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EXHIBIT 10.18
CITY OF RIO RANCHO, NEW MEXICO
PROPERTY BOND PURCHASER, INC.
and
SUNWEST BANK OF ALBUQUERQUE, N.A., as Depositary
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INDENTURE
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Dated as of December 1, 1995
Securing
$3,950,000
City of Rio Rancho, New Mexico
Taxable Industrial Development Revenue Bond
(Fulcrum Properties, L.P. Project)
Series 1995
This instrument constitutes a security agreement with respect to certain
personal property, under the laws of the State of New Mexico.
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Table of Contents
ARTICLE I - RECITALS...........................................................1
Section 101. The Act.............................................1
Section 102. Government Proceedings..............................1
Section 103. The Agreement.......................................1
Section 104. The Indenture: Collateral Pledge....................1
Section 105. Conditions Precedent Performed......................1
ARTICLE II - DEFINITIONS AND RULES OF CONSTRUCTION.............................2
Section 201. Meanings of Words and Terms.........................2
Section 202. Rules of Construction...............................3
Section 203. Bond Not General Obligation of Issuer...............3
ARTICLE III - GRANT............................................................4
Section 301. Pledge..............................................4
Section 302. Release.............................................4
Section 303. Survival of Certain Provisions......................4
ARTICLE IV - AUTHORIZATION, FORM, EXECUTION AND DELIVERY OF BOND...............4
Section 401. Authorization; Authorized Amount of Bond. ..........4
Section 402. Form of Bond........................................5
Section 403. Execution and Delivery..............................5
Section 404. Advances............................................5
Section 405. Application of Payments.............................5
Section 406. Bond Registration...................................5
ARTICLE V - REDEMPTION.........................................................6
Section 501. Redemption..........................................6
ARTICLE VI - THE ACQUISITION ACCOUNT...........................................6
Section 602. Disbursements.......................................6
Section 603. Depositary May Rely on Requisitions.................7
Section 604. Status Reports......................................7
Section 605. Completion Date.....................................7
Section 606.. Payment on Acceleration.............................7
Section 607. Investments.........................................7
ARTICLE VII - PARTICULAR COVENANTS AND PROVISIONS..............................8
Section 701.. Payment of Bond; Bond a Limited Obligation..........8
Section 702. Obligations Under the Agreement.....................8
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ARTICLE VIII - DEFAULT AND REMEDIES............................................8
Section 801. Defaults............................................8
Section 802. Acceleration........................................8
Section 803. Issuer and Depositary Not Responsible...............9
Section 804. Certification of No Default.........................9
ARTICLE IX - THE DEPOSITARY....................................................9
Section 901. Acceptance of Duties................................9
Section 902. Compensation.......................................10
Section 903. Qualification......................................10
Section 904. Resignation and Removal............................10
Section 905.. Successor Depositary...............................10
ARTICLE X - SUPPLEMENTS AND AMENDMENTS TO INDENTURE...........................11
ARTICLE XI - MISCELLANEOUS PROVISIONS.........................................11
Section 1101. Notices............................................11
Section 1102. Remedies...........................................12
Section 1103. Beneficiaries......................................12
Section 1104. Severability.......................................12
Section 1105. Obligations of Issuer Not Obligations of
Officials Individually.............................13
Section 1106. Payments Due on Days That Are Not Business Days....13
Section 1107. Execution in Counterparts..........................13
Section 1108. Applicable Law.....................................13
Section 1109. Survival...........................................13
Exhibit A - Form of Bond
Exhibit B - Form of Requisition and Certificate
Exhibit C - Form of Completion Certificate
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CITY OF RIO RANCHO, NEW MEXICO, a municipal corporation existing under the
laws of the State of New Mexico (together with its successors and assigns, the
"Issuer"), PROPERTY BOND PURCHASER, INC., a New Mexico corporation (together
with its successors and assigns, and transferees of the Bond (defined below),
the "Purchaser"), and SUNWEST BANK OF ALBUQUERQUE, N.A., a national banking
association (together with its successors and assigns, the "Depositary"), agree:
ARTICLE I - RECITALS
Section 101. The Act. Pursuant to Sections 3-32-1 through 3-32-16, New
Mexico Statutes Annotated, 1978 Compilation, as amended (the "Act"), the Issuer
is authorized to acquire, construct and equip certain industrial or commercial
projects and to issue its industrial revenue bonds to finance such projects and
certain related costs. Such bonds are payable solely out of revenue of the
leasing of such projects. Such bonds may be further secured by an assignment of
the Issuer's interest in the lease agreements respecting the project to be
acquired, constructed and equipped. Under the Act, a project may include land,
buildings, machinery, equipment and other property deemed necessary in
connection with such project.
Section 102. Government Proceedings. Fulcrum Properties, L.P., a Delaware
limited partnership (together with its successors and assigns, the "Company"),
presented to the Issuer a proposal relating to the issuance of industrial
revenue bonds and the development of an administrative office and warehouse
facility. The Issuer, by City Council ("Council") Ordinance adopted on November
8, 1995 (the "Ordinance"), authorized, among other matters, (i) the issuance of
its City of Rio Rancho, New Mexico Taxable Industrial Development Revenue Bond
(Fulcrum Properties, L.P. Project) Series ▇▇▇▇ (▇▇▇ "▇▇▇▇") in the principal
amount not to exceed $3,950,000, and (ii) the execution and delivery of this
Indenture.
Section 103. The Agreement. The Issuer has entered into a Lease and
Purchase Agreement dated as of the date of this Indenture (together with any and
all amendments and supplements, the "Agreement") with the Company, under which
the Issuer has leased the Project Property (as defined in the Agreement) to the
Company and the Company has agreed to make rental payments in amounts sufficient
to pay the principal of, interest on and redemption price of the Bond when due.
For the purpose of providing security for the payment of the principal of,
interest on and redemption price of the Bond, the Issuer wishes to assign to the
Purchaser certain of its interests in the Agreement.
Section 104. The Indenture: Collateral Pledge. The Bond is to be issued
under this Indenture which constitutes a collateral pledge of the Agreement to
the Purchaser.
Section 105. Conditions Precedent Performed. All acts, conditions and
things required on the part of the Issuer by the Constitution and laws of the
State of New Mexico to happen, exist and be performed precedent to and in the
execution and delivery of this Indenture and the Agreement and the issuance of
the Bond have happened, exist and have been performed as so required in order to
make this Indenture, the Agreement and the Bond valid and binding
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agreements of the Issuer, enforceable against the Issuer in accordance with
their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general principles of equity.
ARTICLE II - DEFINITIONS AND RULES OF CONSTRUCTION
Section 201. Meanings of Words and Terms. All words and terms defined in
the Agreement have the same meanings when used in this Indenture. In addition:
"Acquisition Account" has the meaning assigned in Section 601.
"Act" has the meaning assigned in Section 101.
"Agreement" has the meaning assigned in Section 103.
"Authorized Company Representative" means any one of the persons at the
time designated to act on behalf of the Company in a certificate furnished to
the Issuer and the Depositary containing the specimen signatures of such persons
and signed on behalf of the Company by an officer of the Company.
"Bond" has the meaning assigned in Section 102.
"Bond Documents" means this Indenture, the Agreement and the Bond Purchase
Agreement.
"Bond Purchase Agreement" means the Bond Purchase Agreement dated the date
of the execution and delivery of this Indenture among the Purchaser, the Issuer
and the Company.
"Business Day" means any day that is not a Saturday or Sunday or a day on
which banking institutions in the State or in the city of payment are authorized
or required to close.
"Company" has the meaning assigned in Section 102.
"Default" has the meaning assigned in Section 801.
"Depositary" has the meaning assigned in the first paragraph of this
Indenture.
"Indenture" means this Indenture, together with any amendments and
supplements.
"Interest Payment Date" means each June 1 and December 1, beginning June 1,
1996.
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"Issuer" has the meaning assigned in the first paragraph of this Indenture.
"Ordinance" has the meaning assigned in Section 102.
"Parties" means the Issuer, the Company, the Purchaser and the Depositary.
"Party" means any one of the Parties.
"Payment of the Bond" means payment in full of the principal of and
interest on the Bond in accordance with its terms and the provisions of this
Indenture and payment of all fees and expenses of the Issuer and the Depositary
payable by the Company under this Indenture, the Agreement or the Bond Purchase
Agreement.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision.
"State" means the State of New Mexico.
"Related Costs" means expenditures incurred or to be incurred with respect
to the Project, including, without limitation, the acquisition of the Project
Site and the Project Property and the payment of principal of and interest on
any loan the proceeds of which are used to acquire the Project Site and/or the
Project Property.
"Revenues" means all payments to be made by the Company pursuant to the
Agreement and all other amounts to be received by the Issuer or the Depositary
in respect of the administrative office and warehouse facility project,
including all amounts and investments in the funds and accounts created
hereunder and all income and profits thereon.
Section 202. Rules of Construction.
(a) The captions and headings in this Indenture are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or
sections of this Indenture.
(b) All references in this Indenture to particular articles, sections or
exhibits are references to articles or sections of or exhibits to this Indenture
unless some other reference is established.
(c) Any inconsistency between the provisions of the Agreement and the
provisions of this Indenture will be resolved in favor of the provisions of this
Indenture.
Section 203. Bond Not General Obligation of Issuer. Neither the faith and credit
nor the taxing power of the State or of any of its political subdivisions,
including the Issuer, is pledged to the
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payment of the principal of, interest on or redemption price of the Bond. The
Bond will be payable solely out of the Revenues, proceeds and receipts and other
security pledged hereby. The principal of, interest on and redemption price of
the Bond will never constitute a debt or indebtedness or general obligation of
the Issuer within the meaning of any State constitutional provision or statutory
limitation. The Bond will never constitute or give rise to a pecuniary liability
of the Issuer or be a charge against its general credit or a charge against the
general credit or the taxing powers of the State or any political subdivision
thereof.
ARTICLE III - GRANT
Section 301. Pledge. In consideration of the purchase of the Bond by the
Purchaser, and in order to secure the payment of the principal of, interest on
and redemption price of the Bond, and in order to secure the performance by the
Issuer of its obligations under this Indenture and the Bond, the Issuer pledges
and assigns to the Purchaser and grants a security interest to the Purchaser in
(i) all the Issuer's right, title and interest in and to the Agreement,
including its rights to the Revenues, but reserving its rights under Sections
4.6, 4.14, 4.15, 5.7, 5.8, 5.9 and 5.11 of the Agreement including but not
limited to the right to reimbursement for certain costs and expenses, to receive
or designate the recipient of any payment in lieu of taxes pursuant to Section
5.11 of the Agreement, to receive notices, to give consents and to be
indemnified; and (ii) the moneys and investments in the Acquisition Account.
Section 302. Release. If the principal of and interest on the Bond is paid
in full to the Purchaser, all obligations of the Issuer under this Indenture
will terminate, and the Purchaser will discharge this Indenture and execute and
deliver to the Issuer and the Company such instruments in writing as may be
required to evidence such discharge. The Clerk of the Issuer is authorized to
accept the certificate of the Purchaser that all principal and interest due on
the Bond has been paid as evidence of the satisfaction of this Indenture.
Section 303. Survival of Certain Provisions. Notwithstanding the foregoing,
any provisions of this Indenture and any related legislation which relate to the
maturity of the Bond, interest payments and dates thereof, exchange, transfer
and registration of the Bond, replacement of the mutilated, destroyed, lost or
stolen Bond, nonpresentment of the Bond, the holding of moneys in trust, and
repayments to the Company from the various funds established pursuant to this
Indenture and the duties of the Depositary in connection with all of the
foregoing, will remain in effect and be binding upon the Depositary and the
Purchaser notwithstanding the release and discharge of this Indenture. The
provisions of this Section will survive the release, discharge and subordination
of this Indenture.
ARTICLE IV - AUTHORIZATION, FORM, EXECUTION AND DELIVERY OF BOND
Section 401. Authorization; Authorized Amount of Bond. The Bond is hereby
authorized to be issued under this Indenture and secured by this Indenture. The
Bond will be issued as a single fully registered bond without coupons, in the
denomination of $3,950,000. The Bond will be numbered R-1. No bonds may be
issued under this Indenture except in accordance
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with this Article. The total principal amount of the Bond that may be issued
under this Indenture is expressly limited to $3,950,000. No additional bonds may
be issued. The Bond may be transferred in accordance with its terms.
Section 402. Form of Bond. The Bond will be in substantially the form of
Exhibit A. The Bond will be dated the date of the execution and delivery of this
Indenture and will bear interest on advances made pursuant to Section 404 from
the respective dates of such advances at 8% per annum on the aggregate unpaid
principal amount of such advances. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months. Accrued interest will be paid
on each Interest Payment Date. The Bond will mature on December 1, 2020.
Section 403. Execution and Delivery. The Bond will be signed by the Mayor,
City Administrator or City Treasurer/ Director of Finance of the Issuer and
delivered to the Purchaser on the date of the execution and delivery of this
Indenture.
Section 404. Advances. Subject to the terms and conditions of the Bond
Purchase Agreement, the Purchaser will purchase the Bond upon the execution and
delivery of the Indenture and will pay the purchase price of the Bond as set
forth in Section 2 of the Bond Purchase Agreement through the advances described
in this Section 404. The Company will request advances by notice to the
Purchaser and the Depositary. Promptly upon receipt of notice from the Company
requesting an advance, the Purchaser will, so long as no Default has occurred
and is continuing, pay the amount of the advance requested in such notice to the
Depositary for deposit in the Acquisition Account; provided that the aggregate
amount of such advances will not exceed $3,950,000. The records of the
Depositary will be conclusive as to the aggregate amount of advances requested
and made, absent manifest error. The Purchaser is authorized to endorse on the
schedule attached to the Bond the date and amount of each such advance and each
principal payment on and redemption in part of the Bond and the resulting
principal amount. Failure to make any such endorsement or any error in such
endorsement will not affect the rights or obligations of any of the Parties on
or with respect to the Bond.
Section 405. Application of Payments. Payments received by the Purchaser
with respect to the redemption of all or any portion of the Bond will be applied
first to the principal amount to be redeemed and then to accrued interest on
such principal amount. All other payments received by the Purchaser with respect
to the Bond will be applied first to accrued interest on and then to the unpaid
principal of the Bond. If such payments exceed accrued interest on and the
unpaid principal of the Bond, the Purchaser will pay such excess to the Company.
Section 406. Bond Registration. The Company will maintain a registration
book showing the name and address of the holder of the Bond. Upon the Company's
receipt of notice of the transfer of the Bond in accordance with its terms, the
Company will cause the registration book to reflect the name and address of the
transferee, unless a trustee for bondholders is appointed as provided in this
Indenture, in which event such trustee shall maintain such registration book.
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ARTICLE V - REDEMPTION
Section 501. Redemption. If the Company gives notice to the Issuer, the
Depositary and the Purchaser pursuant to Article VIII of the Agreement that the
Company has elected to cause redemption of the Bond in full or in part, all or
such portion of the Bond will be deemed redeemed by the Issuer on the date
indicated in such notice at a redemption price equal to the principal amount to
be redeemed plus accrued interest on such principal amount to the redemption
date.
ARTICLE VI - THE ACQUISITION ACCOUNT
Section 601. Creation; Deposits. A special account is hereby created with
the Depositary and designated "Fulcrum Properties, L.P. Project Acquisition
Account" (the "Acquisition Account"). Any moneys received by the Issuer or the
Depositary on account of any advances under Section 404 will be deposited in the
Acquisition Account. The moneys in the Acquisition Account will be held by the
Depositary and will, subject to the provisions of Sections 605 and 606, be
applied to the payment of Related Costs and, pending such application, will be
subject to a lien in favor of the Purchaser.
Section 602. Disbursements. The Depositary will make payments of Related
Costs from the Acquisition Account, but only upon receipt of a requisition and
certificate in the form of Exhibit B, signed by an Authorized Company
Representative, stating to whom the payment is to be made, the general purpose
for which the obligation to be paid was incurred, and that:
(1) obligations in the stated amounts were incurred for Related Costs
and are due and payable (or, if the Company is indicated as the payee, were duly
paid by the Company) and that each item is a proper charge against the
Acquisition Account and has not been the subject of a previous withdrawal from
the Acquisition Account;
(2) to the best knowledge of such Authorized Company Representative
there has not been filed with or served upon the Issuer or the Company notice of
any lien, right or attachment upon, or claim affecting the right of any such
Persons to receive payment of, the respective amounts stated in such requisition
which has not been released or will not be released simultaneously with the
payment of such obligation; and
(3) with respect to any item for payment for labor or to contractors,
builders or materialmen, (i) the obligations stated have been properly incurred,
(ii) to the best knowledge of such Authorized Company Representative, such work
was actually performed or such materials or supplies were actually furnished or
installed in or about the Project, and (iii) to the best knowledge of such
Authorized Company Representative, either such materials or supplies are not
subject to any lien or security interest or any such lien or security interest
will be released or discharged upon payment of the requisition.
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Section 603. Depositary May Rely on Requisitions. All requisitions and
certificates received by the Depositary as conditions of payment from the
Acquisition Account may be conclusively relied upon by the Depositary and will
be retained by the Depositary, subject at all reasonable times to examination by
the Issuer and other Parties and their respective agents and representatives.
Section 604. Status Reports. On a quarterly basis, the Depositary will make
a written report covering all receipts and moneys then on deposit in the
Acquisition Account, any investments of such moneys and all transfers and
disbursements of such moneys as at and for the quarterly periods ending March
31, June 30, September 30 and December 31 of each year. The Depositary will make
such reports monthly, at no additional cost, if the Company requests. The
Depository will provide copies of such quarterly and/or monthly reports to the
Issuer upon the Issuer's written request.
Section 605. Completion Date. Upon receipt of a certificate from the
Company, in the form of Exhibit C signed by an Authorized Company
Representative, establishing the Completion Date, the Depositary will, to the
extent moneys are available therefor, set aside the moneys necessary for the
payment of the Related Costs incurred by the Company but not then due or payable
as set forth in such certificate and then will transfer any moneys remaining in
the Acquisition Account to the Company for use in connection with the Project or
for payment of debt service on the Bond (but the Depositary and the Issuer shall
have no duty to inquire into or otherwise monitor the Company's use of such
moneys).
Section 606. Payment on Acceleration. If the Purchaser declares the unpaid
principal of and accrued interest on the Bond to be immediately due and payable
pursuant to Section 802, the Depositary will promptly pay all moneys then held
for the credit of the Acquisition Account to the Purchaser for application to
the unpaid principal of and accrued interest on the Bond.
Section 607. Investments. Moneys on deposit in the Acquisition Account
will, at the written direction of an Authorized Company Representative, be
invested and reinvested by the Depositary in short-term interest-bearing
securities or funds. Such investments will be deemed at all times to be a part
of the Acquisition Account. Any interest accruing on any such investment and any
profit realized from such investment will be credited to the Acquisition
Account. Any loss resulting from any such investment will be charged to the
Acquisition Account. The Depositary will sell at the best price obtainable or
present for redemption any such investment when necessary in order to provide
cash to meet any payment or transfer from the Acquisition Account. Neither the
Depositary nor the Issuer will be liable or responsible for any loss resulting
from any such investment. The Depositary may make any such investment through
its own or its affiliated bond or investment department, unless otherwise
directed in writing by an Authorized Company Representative.
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ARTICLE VII - PARTICULAR COVENANTS AND PROVISIONS
Section 701. Payment of Bond; Bond a Limited Obligation. Pursuant to the
Agreement, the Issuer has caused the Company to pay the principal of, interest
on and redemption price of the Bond in the manner provided in this Indenture and
in the Bond. Except as otherwise provided in this Indenture, such principal,
interest and redemption price are payable solely from the Basic Rent, which the
Company will pay as provided in the Lease. NEITHER THE FAITH AND CREDIT -NOR-THE
TAXING POWER OF THE STATE OR OF ANY OF ITS-POLITICAL SUBDIVISIONS, INCLUDING THE
ISSUER, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, INTEREST ON OR REDEMPTION
PRICE OF THE BOND. THE PRINCIPAL OF, INTEREST ON AND REDEMPTION PRICE OF THE
BOND WILL NEVER CONSTITUTE A DEBT OR INDEBTEDNESS OF THE ISSUER WITHIN THE
MEANING OF ANY PROVISION OR LIMITATION OF THE CONSTITUTION OR LAWS OF THE STATE
OR THE HOME RULE CHARTER OF THE ISSUER. THE BOND WILL NEVER CONSTITUTE NOR GIVE
RISE TO A PECUNIARY LIABILITY OF THE STATE, ANY OF ITS POLITICAL SUBDIVISIONS OR
OF THE ISSUER OR A CHARGE AGAINST THEIR GENERAL CREDIT OR TAXING POWERS.
Section 702. Obligations Under the Agreement. The Issuer: (i) will perform
all of its obligations under the Agreement; (ii) will not execute or agree to
any change, amendment or modification of or supplement to the Agreement except
by a supplement or an amendment duly executed by the Issuer and the Company with
the approval of the Purchaser; and (iii) will not agree to any abatement,
reduction or diminution of the Basic Rent without the approval of the Purchaser.
ARTICLE VIII - DEFAULT AND REMEDIES
Section 801. Defaults. Each of the following events is a "Default":
(a) Payment of any installment of principal of, interest on or
redemption price of the Bond is not made within five days of the date when due.
(b) An Event of Default occurs and is continuing.
(c) The Issuer fails to perform any other of its obligations under the
Bond or this Indenture for a period of 30 days after receipt of notice of such
failure from any of the Parties.
Section 802. Acceleration. If a Default has occurred and is continuing,
the Purchaser may by notice to the other Parties declare the then unpaid
principal of and all accrued interest on the Bond to be immediately due and
payable. Upon such declaration the same will be immediately due and payable by
the Company; provided, however, that the Purchaser, by written notice to the
other parties, may annul such declaration and destroy its effects and waive any
such
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default if all reasonable charges and expenses of the Issuer and the Depositary
and their agents and counsel shall have been paid or provided for.
Section 803. Issuer and Depositary Not Responsible. Neither the Issuer nor
the Depositary has any responsibility to act on behalf of the Purchaser with
respect to any Default. All rights and remedies arising from or related to any
Default are the rights and remedies of the Purchaser, provided that, upon
request of the Purchaser, the Issuer, if legally required, will cooperate with
the Purchaser in the lawful enforcement of such rights and remedies upon receipt
of indemnity satisfactory to the Issuer in the Issuer's sole discretion against
any out-of-pocket cost, expense (including any reasonable counsel fees and
expenses) or liability the Issuer may incur or suffer as a result of or in
connection with such cooperation, subject to the provisions concerning the
appointment of a trustee set forth in Article X.
Section 804. Certification of No Default. On or before December 1 of each
year in which the Bond is outstanding, beginning December 1, 1996, the Company
and the Purchaser will deliver a certificate to the Issuer stating that they are
aware of no Default or Event of Default or, if they are so aware, describing the
circumstances of such Default or Event of Default.
ARTICLE IX - THE DEPOSITARY
Section 901. Acceptance of Duties. The Depositary accepts the duties
imposed on it by this Indenture, but only on the following express terms and
conditions:
(a) The Depositary undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied covenants
or obligations will be read into this Indenture against the Depositary.
(b) In the absence of negligence or willful misconduct on its part,
the Depositary may conclusively rely on certificates or notices furnished to the
Depositary and conforming on their faces to the requirements of this Indenture
or the Agreement, as the case may be; but if any such certificates or notices
are specifically required to be furnished to the Depositary under this Indenture
or the Agreement, the Depositary will examine the same to determine whether they
conform on their faces to the requirements of this Indenture or the Agreement,
as the case may be.
(c) No provision of this Indenture will be construed to relieve the
Depositary from liability for its own negligence or willful misconduct.
(d) The Depositary may consult with counsel and other professionals
and the advice of such counsel and other professionals shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by the Depositary hereunder in good faith and in reliance thereon.
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(e) The Depositary shall be under no obligation to take any action or
exercise any right or power under this Indenture unless the Purchaser shall
first have provided to the Depositary, its directors, officers, agents and
employees, security or indemnity satisfactory to the Depositary against the
costs (including without limitation reasonable fees of attorneys), expenses and
liabilities that might be incurred by the Depositary in connection therewith.
Section 902. Compensation. The Company will pay to the Depositary its
reasonable fees and charges and all of its reasonable expenses (including
reasonable counsel fees and expenses) as Additional Payments in accordance with
the Agreement.
Section 903. Qualification. The Depositary must be an association or a
corporation organized and doing business under the laws of the United States of
America or of any state, be granted trust powers under such laws and be subject
to supervision or examination by federal or state banking authorities. If at any
time the Depositary ceases to be eligible in accordance with the provisions of
this Section 903, it will resign immediately in the manner and with the effect
specified in Section 904.
Section 904. Resignation and Removal.
(a) No resignation or removal of the Depositary and no appointment of
a successor Depositary will become effective until the acceptance of appointment
by the successor Depositary under Section 905.
(b) The Depositary may resign at any time by notice to the other
Parties. If an instrument of acceptance by a successor Depositary has not been
delivered to the retiring Depositary within 30 days after the giving of such
notice of resignation, the retiring Depositary may petition any court of
competent jurisdiction for the appointment of a successor Depositary.
(c) The Depositary may be removed at any time by the Company by notice
to the other Parties.
(d) The Depositary will be automatically removed on the occurrence of
the Completion Date and the application of all moneys on deposit in the
Acquisition Account as provided in Section 605. No successor Depositary will
thereafter be appointed and each reference to the Depositary in this Indenture
and the Agreement will thereafter be ineffective.
(e) If the Depositary resigns or is removed (except as provided in
subsection (d) of this Section 904), the Company will promptly appoint a
successor Depositary and give written notice of such appointment to the Issuer,
the Purchaser and the retiring or removed Depositary.
Section 905. Successor Depositary.
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(a) Every successor Depositary appointed under this Indenture will
execute, acknowledge and deliver to its predecessor, and the other Parties an
instrument accepting such appointment, and thereupon such successor Depositary,
without any further act, will become fully vested with all the rights, and
subject to all the obligations, of its predecessor; but such predecessor will,
nevertheless, on the request of its successor, the Issuer, the Company or the
Purchaser execute and deliver an instrument transferring to such successor
Depositary all the rights of such predecessor under this Indenture. Every
predecessor will deliver all property and moneys held by it under this Indenture
to its successor. The Issuer and the Purchaser will execute, acknowledge and
deliver any instrument reasonably required by any successor Depositary to more
fully and certainly vest in such Depositary the rights vested in the predecessor
Depositary by this Indenture.
(b) Notwithstanding any of the foregoing provisions of this Article,
any Person qualified to act as Depositary under this Indenture with or into
which the Person acting as Depositary may be merged or consolidated, or to which
the assets and business of such Person may be sold, will automatically become
the successor Depositary.
ARTICLE X - SUPPLEMENTS AND AMENDMENTS TO INDENTURE
This Indenture may be supplemented or amended only by one or more
instruments executed by the Issuer, the Purchaser and the Depositary and
consented to by the Company. The Depositary will execute any such proposed
supplement or amendment on the request of the Purchaser unless the Depositary
determines in good faith that its rights or obligations under this Indenture
would be materially and adversely affected by such supplement or amendment. If
the rights or obligations of the Depositary would be materially and adversely
affected by such supplement or amendment, as determined in good faith by the
Depositary, the Depositary will have no liability for its refusal to enter into
such supplement or amendment. Notwithstanding the generality of the foregoing,
if the Purchaser gives notice to the Issuer, the Depositary and the Company of
the Purchaser's desire to have a trustee appointed for the benefit of the
Purchaser, the Parties will cooperate in amending this Indenture to facilitate
such appointment. Nothing herein is intended to require the Issuer to act in a
fiduciary capacity and if the original Purchaser transfers the Bond and if
circumstances arise which would so require, the Issuer has the right to request
that a trustee be appointed by and at the expense of the Company and the Parties
n amending this Indenture to facilitate the making of such appointment.
ARTICLE XI - MISCELLANEOUS PROVISIONS
Section 1101. Notices. Any notice, demand, direction, request, consent,
report or other instrument authorized or required by any of the Bond Documents
to be executed, given or filed will be in writing and will be deemed to have
been sufficiently given or filed for all purposes of the Bond Documents when
delivered by hand delivery or on the third Business Day following the day on
which the same has been mailed -by registered or certified mail, postage
prepaid, addressed as follows:
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If to the Issuer: City of Rio Rancho
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: City Administrator
If to the Purchaser: Property Bond Purchaser, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Company: Fulcrum Properties, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Depositary: Sunwest Bank of Albuquerque, N.A.
Corporate Trust Department
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ 87102
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Vice President -
Trust Officer
Any Party may, by notice to each of the other Parties, designate any further or
different addresses to which subsequent notices, certificates or other
communications are to be sent.
Section 1102. Remedies. No right or remedy conferred on any Party in any of
the Bond Documents is intended to be exclusive of any other right or remedy.
Each such right or remedy is in addition to every other right or remedy provided
in any of the Bond Documents or by law. No delay or omission of any Party to
exercise any such right or remedy will impair any such right or remedy or be
construed to be a waiver. Every such right or remedy may be exercised from time
to time and as often as the relevant Party may deem expedient. No waiver by any
Party of any right or remedy with respect to any Default or Event of Default
will extend to or affect any other existing or subsequent Default or Event of
Default.
Section 1103. Beneficiaries. Nothing in any of the Bond Documents expressed
or implied is intended or is to be construed to confer upon any Person other
than the Parties (and, in the case of Section 5.8 of the Agreement only, the
Indemnities) any right, remedy or claim, legal or equitable.
Section 1104. Severability. In case any one or more of the provisions of
any of the Bond Documents or of the Bond is for any reason held to be illegal or
invalid, such illegality or invalidity will not affect any other provision of
any of the Bond Documents or of the Bond, but the Bond Documents and the Bond
will be construed and enforced as if such illegal or invalid provision had not
been contained therein. In case any covenant, stipulation, obligation or
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agreement of the Issuer contained in any of the Bond Documents or the Bond is
for any reason held to be in violation of law, then such covenant, stipulation,
obligation or agreement will be deemed to be the covenant, stipulation,
obligation or agreement of the Issuer to the full extent permitted by law.
Section 1105. Obligations of Issuer Not Obligations of Officials
Individually. All obligations of the Issuer under the Bond Documents and the
Bond will be deemed to be obligations of the Issuer to the full extent permitted
by the Constitution and laws of the State. No obligation under any of the Bond
Documents or the Bond will be deemed to be an obligation of any present or
future officer (including, without limitation, City Councilors) or employee of
the Issuer in his or her individual capacity, and no officer of the Issuer who
executes the Bond will be personally liable on the Bond or be subject to any
personal liability or accountability by reason of the issuance of the Bond.
Section 1106. Payments Due on Days That Are Not Business Days. If the date
for any payment called for under any of the Bond Documents or the Bond is not a
Business Day, then such payment will be made on the next Business Day and no
interest on such payment will accrue for the period after such date.
Section 1107. Execution in Counterparts. Each of the Bond Documents may be
executed in multiple counterparts, all of which taken together will constitute
one instrument. Any Party may execute any of the Bond Documents by executing any
such counterpart of such Bond Document.
Section 1108. Applicable Law. The validity, construction and effect of each
of the Bond Documents will be governed by the law of the State applicable to
agreements made and to be performed in the State.
Section 1109. Survival. The provisions of Sections 901 and 902 of this
Indenture shall survive payment of the Bond and expiration or earlier
termination of this Indenture.
Section 1110. No Violation of Public Policies Regarding Indemnity. If a
court of competent jurisdiction determines that the provisions of Section 56-7-1
▇▇▇▇ ▇▇▇▇, as amended, are applicable to this Agreement or any claim arising
under this Agreement, then any agreement to indemnify in connection with this
Agreement will not extend to liability, claims, damages, losses or expenses,
including attorney fees, arising out of:
(a) The preparation or approval of maps, drawings, opinions, reports,
surveys, change orders, designs or specifications by the indemnitee, or the
agents or employees of the indemnitee; or
(b) The giving of or the failure to give directions or instructions by
the indemnitee, or the agents or employees of the indemnitee, where such giving
or failure to give directions or instructions is the primary cause of bodily
injury to persons or damage to property.
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Section 1111. Non-Merger. The provisions of this Indenture shall survive
the conveyance of the Project to the Issuer, the reconveyance of the Project to
the Company, and all other performances hereunder, and shall not be deemed
merged in any deed or other instrument or document delivered hereunder.
Section 1112. Limitation of Liability of Officials of Issuer. No covenant,
agreement or obligation contained herein shall be deemed to be a covenant,
agreement or obligation of any present or future official, officer, employee,
agent or member of the Council of the Issuer in his individual capacity, and
neither the officials of the Issuer nor any officer thereof executing the Bond
shall be liable personally on the Bond or be subject to any personal liability
or accountability by reason of the issuance thereof. No official, officer,
employee, agent or member of the Council of the Issuer shall incur any personal
liability with respect to any other action taken by him pursuant to this
Indenture or the Act.
DATED AS OF December 1, 1995.
CITY OF RIO RANCHO, NEW MEXICO
By: __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Mayor
PROPERTY BOND PURCHASER, INC.
By: __________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
SUNWEST BANK OF ALBUQUERQUE, N.A.
By: __________________________________
Its _____________________________
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STATE OF NEW MEXICO
COUNTY OF ▇▇▇▇▇▇▇▇
This instrument was acknowledged before me on December 27, 1995 by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Mayor of the City of Rio Rancho, New Mexico, a New Mexico
municipal corporation.
-----------------------------------
Notary Public
My commission expires:
--------------------------
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
This instrument was acknowledged before me on December 27, 1995 by
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as President of Property Bond Purchaser, Inc., a New Mexico
corporation.
-----------------------------------
Notary Public
My commission expires:
--------------------------
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STATE OF NEW MEXICO
COUNTY OF BERNALILLO
This instrument was acknowledged before me on December 28, 1995 by
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ as Vice President & Trust Officer of Sunwest Bank of Albuquerque,
N.A., a national banking association.
-----------------------------------
Notary Public
My commission expires:
--------------------------
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EXHIBIT A
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR BY ANY STATE SECURITIES LAW AND
IS TRANSFERABLE ONLY UPON COMPLIANCE WITH THE RESTRICTIVE TERMS
PROVIDED BELOW AND IN THE INDENTURE REFERRED TO BELOW.
No. R-1 Up to $3,950,000
United States of America
State of New Mexico
City of Rio Rancho, New Mexico
Taxable Industrial Development Revenue Bond
(Fulcrum Properties, L.P. Project)
Series 1995
MATURITY DATE INTEREST RATE ISSUE DATE
December 1, 2020 8% per annum December _, 1995
CITY OF RIO RANCHO, NEW MEXICO, a municipal corporation existing under the
Constitution and laws of the State of New Mexico (the "Issuer"), for value
received, promises to pay, solely from the source described below, to Property
Bond Purchaser, Inc. (together with its successors and assigns, and transferees
as permitted below, the "Purchaser"), on the Maturity Date, Three Million Nine
Hundred Fifty Thousand Dollars (subject to prior optional or mandatory
redemption as described below) or so much of such amount as has been advanced by
the Purchaser and is outstanding and to pay, solely from such source, to the
Purchaser under the Indenture at the close of business on the day 15 days before
the relevant payment date, interest on principal amounts advanced with respect
to this Bond from the dates of such advances at the Interest Rate specified
above (computed on the basis of a 360-day year consisting of twelve 30- day
months) until payment of such principal amount. Such interest is payable
semiannually on June 1 and December 1 in each year, beginning June 1, 1996.
This Bond is issued under and pursuant to the Constitution and laws of
the State of New Mexico, particularly Sections 3-32-1 to 3-32-16 ▇▇▇▇ ▇▇▇▇, as
amended, and under the home rule powers of the Issuer and pursuant to an
ordinance duly adopted by the Issuer.
The principal of, interest on and redemption price of this Bond are
payable solely from revenues derived by the Issuer from the Lease and Purchase
Agreement dated as of December 1, 1995 (the "Agreement") between the Issuer and
Fulcrum Properties, L.P. (the "Company"), which Agreement relates to an
administrative office and warehouse facility in Rio Rancho, New Mexico and which
revenues have been pledged and assigned by the Issuer to the Purchaser under the
Indenture dated as of December 1, 1995 (together with any amendments and
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supplements, the "Indenture 't) among the Issuer, the Purchaser and Sunwest Bank
of Albuquerque, N.A., as Depositary (the "Depositary").
Reference is made to the Indenture, the Agreement, and the Bond
Purchase Agreement (as defined in the Indenture) for the provisions, among
others, with respect to the custody and application of the proceeds of the sale
of this Bond, the collection and disposition of income and other revenues,
restrictions on transfer of this Bond, a description of the account charged with
and pledged to the payment of the principal of, interest on and redemption price
of this Bond, the nature and extent of the security, the terms and conditions
under which this Bond is issued and amounts are to be advanced with respect to
this Bond by the Purchaser, and the rights, duties and obligations of the
Issuer, the Company, the Purchaser and the Depositary. By accepting this Bond,
the holder accepts and undertakes to perform all of the obligations of the
Purchaser.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF NEW
MEXICO OR OF ANY OF ITS POLITICAL SUBDIVISIONS, INCLUDING THE ISSUER, IS PLEDGED
TO THE PAYMENT OF THE PRINCIPAL OF, INTEREST ON OR REDEMPTION PRICE OF THIS
BOND. THE PRINCIPAL OF, INTEREST ON AND REDEMPTION PRICE OF THIS BOND WILL NEVER
CONSTITUTE A DEBT OR INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY
PROVISION OR LIMITATION OF THE CONSTITUTION OR LAWS OF THE STATE OF NEW MEXICO
OR THE HOME RULE CHARTER OF THE ISSUER. THIS BOND WILL NEVER CONSTITUTE NOR GIVE
RISE TO A PECUNIARY LIABILITY OF THE STATE OF NEW MEXICO, ANY OF ITS POLITICAL
SUBDIVISIONS OR OF THE ISSUER OR A CHARGE AGAINST THEIR GENERAL CREDIT OR TAXING
POWERS.
This Bond may be called for redemption, as provided in the Indenture,
at the option of the Company as a whole or in part on any date selected by the
Company, at a redemption price equal to the principal amount to be redeemed plus
interest accrued on such principal amount to the redemption date.
If a Default (as defined in the Indenture) occurs, the Purchaser may
cause the then unpaid principal amount of this Bond and all accrued interest to
be immediately due and payable as provided in the Indenture. Neither the Issuer
nor the Depositary has any responsibility to act on behalf of the Purchaser with
respect to any Default.
The Purchaser is authorized to endorse on the schedule attached to this
Bond the date and amount of each advance by the Purchaser pursuant to Section
404 of the Indenture and each principal payment on and redemption in part of
this Bond and the resulting principal amount. Failure-to make any such
endorsement or any error in such endorsement will not affect the rights or
obligations of the Issuer or the Purchaser.
This Bond may be transferred in whole but not in part. Upon any such
transfer, the transferee will give notice of the transfer and of the
transferee's address for notices and for
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payment of principal of and interest on this Bond to the Issuer, the Company and
the Depositary in the manner provided in the Indenture.
All acts, conditions and things required to happen, exist and be
performed precedent to and in the issuance of this Bond and the execution of the
Indenture have happened, exist and have been performed as so required.
The validity, construction and performance of this Bond are governed by
the law of New Mexico applicable to agreements made and to be performed in New
Mexico.
CITY OF RIO RANCHO, NEW MEXICO
By __________________________________
Its Mayor
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Amount of
Principal Resulting
Amount of Payment or Principal Notation
Date Advance Redemption Amount Made By
---- ------- ---------- ------ -------
4
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EXHIBIT B
REQUISITION AND CERTIFICATE
To: Sunwest Bank of Albuquerque, N.A., as Depositary
The undersigned, pursuant to the Indenture dated as of December 1, 1995
(the "Indenture"), among the City of Rio Rancho, New Mexico (the "Issuer"),
Property Bond Purchaser, Inc., and Sunwest Bank of Albuquerque, N.A., as
Depositary, requests on behalf of Fulcrum Properties, L.P. (the "Company") the
disbursement of $______ from the Acquisition Account (as defined by reference in
the Indenture) to pay the following costs and expenses related to the Project
(as defined in the Indenture) or to the issuance of the Bond (as defined in the
Indenture):
General
Classification
Amount of Expenditure Payee
------ -------------- -----
$
Total: $
The undersigned certifies that:
(1) obligations in the stated amounts were incurred for Related
Costs (as defined in the Indenture) and are due and payable (or, if the Company
is indicated as the payee, were duly paid by the Company) and that each item is
a proper charge against the Acquisition Account and has not been the subject of
a previous withdrawal from the Acquisition Account;
(2) to the best knowledge of the undersigned there has not been
filed with or served upon the Issuer or the Company notice of any lien, right or
attachment upon, or claim affecting the right of any such payee to receive
payment of, the respective amounts stated in such requisition which has not been
released or will not be released simultaneously with the payment of such
obligation; and
(3) with respect to any item for payment for labor or to
contractors, builders or materialmen, (i) the obligations stated have been
properly incurred, (ii) to the best knowledge of the undersigned, such work was
actually performed or such materials or supplies were actually furnished or
installed in or about the Project, and (iii) to the best knowledge of the
undersigned, either such materials or supplies are not subject to any lien or
security interest or any-such lien or security - interest will be released or
discharged upon payment of this requisition.
DATED: ____________________________________
25
__________________________________
Authorized Company
Representative
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EXHIBIT C
COMPLETION CERTIFICATE
The undersigned Authorized Company Representative, pursuant to
Section 605 of the Indenture dated as of December l, 1995 (the "Indenture"),
among the City of Rio Rancho, New Mexico (the "Issuer"), Property Bond
Purchaser, Inc. and Sunwest Bank of Albuquerque, N.A., as Depositary, states
that, except for specified amounts remaining in the Acquisition Account for any
Related Costs shown below incurred by the Company but not now due and payable,
the Project is complete and all costs of labor, services materials and supplies
in connection with the Project have been paid for or provisions have been made
for their payment. After the transfer of remaining moneys in the Acquisition
Account to the Company pursuant to Section 605 of the Indenture, the Company
will have sole responsibility for the payment of any Related Cost in excess of
the amount specified to be retained in the Acquisition Account.
Related Costs Not Yet due and Payable
Amount For
$__________ ____________________________________
____________________________________
$__________ ____________________________________
____________________________________
$__________ ____________________________________
____________________________________
DATED: __________________________________
____________________________________
Authorized Company Representative
3