hereunder. This Section 6.4 shall impose no duty to
record or file the instruments noted above where filing or recordation is not required by law in
order to perfect a security interest. Continuation of financing statements may be filed without
consent of the debtor parties thereto.
Section 6.5. Inspection of Books. The Issuer covenants and agrees that all books and
documents in its possession relating to the Projects and the revenues derived from the Projects
shall at all times be open to inspection by such accountants or other agents as the Trustee may
from time to time designate.
Section 6.6. List of Bondholders. The Trustee will keep on file at the corporate trust
office of the Trustee a list of names and addresses of the holders of all Bonds. At reasonable
times and under reasonable regulations established by the Trustee, said list may be inspected and
copied by the Company or by holders and/or owners (or a designated representative thereof) of
25% or more in principal amount of Bonds then outstanding, such ownership and the authority of
any such designated representative to be evidenced to the satisfaction of the Trustee.
Section 6.7. Rights Under Financing Agreement. The Issuer agrees that the Trustee in
its name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the
Company under and pursuant to the Financing Agreement for and on behalf of the Bondholders,
whether or not the Issuer is in default hereunder.
Section 6.8. Investment of Funds. Moneys in the Funds established hereunder may be
invested in Qualified Investments to the extent and in the manner provided for in Section 3.9 of
the Financing Agreement. The Trustee shall not be liable or responsible for any loss resulting
from any such investment. The interest accruing thereon and any profit realized from such
investments shall be credited, and any loss resulting from such investments shall be charged to
the fund in which the money was deposited.
Section 6.9. Non-presentment of Bonds. If any Bond shall not be presented for
payment when the principal thereof becomes due, either at maturity, or at the date fixed for
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redemption thereof, or otherwise, if funds sufficient to pay any such Bond shall have been made
available to Paying Agent for the benefit of the holder or holders thereof, all liability of Issuer to
the holder thereof for the payment of such Bond shall forthwith cease, determine and be
completely discharged, and thereupon it shall be the duty of Paying Agent to hold such funds for
four (4) years without liability for interest thereon, for the benefit of the holder of such Bond,
who shall thereafter be restricted exclusively to such funds, for any claim of whatever nature on
his part under this Indenture or on, or with respect to, such Bond.
(End of Article VI)
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ARTICLE VII.
DEFAULTS AND REMEDIES
Section 7.1. Events of Default. Each of the following events is hereby declared an
“event of default,” that is to say, if:
(a) payment of any amount payable on the Bonds shall not be made when the same is
due and payable, unless the Requisite Bondholders shall have consented thereto, however, if the
Issuer is unable to pay to the Trustee any or sufficient TIF Revenues with which to make
payment to the Bondholders, it shall not constitute an Event of Default; or; or
(b) any event of default as defined in Section 4.1 of the Financing Agreement shall
occur and be continuing, unless the Requisite Bondholders shall have consented thereto; or
(c) the Issuer shall default in the due and punctual performance of any other of the
covenants, conditions, agreements and provisions contained in the Bonds or in this Indenture or
any agreement supplemental hereof on the part of the Issuer to be performed, and such default
shall continue for thirty (30) days after written notice specifying such default and requiring the
same to be remedied shall have been given to the Issuer and the Company by the Trustee, which
may give such notice in its discretion and shall give such notice at the written request of the
holders of all of the Bonds then outstanding hereunder; or
(d) the Issuer shall fail to apply collected TIF Revenues as required by Article IV of
this Indenture.
Section 7.2. Acceleration; Termination of TIF Revenue Pledge.
(a) Upon the happening of any event of default specified in clause (a), (b) or (c) of
Section 7.1 and the continuance of the same for the period, if any, specified in that Section, and
with the prior consent of Requisite Bondholders, the Trustee, by notice in writing delivered to
the Issuer and the Company may declare the entire unpaid principal amount of the Bonds and
Parity TIF Obligations then outstanding, and the interest accrued thereon, to be immediately due
and payable. The Issuer’s obligation to pay TIF Revenues shall not be subject to acceleration.
(b) Upon the happening of any event of default specified in clause (a), (b) or (c) of
Section 7.1 and the continuance of the same for the period, if any, specified in that Section, and
notwithstanding Section 7.4 hereof, the pledge of the TIF Revenues to the payment of the Bonds
shall immediately terminate and be of no further force and effect, the TIF Revenues shall no
longer be deemed part of the Trust Estate under this Indenture, the Issuer shall have no further
obligation to make any transfers of TIF Revenues to the Trustee under Section 4.2 or Section 4.4
hereof, and the Bonds will be deemed defeased and paid in full, without any action of the Trustee
or Bondholders.
Section 7.3. Remedies; Rights of Bondholders.
(i) If an event of default occurs, with the consent of Requisite Bondholders,
the Trustee may pursue any available remedy by suit at law or in equity to
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enforce the payment of the principal of, premium, if any, and interest on
the Bonds then outstanding, to enforce any obligations of the Issuer
hereunder, and of the Company under the Financing Agreement.
(ii) Upon the occurrence of an event of default, if directed to do so by the
Requisite Bondholders and if indemnified as provided in Section 8.1
hereof, the Trustee shall be obliged to exercise such one or more of the
rights and powers conferred by this Article as the Trustee, being advised
by counsel, shall deem most expedient in the interests of the Bondholders.
(iii) No remedy by the terms of this Indenture conferred upon or reserved to
the Trustee (or to the Bondholders) is intended to be exclusive of any
other remedy, but each and every such remedy shall be cumulative and
shall be in addition to any other remedy given to the Trustee or to the
Bondholders hereunder or now or hereafter existing at law or in equity or
by statute.
(iv) No delay or omission to exercise any right or power accruing upon any
event of default shall impair any such right or power or shall be construed
to be a waiver of any event of default or acquiescence therein, and every
such right and power may be exercised from time to time as may be
deemed expedient.
(v) No waiver of any event of default hereunder, whether by the Trustee or by
the Bondholders, shall extend to or shall affect any subsequent event of
default or shall impair any rights or remedies consequent thereon.
Section 7.4. Right of Bondholders to Direct Proceedings. Anything in this Indenture to
the contrary notwithstanding, except as provided in Section 7.2(b) hereof, the Requisite
Bondholders shall have the right, at any time, by an instrument or instruments in writing
executed and delivered to the Trustee, to direct the time, the method and place of conducting all
proceedings to be taken in connection with the enforcement of the terms and conditions of this
Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided,
that such direction shall not be otherwise than in accordance with the provisions of law and of
this Indenture, and provided that the Trustee is obligated to pursue its remedies under the
provisions of Section 7.2 hereof before any other remedies are sought.
Section 7.5. Application of Moneys. Notwithstanding anything herein to the contrary,
all moneys received by the Trustee pursuant to any right given or action taken under the
provisions of this Article and any other moneys held as part of the Trust Estate shall, after
payment of the cost and expenses of the proceedings resulting in the collection of such moneys
and of the outstanding fees, expenses, liabilities and advances incurred or made by the Trustee or
the Issuer, and the creation of a reasonable reserve for anticipated fees, costs and expenses, be
deposited in the Bond Fund and all moneys in the Bond Fund shall be applied as follows:
(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:
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First: To the payment to the persons entitled thereto of all installments of interest
then due on the Bonds, in the order of the maturity of the installments of such interest,
and if the amount available shall not be sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts due on such installment, to the
persons entitled thereto, without any discriminations or privilege; and
Second: To the payment to the persons entitled thereto of the unpaid principal of
and premium, if 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), in the order of their due dates, with interest on such Bonds from the
respective dates upon which they become due, and if the amount available shall not be
sufficient to pay in full Bonds due on any particular date, together with such interest, then
to the payment ratably, according to the amount of principal due on such date, to the
persons entitled thereto without any discrimination or privilege.
Third: To the payment of the balance, if any, to the Company or its successors or
assigns, upon the written request of the Company or to whomsoever may be lawfully
entitled to receive the same upon its written request, or as any court of competent
jurisdiction may direct, except for any remaining TIF Revenues which shall be paid to the
Redevelopment Commission.
(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 to the payment of the principal and
interest then due and unpaid upon the Bonds, without preference or priority of principal over
interest or of interest over any other installment of interest, according to the amounts due
respectively for principal and interest, to the persons entitled thereto without any discrimination
or privilege.
(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 then, subject to the provisions of subsection (b) of this Section 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 subsection (a) of this 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 to the amount of such moneys available for application and the likelihood of
additional moneys becoming available for such application in the future. Whenever the Trustee
shall apply such funds, it shall fix the date (which shall be an interest payment date unless it shall
deem another date more suitable) upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the deposit with it of any such moneys and
of the fixing of any such date and shall not be required to make payment to the holder of any
Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
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Section 7.6. Remedies Vested In Trustee. All rights of action (including the right to
file proof of claims) under this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the production thereof in any trial or other
proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any
holders of the Bonds, and any recovery of judgment shall, subject to the provisions of Section
7.5 hereof, be for the equal benefit of the holders of the outstanding Bonds. However, the
Trustee may only act with the consent and direction of the Requisite Bondholders.
Section 7.7. Rights and Remedies of Bondholders. No holder of any Bond shall have
any right to institute any suit, action or proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust thereof or for the appointment of a receiver or any
other remedy hereunder, unless a default has occurred of which the Trustee has been notified as
provided in subsection (g) of Section 8.1, or of which by said subsection it is deemed to have
notice, nor unless also such default shall have become an Event of Default and the holders of all
Bonds then outstanding shall have made written request to the Trustee and shall have offered
reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, nor unless also they have offered to the
Trustee indemnity as provided in Section 8.1 hereof, nor unless the Trustee shall thereafter fail or
refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding
in its, his, or their own name or names. Such notification, request and offer of indemnity are
hereby declared in every case at the option of the Trustee to be conditions precedent to the
execution of the powers and trusts of this Indenture, and to any action or cause of action for the
enforcement of this Indenture, or for the appointment of a receiver or for any other remedy
hereunder; it being understood and intended that no one or more holders of the Bonds shall have
any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by
its, his or their action or to enforce any right hereunder except in the manner herein provided,
and that all proceedings at law or in equity shall be instituted, had and maintained in the manner
herein provided and for the equal benefit of the holders of all Bonds then outstanding. Nothing
in this Indenture contained shall, however, affect or impair the right of any Bondholder to
enforce the covenants of the Issuer to pay the principal of and interest on each of the Bonds
issued hereunder to the respective holders thereof at the time, place, from the source and in the
manner in said Bonds expressed.
Section 7.8. Termination of Proceedings. In case the Trustee shall have proceeded to
enforce any right under this Indenture by the appointment of a receiver, or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Issuer, the Company and the Trustee shall
be restored to their former positions and rights hereunder, respectively, with respect to the Trust
Estate, and all rights, remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.
Section 7.9. Waivers of Events of Default. At the direction of the Requisite
Bondholders, the Trustee may in its discretion waive any event of default hereunder and its
consequences and rescind any declaration of maturity of principal of and interest on the Bonds,
and shall do so upon the written request of the holders of (1) all the Bonds then outstanding in
respect of which default in the payment of principal and/or premium, if any, and/or interest
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exists, or (2) all Bonds then outstanding in the case of any other default; provided, however, that
there shall not be waived (a) any event of default in the payment of the principal of any
outstanding Bonds at the date of maturity specified therein, or (b) any default in the payment
when due of the interest on any such Bonds unless prior to such waiver or rescission, arrears of
interest, with interest (to the extent permitted by law) at the rate borne by the Bonds in respect of
which such default shall have occurred on overdue installments of interest or all arrears of
payments of principal and premium, if any, when due, as the case may be, and all expenses of the
Trustee in connection with such default shall have been paid or provided for, and in case of any
such waiver or rescission, or in case any proceeding taken by the Trustee on account of any such
default shall have been discontinued or abandoned or determined adversely, then and in every
such case the Issuer, the Trustee and the Bondholders shall be restored to their former positions
and rights hereunder, respectively, but no such waiver or rescission shall extend to any
subsequent or other default, or impair any right consequent thereon.
(End of Article VII)
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ARTICLE VIII.
THE TRUSTEE AND PAYING AGENT
Section 8.1. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed
upon it by this Indenture, and agrees to perform said trusts as a corporate trustee ordinarily
would perform said trusts under a corporate indenture, but only upon the terms and conditions set
forth herein, and no implied covenants or obligations shall be read into this Indenture against the
Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants or obligations
should be read into this Indenture against the Trustee. If any Event of Default under this
Indenture shall have occurred and be continuing, to which the Trustee has knowledge, the
Trustee shall exercise such of the rights and powers vested in it by this Indenture and shall use
the same degree of care and skill in its exercise as a prudent person would exercise or use under
the circumstances in the conduct of such prudent person's own affairs in exercising any rights or
remedies or performing any of its duties hereunder. The Trustee agrees to perform such trusts
only 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 if appointed through attorneys, agents, receivers or employees but shall not be
answerable for the conduct of the same if appointed with due care, and shall be entitled to the
opinion and advice of counsel concerning all matters of trusts hereof and the duties hereunder,
and may in all cases pay such reasonable compensation to all such attorneys, agents, receivers
and employees as may reasonably be employed in connection with the trusts hereof. The Trustee
may act upon the opinion or advice of any attorney (who may be the attorney or attorneys for the
Issuer or the Company). The Trustee shall not be responsible for any loss or damage resulting
from any action or non-action in good faith in reliance upon such opinion or advice.
(b) The Trustee shall not be responsible for any recital herein, or in the Bonds (except
in respect to the certificate of the Trustee endorsed on the Bonds), or for the recording or re-
recording, filing or re-filing of this Indenture or any financing statements (other than
continuation statements, if applicable) in connection therewith, or for insuring the property
herein conveyed or collecting any insurance moneys, or for the validity of the execution by the
Issuer of this Indenture or of any supplements thereto or instruments of further assurance, or for
the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby,
or for the value, condition or title of the property herein conveyed or otherwise as to the
maintenance of the security hereof or as to the validity or sufficiency of this Indenture or of the
Bonds; and the Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreements on the part of the Issuer or on the part of
the Company under the Financing Agreement; but the Trustee may require of the Issuer or the
Company full information and advice as to the performance of the covenants, conditions and
agreements aforesaid as to the condition of the property herein conveyed. The Trustee shall have
no obligation to perform any of the duties of the Issuer under the Financing Agreement, and the
Trustee shall not be responsible or liable for any loss suffered in connection with any investment
of funds made by it in accordance with the provisions of this Indenture.
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(c) The Trustee shall not be accountable for the use of any Bonds, or the proceeds
thereof, authenticated by it or the Paying Agent or delivered hereunder or for any money paid to
or upon the order of the City under any provision of this Indenture or of the Financing
Agreement. The Trustee, in its individual or any other capacity, may become the owner of
Bonds secured hereby with the same rights which it would have if not Trustee.
(d) The Trustee may rely and shall be protected in acting upon any notice, request,
consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be
genuine and correct and to have been signed or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any
person who at the time of making such request or giving such authority or consent is the owner
of any 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, or whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee shall be entitled to rely upon a certificate signed on
behalf of the Issuer or the Company by its duly authorized officers as sufficient evidence of the
facts therein contained and prior to the occurrence of a default of which the Trustee has been
notified as provided in subsection (g) of this Section, or of which said subsection it is deemed to
have notice, shall also be at liberty to accept a similar certificate to the effect that any particular
dealing, transaction or action is necessary or expedient, but may at its discretion secure such
further evidence deemed necessary or advisable, but shall in no case be bound to secure the
same. The Trustee may accept a certificate of the Issuer or the Company under its seal to the
effect that an ordinance or resolution in the form therein set forth has been adopted by the Issuer
or the Company as conclusive evidence that such ordinance or resolution has been duly adopted,
and is in full force and effect.
(f) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other than its gross
negligence or willful misconduct; provided, however, that the provisions of this subsection shall
not affect the duties of the Trustee hereunder, including the provisions of Article VII hereof.
(g) The Trustee shall not be required to take notice or be deemed to have notice of
any event of default hereunder (other than payment of the principal and interest on the Bonds)
unless the Trustee shall be specifically notified in writing of such default by the Issuer or by the
holders of at least twenty-five percent (25%) in aggregate principal amount of all Bonds then
outstanding and all notices or other instruments required by this Indenture to be delivered to the
Trustee must, in order to be effective, be delivered at the corporate trust office of the Trustee,
and in the absence of such notice so delivered, the Trustee may conclusively assume there is no
default except as aforesaid.
(h) The Trustee shall not be personally liable for any debts contracted or for damages
to persons or to personal property injured or damaged, or for salaries or nonfulfillment of
contracts during any period in which it may be in possession of or managing the Trust Estate.
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(i) At any and all reasonable times and upon reasonable prior written notice, the
Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right, but shall not be required, to fully inspect the Trust Estate,
and to take such memoranda from and in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond or surety in respect of the
execution of the said trusts and powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall
have the right, but shall not be required, to demand, in respect of the authentication of any
Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within
the purview of this Indenture, any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in addition to that by the terms hereof
required as a condition of such action by the Trustee, deemed desirable for the authentication of
any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee.
(l) Before taking any action under this Indenture, the Trustee may require that a
satisfactory indemnity bond be furnished for the reimbursement of all costs and expenses to
which it may be put (including without limitation attorney’s fees and expenses) and to protect it
against all liability, except liability which is adjudicated to have resulted from its gross
negligence or willful misconduct in connection with any action so taken. Such indemnity shall
survive the termination of this Indenture.
(m) All moneys received by the Trustee or the Paying Agent shall, until used or
applied or invested as herein provided, be held in trust for the purposes for which they were
received but need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor the Paying Agent shall be under any liability for interest on any moneys
received hereunder.
(n) The Trustee shall have no responsibility with respect to any information,
statement or recital in any official statement, offering memorandum or any other disclosure
material prepared or distributed with respect to the Bonds and shall have no responsibility for
compliance with any state or federal securities laws in connection with the Bonds
(o) The Trustee agrees to accept and act upon instructions or directions pursuant to
this Indenture sent by unsecured e-mail or other similar unsecured electronic methods, provided,
however, that the Issuer and the Company shall provide to the Trustee an incumbency certificate
listing designated persons authorized to provide such instructions, which incumbency certificate
shall be amended whenever a person is to be added or deleted from the listing. If the Issuer and
the Company elect to give the Trustee e-mail instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable
for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon
and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. The Issuer and the Company agree to assume
all risks arising out of the use of such electronic methods to submit instructions and directions to
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the Trustee, including without limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third parties.
Section 8.2. Fees, Charges and Expenses of Trustee and Paying Agent. The Trustee
and Paying Agent shall be entitled to payment and/or reimbursement for reasonable fees for its
services rendered hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred by the Trustee or Paying Agent in
connection with such services. In the event that it should become necessary for the Trustee to
perform extraordinary services, the Trustee shall be entitled to reasonable additional
compensation therefor and to reimbursement for reasonable and necessary extraordinary
expenses in connection therewith; provided that if such extraordinary services or extraordinary
expenses are occasioned by the gross negligence or willful misconduct of the Trustee it shall not
be entitled to compensation or reimbursement therefore. The Trustee shall have a first lien with
right of payment prior to payment on account of interest or principal of, or premium, if any, on
any Bond for the foregoing advances, fees, costs and expenses incurred. The Trustee shall be
entitled to payment and reimbursement for the reasonable fees and charges of the Trustee as
Paying Agent for the Bonds.
Section 8.3. Notice to Bondholders if Default Occurs. If an Event of Default occurs of
which the Trustee is by subsection (g) of Section 8.1 hereof required to take notice or if notice of
an Event of Default be given as in said subsection (g) provided, then the Trustee shall give
written notice thereof by registered or certified mail to the Company and the last known holders
of all Bonds then outstanding shown by the list of Bondholders required by the terms of this
Indenture to be kept at the office of the Trustee, unless such Event of Default has been cured or
waived; provided, however, that the Trustee shall be protected in withholding such notice if and
so long as the Trustee in good faith determines that the withholding of such notices is in the
interests of the Bondholders.
Section 8.4. Intervention by Trustee. In any judicial proceeding to which the Issuer is
a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the
interests of holders of the Bonds, the Trustee may intervene on behalf of Bondholders and,
subject to the provisions of Section 8.1(l), shall do so if requested in writing by the owners of at
least twenty-five percent (25%) in aggregate principal amount of all Bonds then outstanding.
The rights and obligations of the Trustee under this Section are subject to the approval of a court
of competent jurisdiction.
Section 8.5. Successor Trustee. Any corporation or association into which the Trustee
may be converted or merged, or with which it may be consolidated, or to which it may sell or
transfer its corporate trust business and assets as a whole or substantially as a whole, or any
corporation or association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor Trustee hereunder and
vested with all of the title to the whole property or trust estate and all the trusts, powers,
discretions, immunities, privileges and all other matters as was its predecessor, without the
execution or filing of any instrument or any further act, deed or conveyance on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
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Section 8.6. Resignation by the Trustee. The Trustee and any successor Trustee may at
any time resign from the trusts hereby created by giving thirty days’ written notice to the Issuer
and the Company and by first class mail to each registered owner of Bonds then outstanding and
to each holder of Bonds as shown by the list of Bondholders required by this Indenture to be kept
at the office of the Trustee, and such resignation shall take effect at the end of such thirty (30)
days, or upon the earlier appointment of a successor Trustee by the Bondholders or by the Issuer.
Such notice to the Issuer and the Company may be served personally or sent by registered or
certified mail.
Section 8.7. Removal of the Trustee. The Trustee may be removed at any time by an
instrument or concurrent instruments in writing delivered to the Trustee and to the Issuer and
signed by the Requisite Bondholders.
Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary
Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in
course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in
case it shall be taken under control of any public officer or officers, or of a receiver appointed by
a court, a successor may be appointed by the owners of a majority in aggregate principal amount
of Bonds then outstanding, by an instrument or concurrent instruments in writing signed by such
owners, or by their attorneys-in-fact, duly authorized; provided, nevertheless, that in case of such
vacancy, the Issuer, by an instrument executed by one of its duly authorized officers, may
appoint a temporary Trustee to fill such vacancy until a successor Trustee shall be appointed by
the Bondholders in the manner above provided; and any such temporary Trustee so appointed by
the Issuer shall immediately and without further act be superseded by the Trustee so appointed
by such Bondholders. Every such Trustee appointed pursuant to the provisions of this Section
shall be a trust company or bank, having a reported capital and surplus of not less than One
Hundred Million Dollars ($100,000,000) if there be such an institution willing, qualified and able
to accept the trust upon reasonable or customary terms.
Section 8.9. Concerning Any Successor Trustees. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer and the
Company 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 and thereupon
the duties and obligations of the predecessor shall cease and terminate; but such predecessor
shall, nevertheless, on the written request of the Issuer, or of its successor, and upon approval by
the Issuer of the records and accounts of the predecessor Trustee, a release of the predecessor
Trustee by the Issuer, and the payment of the fees and expenses owed to the predecessor Trustee,
execute and deliver an instrument transferring to such successor Trustee all the estates,
properties, rights, powers and trusts of such predecessor hereunder; and every predecessor
Trustee shall deliver all securities and moneys held by it as Trustee hereunder to its successor.
Should any instrument in writing from the Issuer be required by any successor Trustee for more
fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested
or intended to be vested in the predecessor any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. The resignation of any Trustee
and the instrument or instruments removing any Trustee and appointing a successor hereunder,
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together with all other instruments provided for in this Article shall be filed by the successor
Trustee in each office, if any, where the Indenture shall have been filed.
Section 8.10. Trustee Protected in Relying Upon Resolutions, etc. Subject to the
conditions contained herein, the resolutions, ordinances, opinions, certificates and other
instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence
of the facts and conclusions stated therein and shall be full warrant, protection and authority to
the Trustee for the release of property and the withdrawal of cash hereunder.
Section 8.11. Appointment of Paying Agent and Registrar; Resignation or Removal of
Paying Agent. The Trustee is hereby appointed “Paying Agent” under this Indenture. Any
Paying Agent may at any time resign and be discharged of the duties and obligations created by
this instrument and any supplemental indenture by giving at least 30 days’ written notice to the
Issuer, the Company and the Trustee. Any Paying Agent may be removed at any time by an
instrument, filed with such Paying Agent and the Trustee and signed by the Issuer and the
Company. Any successor Paying Agent shall be appointed by the Issuer at the direction of the
Company and shall be a bank or trust company duly organized under the laws of any state of the
United States or a national banking association, in each case having a capital stock and surplus
aggregating at least $100,000,000, willing and able to accept the office on reasonable and
customary terms and authorized by law to perform all the duties imposed upon it by this
Indenture.
In the event of the resignation or removal of any Paying Agent, such Paying Agent shall
pay over, assign and deliver any moneys or securities held by it as Paying Agent to its
successors, or if there is no successor, to the Trustee.
(End of Article VIII)
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ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders. With
the prior consent of the Company, the Issuer and the Trustee may without the consent of, or
notice to, any of the Bondholders, enter into an indenture or indentures supplemental to this
Indenture, as shall not be inconsistent with the terms and provisions hereof, for any one or more
of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of the Bondholders any
additional rights, remedies, powers or authority that may lawfully be granted to or conferred
upon the Bondholders or the Trustee or any of them;
(c) To subject to this Indenture additional security, revenues, properties or collateral;
or
(d) To make any other change in this Indenture which, in the judgment of the Trustee,
who may rely on the advice and opinion of counsel, is not to the material prejudice of the
Trustee, the Company, the Issuer or the holders of the Bonds; or
(e) To modify, amend or supplement the Indenture in such manner as required to
permit the qualification thereof under the Trust Indenture Act of 1939, as amended, or any
similar Federal statute hereafter in effect, and, if they so determine, to add to the Indenture such
other terms, conditions and provisions as may be required by said Trust Indenture Act of 1939,
as amended, or similar federal statute.
Section 9.2. Supplemental Indentures Requiring Consent of Bondholders. Exclusive of
supplemental indentures covered by Section 9.1 hereof, and subject to the terms and provisions
contained in this Section, and not otherwise, the Requisite Bondholders shall have the right, from
time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to
and approve the execution by the Issuer and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by the Issuer for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental indenture; provided however, that
no such supplemental indenture may be entered into without the prior consent of the Company;
and provided further that nothing in this section contained shall permit or be construed as
permitting (except as otherwise permitted in this Indenture) (a) an extension of the stated
maturity or reduction in the principal amount of, or reduction in the rate or extension of the time
of paying of interest on, or reduction of any premium payable on the redemption of, any Bonds,
without the consent of the holder of such Bond, or (b) a reduction in the amount or extension of
the time of any payment required by any sinking fund applicable to any Bonds without the
consent of the holders of all the Bonds which would be affected by the action to be taken, or (c)
the creation of any lien prior to or, except for the lien of Parity Obligations (including Additional
Bonds), on a parity with the lien of this Indenture without the consent of the holders of all the
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Bonds at the time outstanding, or (d) a reduction in the aforesaid aggregate principal amount of
Bonds the holders of which are required to consent to any such supplemental indenture, without
the consent of the holders of all the Bonds at the time outstanding which would be affected by
the action to be taken, or (e) a modification of the rights, duties or immunities of the Trustee,
without the written consent of the Trustee, or (f) a privilege or priority of any Bond over any
other Bonds, or (g) a derivation of the Owners of any Series 20__ Bonds then Outstanding of the
lien thereby created.
Anything herein to the contrary notwithstanding, a supplemental indenture under this
Article which affects any rights of the Company shall not become effective unless and until the
Company shall have consented in writing to the execution and delivery of such supplemental
indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery
of any such supplemental indenture together with a copy of the proposed supplemental indenture
to be mailed by certified or registered mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental indenture.
Section 9.3. Opinion. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, the opinion of any counsel approved by it, as conclusive evidence that
any such proposed supplemental indenture complies with the provisions of this Indenture, and
that it is proper for the Trustee, under the provisions of this Article, to join in the execution of
such supplemental indenture.
(End of Article IX)
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ARTICLE X.
AMENDMENTS TO THE FINANCING AGREEMENT
Section 10.1. Amendments, etc. to Financing Agreement Not Requiring Consent of
Bondholders. The Issuer and the Trustee with the consent of the Company shall, without the
consent of or notice to the Bondholders, consent to any amendment, change or modification of
the Financing Agreement as may be required (i) by the provisions of the Financing Agreement
and this Indenture, or (ii) for the purpose of curing any ambiguity or formal defect or omission,
or (iii) in connection with any other change therein which, in the judgment of the Trustee (who
may rely upon the advice and opinion of counsel), is not to the prejudice of the Trustee, the
Issuer or the holders of the Bonds.
Section 10.2. Amendments, etc. to Financing Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications as provided in Section 10.1
hereof, neither the Issuer nor the Trustee shall consent to any other amendment, change or
modification of the Financing Agreement without the written approval or consent of the
Requisite Bondholders given and procured as in Section 9.2 provided.
Section 10.3. Opinion. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, the opinion of any counsel approved by it, as conclusive evidence that
any such proposed amendment complies with the provisions of this Indenture and Financing
Agreement, and that it is proper for the Trustee, under the provisions of this Article, to join in the
execution of such amendment.
(End of Article X)
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ARTICLE XI.
MISCELLANEOUS
Section 11.1. Satisfaction and Discharge. All rights and obligations of the Issuer and
the Company under the Financing Agreement and this Indenture shall terminate, and such
instruments shall cease to be of further effect, and the Trustee shall execute and deliver all
appropriate instruments evidencing and acknowledging the satisfaction of this Indenture, and
shall assign and deliver to the Company any moneys and investments in all Funds established
hereunder when
(a) all fees and expenses of the Trustee and the Paying Agent shall have been paid;
(b) the Issuer and the Company shall have performed all of their covenants and
promises in the Financing Agreement and in this Indenture; and
(c) all Bonds theretofore authenticated and delivered (i) have become due and
payable, or (ii) are to be retired or called for redemption under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee at the expense of the Company, or
(iii) have been delivered to the Trustee canceled or for cancellation; and, in the case of (i) and (ii)
above, there shall have been deposited with the Trustee either cash in an amount which shall be
sufficient, or investments (but only to the extent that the full faith and credit of the United States
of America are pledged to the timely payment thereof) the principal of and the interest on which
when due will provide moneys which, together with the moneys, if any, deposited with the
Trustee, shall be sufficient, to pay when due the principal or redemption price, if applicable, and
interest due and to become due on the Bonds and prior to the redemption date or maturity date
thereof, as the case may be.
Section 11.2. Defeasance of Bonds. Any Bond shall be deemed to be paid and no
longer Outstanding within the meaning of this Article and for all purposes of this Indenture when
(a) payment of the principal and interest of and premium, if any, on such Bond either (i) shall
have been made or caused to be made in accordance with the terms thereof, or (ii) shall have
been provided for by irrevocably depositing with the Trustee in trust and irrevocably set aside
exclusively for such payment, (1) moneys sufficient to make such payment or (2) Governmental
Obligations maturing as to principal and interest in such amounts and at such times as will insure
the availability of sufficient moneys to make such payment, and (b) all necessary and proper
fees, compensation, indemnities and expenses of the Trustee and the Issuer pertaining to the
Bonds with respect to which such deposit is made shall have been paid or the payment thereof
provided for. At such time as a Bond shall be deemed to be paid hereunder, as aforesaid, such
Bond shall no longer be secured by or entitled to the benefits of this Indenture, except for the
purposes of any such payment from such moneys or Governmental Obligations.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the immediately
preceding paragraph shall be deemed payment of such Bonds as aforesaid until (a) proper notice
of redemption of such Bonds shall have been previously given in accordance with Section 5.2 of
this Indenture, or if the Bonds are not by their terms subject to redemption within the next
succeeding sixty (60) days, until the Company shall have given the Trustee in form satisfactory
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to the Trustee irrevocable instructions to notify, as soon as practicable, the owners of the Bonds,
that the deposit required by the preceding paragraph has been made with the Trustee and that the
Bonds are deemed to have been paid in accordance with this Section 11.2 and stating the
maturity or redemption date upon which moneys are to be available for the payment of the
principal of and the applicable redemption premium, if any, on said Bonds, plus interest thereon
to the due date thereof; or (b) the maturity of such Bonds.
All moneys so deposited with the Trustee as provided in this Section 11.2 may also be
invested and reinvested, at the written direction of the Company, in Governmental Obligations,
maturing in the amounts and at the times as hereinbefore set forth, and all income from all
Governmental Obligations in the hands of the Trustee pursuant to this Section 11.2 which is not
required for the payment of principal of the Bonds and interest and premium, if any, thereon with
respect to which such moneys shall have been so deposited shall be deposited in the Bond Fund
as and when realized and collected for use and application as are other moneys deposited in the
Bond Fund.
Notwithstanding any provision of any other Article of this Indenture which may be
contrary to the provisions of this Section 11.2, all moneys or Governmental Obligations set aside
and held in trust pursuant to the provisions of this Section 11.2 for the payment of Bonds
(including premium thereon, if any) shall be applied to and used solely for the payment of the
particular Bonds (including the premium thereon, if any) with respect to which such moneys or
Governmental Obligations have been so set aside in trust.
Anything in Article 9 hereof to the contrary notwithstanding, if moneys or Governmental
Obligations have been deposited or set aside with the Trustee pursuant to this Section 11.2 for
the payment of Bonds and such Bonds shall not have in fact been actually paid in full, no
amendment to the provisions of this Section 11.2 shall be made without the consent of the owner
of each Bond affected thereby.
The right to register the transfer of or to exchange Bonds shall survive the discharge of
this Indenture.
Section 11.3. Cancellation of Series 20__ Bonds. If the owner of any Series 20__
Bonds presents that Bond to the Trustee with an instrument satisfactory to the Trustee waiving
all claims for payment of that Bond, the Trustee shall cancel that Series 20__ Bond and the
Bondholder shall have no further claim against the Trust Estate, the Issuer or the Company with
respect to that Series 20__ Bond.
Section 11.4. Application of Trust Money. All money or investments deposited with or
held by the Trustee pursuant to Section 11.1 shall be held in trust for the holders of the Bonds,
and applied by it, in accordance with the provisions of the Bonds and this Indenture, to the
payment, either directly or through the Paying Agent, to the persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money or obligations need not be segregated from other funds except
to the extent required by law.
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Section 11.5. Consents, etc., of Bondholders. Any consent, request, direction, approval,
objection or other instrument required by this Indenture to be executed by the Bondholders may
be in any number of concurrent writings of similar tenor and may be executed by such
Bondholders in person or by agent appointed in writing. Provided, however, that wherever this
Indenture or the Financing Agreement requires that any such consent or other action be taken by
the holders of a specified percentage, fraction or majority of the Bonds outstanding, any such
Bonds held by or for the account of the following persons shall not be deemed to be outstanding
hereunder for the purpose of determining whether such requirement has been met: the Issuer,
any of its members, the Company, or the directors, trustees, officers or members of the
Company. For all other purposes, Bonds held by or for the account of such person shall be
deemed to be outstanding hereunder. Proof of the execution of any such consent, request,
direction, approval, objection or other instrument or of the writing appointing any such agent and
of the ownership of Bonds, if made in the following manner, shall be sufficient for any of the
purposes of this Indenture, and shall be conclusive in favor of the Trustee with regard to any
action taken under such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such writing may be
proved by the certificate of any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing such writing acknowledged
before him the execution thereof, or by affidavit of any witness to such execution.
(b) The fact of the holding by any person of Bonds transferable by delivery and the
amounts and numbers of such Bonds, and the date of the holding of the same, may be proved by
a certificate executed by any trust Company, bank or bankers, wherever situated, stating that at
the date thereof the party named therein did exhibit to an officer of such trust Company or bank
or to such banker, as the property of such party, the Bonds therein mentioned if such certificate
shall be deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require
evidence that such Bonds have been deposited with a bank, bankers or trust Company, before
taking any action based on such ownership. In lieu of the foregoing, the Trustee may accept
other proofs of the foregoing as it shall deem appropriate.
For all purposes of this Indenture and of the proceedings for the enforcement hereof, such
person shall be deemed to continue to be the holder of such Bond until the Trustee shall have
received notice in writing to the contrary.
Section 11.6. Limitation of Rights. With the exception of rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Indenture, or the Bonds
is intended or shall be construed to give to any person other than the parties hereto, and the
Company, and the holders of the Bonds, any legal or equitable right, remedy or claim under or in
respect to this Indenture or any covenants, conditions and provisions herein contained, this
Indenture and all of the covenants, conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and the Company and the holders of
the Bonds as herein provided.
Section 11.7. 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
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other provision or provisions hereof or any constitution or statute or rule of public policy, or for
any other reason, such circumstances shall not have the effect of rendering the provision in
question inoperative or unenforceable in any other case or circumstance, or of rendering any
other provision or provisions herein contained invalid, inoperative, or unenforceable to any
extent whatever.
The invalidity of any one or more phrases, sentences, clauses or Sections in this Indenture
contained, shall not affect the remaining portions of this Indenture, or any part thereof.
Section 11.8. Notices. All notices, demands, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when mailed by registered or
certified mail, postage prepaid, with proper address as indicated below; however, notices to the
Trustee shall be deemed given upon receipt by the Trustee. The Issuer, the Company, and the
Trustee may, by written notice given by each to the others, designate any address or addresses to
which notices, demands, certificates or other communications to them shall be sent when
required as contemplated by this Indenture. Until otherwise provided by the respective parties,
all notices, demands, certificates and communications to each of them shall be addressed as
provided in Section 7.3 of the Financing Agreement.
Section 11.9. Counterparts. This Indenture may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument. The parties hereto agree that the transaction described herein may be conducted
and related documents may be stored by electronic means. Copies, telecopies, facsimiles,
electronic files and other reproductions of original executed documents shall be deemed to be
authentic and valid counterparts of such original documents for all purposes, including the filing
of any claim, action or suit in the appropriate court of law.
Section 11.10. Applicable Law. This Indenture shall be governed exclusively by the
applicable laws of the State of Indiana.
Section 11.11. Immunity of Officers and Directors. No recourse shall be had for the
payment of the principal of or premium or interest on any of the Bonds or for any claim based
thereon or upon any obligation, covenant or agreement in this Indenture contained against any
past, present or future members, officer, directors, agents, attorneys or employees of the Issuer,
or any incorporator, member, officer, director, agents, attorneys, employees or trustee of any
successor corporation, as such, either directly or through the Issuer or any successor corporation,
under any rule of law or equity, statute or constitution or by the enforcement of any assessment
or penalty or otherwise, and all such liability of any such incorporator, members, officers,
directors, agents, attorneys, employees or trustees as such is hereby expressly waived and
released as a condition of and consideration for the execution of this Indenture and issuance of
such Bonds.
Section 11.12. Holidays. If any date for the payment of principal or interest on the Bonds
is not a business day then such payment shall be due on the first business day thereafter.
(End of Article XI)
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S-1
IN WITNESS WHEREOF, the City of Carmel, Indiana, has caused these presents to be
signed in its name and behalf by its Mayor and its corporate seal to be hereunto affixed and
attested by its Clerk, and to evidence its acceptance of the trusts hereby created, [Trustee], in
Indianapolis, Indiana has caused these presents to be signed in its name and behalf by, its official
seal to be hereunto affixed, and the same to be attested by, its duly authorized officers, all as of
the day and year first above written.
CITY OF CARMEL, INDIANA
By:
Mayor
(SEAL)
Attest:
Clerk
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S-2
[TRUSTEE], as Trustee
By:
(Written Signature)
(Printed Signature)
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A-1
EXHIBIT A
DESCRIPTION OF THE PROJECTS
All or any portion of the design and construction of infrastructure improvements,
including but not limited to storm water improvements, utilities relocation, road improvements
and structured parking costs to support a mixed use project development in the Integrated 126th
Street Corridor Development Area consisting of office, hotel, multifamily and retail components,
together with a podium parking structure open to the public, all of which will be physically
located in, or directly serving or benefiting, the Proscenium III Allocation Area.
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B-1
DMS 43580438.1
EXHIBIT B
COSTS OF ISSUANCE
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