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the Recorder of Hamilton County, Indiana.
FIRST AMENDMENT TO
DECLARATION OF COVENANTS AND EASEMENTS
This First Amendment to Declaration. of Covenants and Easements (the "First
Amendment made this Ai gay of April, 2009, by Meridian 131, LLC, an Indiana limited
liability company (the "Declarant and The Rector, Wardens, and Vestrypersons of St.
Christopher's Episcopal Church, of Carmel, Indiana alk/a St. Christopher's Episcopal Church, of
Carmel, Indiana (collectively, the "Church
WITNESSETH:
WHEREAS, Declarant and Church executed that certain Declaration of
Covenants and Easements dated October 2, 2007, and recorded on October 22, 2007, as
Instrument No. 2007060172, in the Office of the Recorder of Hamilton County, Indiana, as
limited by that certain First Limitation of Declaration of Covenants and Easements dated
January 30, 2008, and recorded on February 6, 2008, as Instrument No. 2008005827, and re-
recorded on February 12, 2008, as Instrument No. 2008006783, as supplemented by that certain
First Supplement to Declaration of Covenants and Easements dated March 14, 2008, and
recorded on July 8, 2008, as Instrument No. 2008035517, all in the Office of the Recorder of
Hamilton County, Indiana (collectively, the "Declaration and
WHEREAS, the provisions of Article III, Section 5(b) of the Declaration, permit
the Majority Owners to modify and amend the Declaration without the approval of the other
Owners; provided, that no such modification and amendment shall increase materially the
obligation(s) of any Owner or the Church or diminish materially the right(s) of any Owner or the
Church under any covenant, condition, term, or provision without such Owner's or the Church's
consent; and
WHEREAS, Declarant constitutes the Majority Owners under the Declaration as
the owner in the aggregate of 75% or more of the aggregate acreage of the Project and 75% or
more of the aggregate Gross Floor Space; and
WHEREAS, the Church desires to grant to Declarant and Declarant desires to
obtain from the Church, perpetual and non exclusive easements on, in, under, above, over, across
and through portions of the Church Parcel, for purposes of providing the Utility Systems and
further developing the Project; and
WHEREAS, the Declarant and Church desire to more particularly specify the
location of and define the rights with respect to the Access Easements granted in gross in favor
of Declarant and identified on Exhibit D to the Declaration; and
WHEREAS, the modifications and amendments contained herein will not
increase materially the obligation(s) of any Owner or diminish materially the right(s) of any
Owner under any covenant, condition, term, or provision of the Declaration.
TERMS AND CONDITIONS:
NOW, THEREFORE, the Declarant and Church, in accordance with the
provisions of the Declaration, make this First Amendment and hereby amend the Declaration in
the manner hereinafter provided:
1. Definitions. All terms used in this First Amendment with initial capital
letters (and not otherwise defined in this First Amendment) shall have the same meanings herein
as in the Declaration (as the same may be amended, limited or supplemented from time to time as
therein provided).
2. Exhibit D. Exhibit D to the Declaration is hereby deleted in its entirety
and replaced with Exhibit D attached hereto and incorporated herein by reference.
3. Amendment to Article I, Section 1. Article I, Section 1, is hereby deleted
in its entirety and replaced with the following:
"Section 1. Access Easements. Declarant and the Church hereby declare,
create, make, and reserve the following access easements (the "Access Easements
(a) temporary construction easements in favor of Declarant and/or the Responsible Party (as
defined in Article II, Section 2(a) hereof), as the case may be, for the purpose of constructing
and installing the Common Access Ways and/or the Traffic Control System (as such terms are
hereafter defined) in accordance with Article II, Section 2, provided that the reservation herein
of the temporary construction easements shall not be deemed to impose upon Declarant and /or
the Responsible Party any obligation to construct, install, or otherwise provide the Common
Access Ways and /or the Traffic Control System except as set forth in Article II, Section 2
hereof; (b) perpetual and nonexclusive mutual easements appurtenant to the Parcels and the
Church Property for the benefit of the Parcels, the Church Property, Declarant, the Owners, the
Church and all other Parties in Interest; and (c) easements in gross in favor of Declarant; each of
which easements shall be in, on, under, over, above, across, and through those certain portions
of the Real Estate and the Church Property that are depicted and described on Exhibit D,
attached hereto and incorporated herein by reference. The Access Easements and all rights in
and to the Access Easements are declared, created, made, and reserved for the purposes of: (i)
providing access, ingress, and egress by vehicular and pedestrian traffic to (and from) the
Church Property and each Improved Parcel from (and to) roadways and public streets,
including, without limitation, 131st Street Parkway (the "Common Access Ways which
Common Access Ways shall be constructed within the Access Easements, as more particularly
depicted on the proposed site plan for the Project, attached hereto as Exhibit E and incorporated
herein by reference (the "Proposed Site Plan (ii) providing a system for directing and
controlling the flow, progress, and pattern of the vehicular and pedestrian traffic over and across
the Common Access Ways (the "Traffic Control System and (iii) further developing the
Project and the Adjacent Real Estate including, without limitation, the installation of
landscaping in connection with the Common Access Ways in accordance with the plans and
specifications required by the Municipality and as otherwise required by law, which landscaping
in connection with the Common Access Ways (whether inside or outside of the Access
Easement) shall be paid for and installed at the full cost and expense of the Declarant subject to
the Church's prior written approval as set forth in Article II Section 2(a). The Traffic Control
System shall include all equipment, fixtures, and facilities used in connection with directing and
controlling the flow, progress, and pattern of the vehicular and pedestrian traffic, such as street
lights, stop signs, and traffic direction and information signs. The Church shall have the right to
access the Common Access Way constructed on the Church Property at such Location or
locations as may be approved by Declarant, which approval shall not be unreasonably withheld,
conditioned or delayed, and the Municipality having jurisdiction thereover pursuant to private
agreement or otherwise. All of the Access Easements shall be subject to subsequent limitation
as provided in Sections 7 and 8 of this Article I, and to the covenants in Article II, Sections 1
through 3, regarding construction, and use and contributions for certain expenses (the "Owner
Covenants Any landscaping installed on the Church Property in connection with or as part of
the Church Property's Portion of the Common Access Ways and Traffic Control System shall be
subject to the prior written approval of the Church, which approval shall not be unreasonably
withheld, conditioned or delayed."
4. Amendment to Article I, Section 2. The first sentence of Article I, Section
2, is hereby deleted in its entirety and replaced with the following:
'Declarant and the Church hereby declare, create, make and reserve the
following utility and irrigation easements (the "Utility and Irrigation Easements
(a) temporary construction easements in favor of Declarant for the purpose of
constructing and installing the Utility Systems and /or the Irrigation System (as
such terms are hereafter defined), provided that the reservation herein of the
temporary construction easements shall not be deemed to impose upon Declarant
any obligation to construct, install, or otherwise provide the Utility Systems
and/or the Irrigation System except as set forth in Article II, Section 2 hereof; (b)
perpetual and nonexclusive mutual easements appurtenant to the Parcels for the
benefit of the Parcels, Declarant, the Owners and all other Parties in Interest; and
(c) easements in gross in favor of Declarant; each of which easements shall be in,
on, under, over, above, across, and through (i) the entirety of the Real Estate, and
(ii) those portions of the Church Property that are depicted and described on
Exhibit D and Exhibit 1, attached hereto and incorporated herein by reference (the
areas depicted and described on Exhibit D and Exhibit I are collectively referred
to as, the "Church Parcel Utility and Irrigation Easement Areas")."
5. Amendment to Article II, Section 2(a). The last sentence of Article II,
Section 2(a), is hereby deleted in its entirety and replaced with the following:
"Any landscaping installed on the Church Property in connection with or
as part of the Church Property's Portion of the Common Access Ways and Traffic
Control System shall be subject to the prior written approval of the Church, which
approval shall not be unreasonably withheld, conditioned or delayed, and the
Church further agrees that any proposed landscaping submitted to the Church for
approval shall be deemed approved unless the Church objects in writing on or
before fifteen (15) business days after such proposed landscaping is submitted to
the Church for approval."
6. Effect of Covenants. All provisions of this First Amendment and the
Declaration, as the same may be amended, limited or supplemented from time to time as therein
provided, shall be covenants running with the land and shall be binding on all persons and
entities from time to time having any right, title or interest in the Real Estate and/or the Church
Parcel Utility and Irrigation Easement Areas, or in any respective part thereof and on all persons
claiming under them, as more particularly provided in the Declaration.
7. Declaration Continuous. Except as expressly modified and /or amended by
this First Amendment, the Declaration (as the same has been amended, limited or supplemented)
shall continue in full force and effect.
[The remainder of this page is intentionally left blank
Signature page(s) to follow.]
IN WITNESS WHEREOF, Declarant and the Church have executed this First
Amendment, as of the date first written above, for filing of record in the Office of the Recorder
of Hamilton County, Indiana.
MERIDIAN 131, LLC, an Indiana limited liability
company
By: BROWNING INVESTMENTS, INC.,
its Manager
By:
James W. Browning, Vice President
THE RECTOR, WARDENS, AND
VESTRYPERSONS OF ST. CHRISTOPHER'S
EPISCOPAL CHURCH, OF CARMEL, INDIANA
a/k/a ST. CHRISTOPHER'S EPISCOPAL
CHURCH, OF CARMEL, INDIANA
By:
Printed:
Title:
-5
DDDB01 5601051v5
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared James W.
Browning, the Vice President of Browning Investments, Inc., the Manager of Meridian
131, LLC, an Indiana limited liability company, who, having first been duly sworn,
acknowledged the execution of the foregoing First Amendment to Declaration of Covenants and
Easements for and on behalf of said entity.
Witness my hand and Notarial Seal this day of April, 2009.
[SEAL]
Notary Public
Printed:
I am a resident of County,
My commission expires:
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana,, personally appeared
the. of The Rector, Wardens, and
Vestrypersons of St. Christopher's Episcopal Church, of Carmel, Indiana a/k/a St. Christopher's
Episcopal Church, of Carmel, Indiana, who, having first been duly sworn, acknowledged the
execution of the foregoing First Amendment to Declaration of Covenants and Easements for and
on behalf of said entity.
Witness my hand and Notarial Seal this day of April, 2009.
[SEAL]
Notary Public
Printed:
I am a resident of County,
My commission expires:
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law: Marc D. Pfleging.
This instrument was prepared by Marc D. Pfleging, Attorney at Law, Baker Daniels LLP, 600
E. 96th Street, Suite 600, Indianapolis, Indiana 46240
-6
BDDB01 5601051v5
CONSENT OF MORTGAGEE
The undersigned, M I Marshall and Ilsley Bank, a Wisconsin Banking
Corporation, the successor by merger to First Indiana Bank, N.A., being the holder of an existing
mortgage and other security on real estate currently owned by Meridian 1 LLC which is
subject to the Declaration, hereby consents to the recording of the above First Amendment, and
further agrees that its mortgage and other security with respect to the real estate shall be
subordinate and subject to the provisions of the Declaration, as amended, supplemented and/or
limited as of the date hereof and to this First Amendment and Exhibits attached hereto and the
documents incorporated therein; provided, however, except and to the extent that the mortgage
and other security are subordinated by this Consent, such mortgage and other security shall
remain in full force and effect.
EXECUTED this /9 day of April, 2009.
M I Marshall and Ilsley Bank
Senior Vic President
STATE OF INDIANA
SS:.
COUNTY OF Marton
ssel1 I Q aSt)ax a kefore me, a Notary Public in and for said County and State, personally appeared
Robert -B —gee#, the Senior Vice President of M I Marshall and Ilsley Bank., and who
acknowledged the execution of the foregoing "Consent of Mortgagee" for and on behalf of said
bank.
WITNESS my hand and Notarial Seal this 45 day of April, 2009.
JEI EA 1� L t LADE
NOT
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sun 1 881E s I (*.IDIOM
Si tu
�,�,7 JenniI r 4. Len lcc
Printed Name Notary Public
I am a resident ofjefinson County, Indiana.
My commission expires: ny'251120
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PIC JOB NO. 060384 -20300
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EASEMENT EXHIBIT
December 10, 2008
A port of the Northwest Quarter and the Northeast Quarter of Section 26,
Township 18 North, Range 3 East in Hamilton County, Indiana, more
particularly described as follows:
Commencing at the Southeast earner of the Northwest Quarter of said
Section 26, thence along the south line of said Northwest Quarter section,
South 88 degrees 42 minutes 47 seconds West (bearing assumed) 325.87
feet (the next four courses are along the lines for the proposed 131st Street
right of way); (1) thence North 01 degrees 17 minutes 13 seconds West
16.50 feet; (2) thence North 54- degrees 32 minutes 19 seconds West 97.78
feet; (3) thence North 68 degrees 42 minutes 47 seconds East 285.21 feet
to a non tangent curve to the right having a radius of 120.00 feet, the
radius paint of which bears South 52 degrees 37 minutes 45 seconds East
(4) thence Northeasterly along said curve 78.36 feet, to a point which bears
North 15 degrees 12 minutes .28 seconds West from the radius point and to
the POINT OF BEGINNING; thence North 00 degrees 26 minutes 30 seconds
West 57.56 feet; thence North 13 degrees 33 minutes 58 seconds Eost
185.57 feet; thence North 46 degrees 03 minutes 58 seconds East 86.92
feet; thence North 50 degrees 31 minutes 54 seconds. Eost 79.55 feet;
thence North 61 degrees 46 minutes 54 seconds East 302.79 feet; thence
North 89 degrees 50 minutes 43 seconds East 544.26 feet to the West line
of the Right of Way for Grand Boulevard as described in Instrument No.
2005- 068465 and recorded in the Recorder's Office of Hamilton County,
Indiana; thence along said West line, South 00 degrees 09 minutes 11
seconds East 66.00 feet; thence South 89 degrees 50 minutes 4.3 seconds
West 429.30 feet; thence South 84 degrees 23 minutes 01 seconds West
122.97 feet; thence South 51 degrees 51 minutes 55 seconds West 151.17
feet; thence South 58 degrees 57 minutes 02 seconds West 140.43 feet;
thence South 38. degrees 56 minutes 43 seconds West 160.73 feet thence
South 18 degrees 18 minutes 00 seconds West 69.09 feet; thence South 01-
degrees 13 minutes_38 seconds East 76.90 feet to a non- tangent.curve to
the left having a radius of 120.00 feet, the radius point of which bears
South 25 degrees 13 minutes 25 seconds West and the proposed North right
of way line of said 131st Street; thence Westerly along said proposed North
Right of way line dnd said curve 84.68 feet, to a point which bears North
15 degrees 12 minutes 28 seconds West from said radius point and to the
POINT OF BEGINNING, containing 1.682 acres, more or less.
Subject to all easements, rights of way and restrictions of record_
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3939 PRIORITY WA's' SOUTH DRIVE„ SUITE 400 INDIANAPOUS, INDIANA 41,240 BY: cm. QUILL EN
(3 844 -6777 FAX (3171 706-4464 EMail crtpe @cripe.blz
i ARCHTECTURE fAUIPM&T FLAWING 1NYBtlOR637GH CIVICENGNffRNG LAND PLANNING LAM SI1pvEala• G6 OWNERSA 'RPSENTAIION
PIC J06 NO. 060384 -20300
11.1%. DATE: JANUARY 26, 2009
Cripe SHEET 2 OF 2
An:Mb/Ices *Engineers
sdstkmero•asn r,ersar
EASEMENT EXHIBIT
Part of the Northeast Quarter of Section 26, Township 18 North, Range 3 East in Hamilton
County, Indiana, more particularly described as follows;
Commencing at the Southwest corner of the Northeast Quarter of said Section 26, thence
along the south line of said Northeast Quarter section, North 88 degrees 47 minutes 49
seconds East (assumed bearing) 372.82 feet to the west line of the land described in
Instrument No. 2005 00059082 as recorded in the Office of the Recorder of Hamilton
County, Indiana (the next two courses are along the west and north lines of saki described
land); (1) thence North 01 degrees 12 minutes 11 seconds West 60.00 feet; (2) thence
North 88 degrees 47 minutes 49 seconds East 42.41 feet to the east line of the land
described in the deed to. Meridian 131, LLC per Instrument No. 2007 060171 as recorded in
said Recorders Office and the POINT OF BEGINNING; thence along said east line, North 01
degrees 12 minutes 11 seconds West 18.50 feet; thence South 69 degrees 16 minutes 43
seconds East 49:53 feet to the north line of said described land; thence along said north
line, South 88 degrees 47 minutes 49 seconds West 45.95 feet to the POINT OF BEGINNING,
containing, 0.010 acres (425 square feet), more or less.
Subject to all easements, rights of way and restrictions of record.
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BY: C.M. QUIL1£N
3939 PRIORnY WAY SOUTH DRIVE. SURE 400 INDIANAPOLIS, INDIANA 46240
(317) 844 -6777 FAX (317) 706- 6464 E-Mal cdpe®cripe.blz
ARCW TURe EGUMMINr p[ANNiNG INTERIOR DEIGN CM1.04 7G LAND PIAHNNG WO SURVEYNG GIS OWNER'S REP ESBIIATCH4