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HomeMy WebLinkAboutFinancing Agreement Between Carmel Lofts LLC/City c zrs IDisuzicr ADD K S I-}opPEs FINANCING AGREEMENT BETWEEN CARMEL LOFTS LLC Imo.. AND c) —4 CITY OF CARMEL,INDIANA -0 Dated as of July 1,2011 4:) a- Certain of the rights of the Issuer hereunder have been assigned to Regions Bank, as trustee under a Trust Indenture dated as of the date hereof,from the Issuer. TABLE OF CONTENTS ARTICLE I DEFINITIONS AND EXHIBITS 3 Section 1.1. Terms Defined 3 Section 1.2.Rules of Interpretation 4 ARTICLE II REPRESENTATIONS; USE OF BOND PROCEEDS 6 Section 2.1.Representations by Issuer 6 Section 2.2.Representations by Company. 6 ARTICLE III PARTICULAR COVENANTS OF THE ISSUER AND COMPANY 8 Section 3.1. Consent to Assignments to Trustee 8 i 1 Section 3.2.Payment of Principal and Interest 8 Section 3.3. Maintenance of Existence 8 Section 3.4. Company Duties Under Indenture 9 Section 3.5. Indemnity 9 Section 3.6.Payment of Expenses of Issuance of Bonds 10 Section 3.7. Completion and Use of Projects 10 Section 3.8. Other Amounts Payable by the Company 10 ARTICLE IV [RESERVED] 12 ARTICLE V [RESERVED] 13 ARTICLE VI EVENTS OF DEFAULT AND REMEDIES THEREFOR 14 Section 6.1. Events of Default 14 Section 6.2. Remedies Cumulative 14 Section 6.3. Delay or Omission Not a Waiver 14 ARTICLE VII IMMUNITY 16 Section 7.1. Extent of Covenants of the Issuer;No Personal Liability 16 i • Section 7.2. Liability of Issuer 16 ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING AGREEMENT 17 Section 8.1. Supplements and Amendments to this Financing Agreement 17 ARTICLE IX MISCELLANEOUS PROVISIONS 18 Section 9.1. Financing Agreement for Benefit of Parties Hereto 18 Section 9.2. Severability 1.8 Section 9.3. Addresses for Notice and Demands 18 Section 9.4. Successors and Assigns 18 Section 9.5. Counterparts 19 Section 9.6. Governing Law 19 ii • FINANCING AGREEMENT This FINANCING AGREEMENT, dated as of July 1,2011 (the"Financing Agreement") between CARMEL LOFTS LLC,an Indiana limited liability company(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 Cannel Redevelopment Commission (the "Redevelopment Commission") has established the Old Town Economic Development Area and, within such area, the Arts District Lofts & Shoppes Tax Allocation Area (the "Area") located in the City of Cannel; 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 Cannel; will benefit the health, safety, morals, and general welfare of the citizens of the City of Cannel 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 (a) Senior Economic Development Revenue Bonds, Series 2011A (Arts District Lofts & Shoppes Project) in the aggregate principal amount of$9,630,000,pursuant to the Series 2011A Indenture dated as of July 1,2011 from the Issuer to Regions Bank, as trustee (the "Series 201IA Bonds"), and (b) Subordinate Economic Development Revenue Bonds, Series 2011B (Arts District Lofts & Shoppes Project) in the aggregate principal amount of$3,370,000, pursuant to the Series 2011B Indenture dated as of July 1, 2011 from the Issuer to Regions Bank, as trustee (the "Series 2011B Bonds") (the Series 2011A Bonds and the Series 2011B Bonds, collectively, the "Bonds" and the Series 2011A Indenture and Series 2011B Indenture, collectively, the "Indenture"), and intends to provide the proceeds of the Bonds pursuant to the provisions of this Financing Agreement to the Company to finance the Projects,which included the acquisition of land and the design and/or construction of buildings and improvements that will comprise the Arts District Lofts & Shoppes project in the Old Town Economic Development Area in downtown Cannel, including without limitation the design and construction of a parking garage on the site of the Project located in the City;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 as security for the Bonds. The Series 2011A Bonds issued under the Series 2011A Indenture will be payable from tax increment revenues of the Issuer's Redevelopment Commission located in a designated area known as the "Arts District Lofts & Shoppes Tax Allocation Area," and other legally available revenues of the Redevelopment Commission, and the Series 2011B Bonds issued under the Series 2011B Indenture will be payable from excess tax increment revenues of the Arts District Lofts & Shoppes Tax Allocation Area on a subordinate basis to the Series 2011A Bonds. 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: 2 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 Arts District Lofts & Shoppes Tax Allocation Area established as an allocation area by the Redevelopment Commission, all in accordance with IC 36-7-14-39 and IC 37-7-14-39.3 for the purposes of capturing incremental ad valorem real property taxes of the Company levied and collected in such allocation area. "Bond Fund" means, collectively, the City of Cannel, Indiana—Cannel Lofts Project Bond Fund established by Section 4.2 of the Series 2011A Trust Indenture and the City of Cannel, Indiana—Carmel Lofts Project Bond Fund established by Section 4.2 of the Series 2011B Trust Indenture. "Bondholder"or"owner of a Bond"or any similar term means the owner of a Bond. "Bonds"means,collectively,the Series 2011A Bonds and the Series 2011B Bonds. "Company"means Cannel Lofts LLC, or any successors thereto permitted under Section 9.4 hereof. "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 collectively, the Series 2011A Trust Indenture and the Series 2011B Trust Indenture. "Issuer"means the City of Carmel, Indiana, a municipal corporation duly organized and validly existing under the laws of the State. "Plans and Specifications"means the plans and specifications for the Projects as provided to the Issuer. "Pledged Tax Increment" means the property tax proceeds received by the Redevelopment Commission and pledged to the Issuer pursuant to a resolution adopted by the Redevelopment Commission on November 17, 2010, from the assessed valuation of real 3 property in the Allocation Area, in excess of the assessed valuation described in IC 36-7-14- 39(b)(1),as such statutory provision exists on the date of execution of the Indenture. "Projects"means the acquisition of land and the design and/or construction of buildings and improvements that will comprise the Arts District Lofts & Shoppes project in the Old Town Economic Development Area in downtown Carmel, including without limitation the design and construction of a parking garage on the site of the Project located in the City. "Project Fund" means, collectively, the Project Fund for the Series 2011A Bonds established in Section 4.3 of the Series 2011A Trust Indenture and the Project Fund for the Series 2011B Bonds established in Section 4.3 of the Series 2011B Trust Indenture. "Redevelopment Commission"means the Carmel Redevelopment Commission. "Series 2011A Bonds" means the City of Cannel, Indiana, Senior Economic Development Revenue Bonds, Series 2011A (Arts District Lofts & Shoppes Project) in the aggregate principal amount of$9,630,000. "Series 2011B Bonds" means the City of Carmel, Indiana, Subordinate Economic Development Revenue Bonds, Series 2011B (Arts District Lofts & Shoppes Project) in the aggregate principal amount of$3,370,000. "Series 2011A Trust Indenture" means the Indenture dated as of July 1, 2011, between the Issuer and the Trustee and all amendments and supplements thereto related to the Series 2011A Bonds. "Series 2011B Trust Indenture" means the Indenture dated as of July 1, 2011, between the Issuer and the Trustee and all amendments and supplements thereto related to the Series 2011B Bonds. "State"means the State of Indiana. "Tax Certificate" means the Tax and Arbitrage Certificate delivered in connection with the initial issuance and delivery of the Bonds. "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. (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 4 • 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) • 5 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 Series 2011A Bonds in the amount of$9,630,000 and its Series 2011B Bonds in the amount of$3,370,000, 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 Cannel 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 Indiana limited liability company validly existing under the laws 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. 6 • (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 Financin g Agreement. reement. (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) 7 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 8.1 hereof and in addition to the rights retained by the Issuer pursuant to Section 6.1(c) hereof as well as those rights granted to the Issuer under Section 3.5 hereof and Section 6.5 of the Indenture. Section 3.2. Payment of Principal and Interest. (a) In accordance with the Series 2011A Trust Indenture, the Series 2011A Bonds are payable from tax increment revenues of the Issuer's Redevelopment District located in the Allocation Area and other legally available revenues of the Redevelopment Commission. In accordance with the Series 2011B Trust Indenture, the Series 2011B Bonds are payable from tax increment revenues of the Issuer's Redevelopment District located in the Allocation Area after the payment of the Series 2011A Bonds. (b) Pursuant to Section 4.4 of the Series 2011A Trust Indenture, the Issuer shall transfer on or before each January 1 and July 1 of each year, commencing July 1, 2012, the Pledged Tax Increment to the Prepaid Interest Account, but no more than shall be necessary for the payment of the total amount of interest on the Bonds through the immediately succeeding eight months(taking into consideration any amounts currently deposited therein), and to the Debt Service Account the Pledged Tax Increment that shall be necessary for the payment of principal on the Bonds on the immediately succeeding February 1 or August 1 of each year (taking into consideration any amounts currently deposited therein), together with Trustee fees coming due within the next eight months. In addition, if required, any payments from the Issuer of other legally available revenues of the Redevelopment District for the Series 2011A Bonds shall be deposited into the Bond Fund. (c) Pursuant to Section 4.4 of the Series 2011B Trust Indenture, the Issuer shall transfer such excess tax increment revenues of the Redevelopment District located in the Allocation Area not needed for (a) principal of and interest on the Series 2011A Bonds or (b) amounts required to reimburse the Redevelopment District for improvements made for the Projects, to the Debt Service Account of the Series 2011B Bonds for payment on the next February 1 or August 1 of each year of principal of and interest on the Series 2011B Bonds, together with Trustee fees coming due on such February 1 or August 1 of each year, as the case may be. 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 8 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 actions, 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 or the Indenture; (b) Violation of any contract, agreement or restriction by the Company relating to the Projects, or a part thereof; (c) Violation of any law, ordinance or regulation by the Company arising out of the ownership,occupancy or use of 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. 9 Section 3.6. Payment of Expenses of Issuance of Bonds. The Issuer shall pay from the proceeds of the Bonds and other legally available funds,as necessary,the costs of issuance of the Bonds. Section 3.7. Completion and Use of Projects. (a) Company agrees that it will, within 18 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, expansion, equipping and improvement of the Projects in compliance with the Plans and Specifications and, upon completion, the Company will operate and maintain the Projects in such manner as reasonably within Company's power 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 Projects, or to reimburse Company for any costs of the Project, and to pay the Costs of Issuance for the Bonds. The Company agrees to direct such requisitions to 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 4.3 of the Indenture and this Section 3.7. (c) The Company shall provide a final order certificate with respect to the Project in the manner provided in Section 4.3(a) 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: (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 Pledged Tax Increment or other legally available revenues of the Redevelopment Commission are not available. (b) All reasonable costs incident to the payment of the principal of,premium, if any, and interest on the Bonds as the same become due and payable, including all reasonable costs and expenses in connection with the call, redemption and payment of Bonds to the extent Pledged Tax Increment or other legally available revenues of the Redevelopment Commission are not available. (c) 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 10 obligations under this Financing Agreement or the Indenture,to the extent that such expenses are not included in the Bonds. (d) 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. (e) 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) 11 ARTICLE IV [RESERVED] (End of Article IV) 12 ARTICLE V [RESERVED] (End of Article V) 13 ARTICLE VI EVENTS OF DEFAULT AND REMEDIES THEREFOR Section 6.1. 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 notice thereof from the Trustee to the Company,unless the Requisite Bondholders shall have consented thereto;provided that the Requisite Bondholders shall not be able to waive an Event of Default if such Event of Default relates to the failure of payment of Trustee fees. (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 6.1(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. It is agreed that the holders of all of the Bonds outstanding at any time may direct the Trustee, and upon being satisfactorily indemnified, the Trustee shall abide by such direction, with regard to the remedy or remedies to be pursued hereunder or under the Indenture. 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 default, and shall have provided the Trustee with evidence thereof to the reasonable satisfaction of the Trustee, then in every case such 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 6.2. 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 6.3. 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 14 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. (End of Article VI) 15 • ARTICLE VII IMMUNITY Section 7.1. 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 7.2. 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 Pledged Tax Increment and the other revenues and income derived under this Financing Agreement and as otherwise provided under this Financing Agreement and 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 VII) 16 ARTICLE VIII SUPPLEMENTS AND AMENDMENTS TO THIS FINANCING AGREEMENT Section 8.1. 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 VIII) • 17 v • ARTICLE IX MISCELLANEOUS PROVISIONS Section 9.1. 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 9.2. 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 enforceabili ty of the remainin g p rovisions contained herein and therein shall not in any way be affected or impaired thereby. Section 9.3. 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 Cannel, Indiana 46032 To the Company: Cannel Lofts LLC Attention: Ersal Ozdemir 47 South Pennsylvania Street Indianapolis,Indiana 46204 Section 9.4. 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 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 without the consent of the Bondholders or the Issuer, which may be withheld in their absolute discretion. 18 e Section 9.5. 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 9.6. 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) 19 IN WITNESS WHEREOF, the Issuer and the Company have caused this Financing Agreement to be executed in their respective names, and the Issuer and the Company have caused their corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the date first above written. CARMEL LOFTS LLC, an Indiana limited liability company By: KEYST• Q JP LLC,its sole Member �rsal Ozdemir,President "THE ISSUER" CITY OF CARMEL, INDIANA ay i i 16,or Attest: Clerk-Treasurer [SIGNATURE PAGE OF'rHl+:FINANCING AGREEMENT BETWEEN CARMEL LOFTS LLC AND THE CITY OF CARMEL,INDIANA] INDS01 RCS 1242735v5 y 10/08/2014 m TO:Diana Cordray, City of Carmel Clerk-Treasurer ¢ c TYPE OF DELIVERY: Interoffice Mail and/or Hand Delivery C° PHONE: 5 ° v'^ 1 FROM: Mike Lee 0 PHONE: rn 0 FOR YOUR RECORDS I IJ 0 PAGES: 12 (double sided) RE:Arts District Lofts and Shoppes Financing Agreement CC: ra CD sr COMMENTS: N ND Financing Agreement between CRC and Carmel Lofts, LLC for the Sophia Square project. Pdree I 1.1-7 w E CD CSD z Co Q�OisELOPMENT CO 94 'E d 8- 130 WO/ CRC N City of Carmel Indiana 11/2zrs 1Dis112i Gt GoffT I-topPEs FINANCING AGREEMENT BETWEEN CARMEL LOFTS LLC N AND c-) CITY OF CARMEL,INDIANA co Dated as of July 1,2011 a- Certain of the rights of the Issuer hereunder have been assigned to Regions Bank, as trustee under a Trust Indenture dated as of the date hereof, from the Issuer.