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HomeMy WebLinkAboutD-2100-12 $195,000,000 CRC Refinance As AmendedSponsors: Councilors Sharp and Snyder ORDINANCE D- 2100 -12 AS AMENDED AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, APPROVING A LEASE BETWEEN THE CITY OF CARMEL REDEVELOPMENT AUTHORITY AND THE CITY OF CARMEL REDEVELOPMENT COMMISSION AND TAKING OTHER ACTIONS RELATED THERETO WHEREAS, the City of Carmel Redevelopment Authority (the "Authority ") has been created pursuant to Indiana Code 36 -7 -14.5 as a separate body corporate and politic, and as an instrumentality of the City of Carmel, Indiana (the "City ") to finance local public improvements for lease to the City of Carmel Redevelopment Commission (the "Commission "), as the governing body of the City of Carmel Redevelopment District (the "District "); and WHEREAS, the Authority has adopted, or is expected to adopt, a resolution indicating its intent to issue one or more series of its lease rental revenue bonds, all or any portion of which may be taxable or tax - exempt for federal income tax purposes, in the maximum original principal amount of $195,000,000 (collectively, the "Bonds "), to provide funds for the purposes of: (a) financing the acquisition by the Authority from the City of the real property described in Exhibit B to the Lease (as hereinafter defined) (the "Real Property "), and the use by the City of the proceeds of such sale to (i) refund, or cause to be refunded, all of the outstanding obligations of the City and /or the District, listed on Exhibit A hereto and made a part hereof, and pay all costs or expenses incurred in connection therewith (clause (a)(i), collectively, the "Refunding Project "), and (ii) finance or reimburse the cost of the construction, renovation, improvement and/or equipping of the projects identified on Exhibit B hereto and made a part hereof (clause (a)(ii), collectively, the "City Center Completion Projects "); (b) funding a debt service reserve fund or paying the premiums for one or more municipal bond insurance policies and /or one or more debt service reserve fund credit facilities, if any; (c) paying capitalized interest on the Bonds, if any; and (d) paying all costs of issuance of the Bonds (clauses (a) through and including (d), collectively, the "Project "); and WHEREAS, the Authority and the Commission have adopted, or are expected to adopt, resolutions approving a proposed Lease Agreement in the form presented at this meeting (the "Lease ") for the purpose of paying the principal and interest on the Bonds issued pursuant to Indiana Code 36 -7 -14.5 to finance the Project; and WHEREAS, the annual rentals (the "Lease Rentals ") payable by the Commission under the Lease will be pledged by the Authority to pay debt service on the Bonds; and WHEREAS, the Commission reasonably expects to pay the Lease Rentals during the term of the Lease from tax increment revenues or other legally available revenues of the Commission, and the payment of the Lease Rentals will be secured by a back -up pledge of the revenues derived by the Commission from the levy of a special benefits tax pursuant to Indiana Code 36- 7- 14 -27; and WHEREAS, the Commission scheduled a public hearing regarding the Lease pursuant to Indiana Code 36 -7 -14 -25.2 and Section 147(f) of the Internal Revenue Code of 1986, as amended and in effect on the date hereof, and published a notice of such public hearing pursuant to Indiana VERSION A - 11/19/12 Code 5 -3 -1, and said public hearing has been held and all interested parties were provided the opportunity to be heard at the hearing; and WHEREAS, pursuant to Indiana Code 36- 7- 14.5 -14 and Indiana Code 36 -7 -14 -25.2, the Commission has adopted a resolution finding that the lease rental payments to be paid by the Commission to the Authority pursuant to the Lease are fair and reasonable, and that the terms of the Lease are based upon the value of the Leased Premises (as defined in the Lease) and the use of the Project throughout the term of the Lease will serve the public purpose of the City and is in the best interests of its residents; and WHEREAS, the Common Council of the City (the "Common Council ") desires to approve the Lease pursuant to Indiana Code 36 -7 -14 -25.2, which provides that any lease approved by a resolution of the Commission must be approved by an ordinance of the fiscal body of the unit; and WHEREAS, the proceeds of the sale of a portion of the Real Property to the Authority (the "Sale Proceeds ") have not been included in the existing budget for the City, and the City now desires to appropriate the Sale Proceeds for the purpose of being applied to the payment of the costs of the Project; and WHEREAS, notice of a hearing on said appropriation has been duly given by publication as required by law, and the hearing on said appropriation has been held, at which all taxpayers had an opportunity to appear and express their views as to such appropriation; NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, as follows: Section 1. Approval of Lease and Bonds. The Common Council hereby approves the issuance of the Bonds and the execution and delivery of the Lease, as approved by the Commission, pursuant to Indiana Code 36 -7 -14 -25.2, including, if necessary, the levy by the Commission of a special benefits tax pursuant to Indiana Code 36- 7 -14 -27 during the term of the Lease to provide necessary funds from which to pay the Lease Rentals under the Lease, all upon the following conditions: (a) the maximum aggregate original principal amount of the Bonds shall not exceed $195,000,000; (b) the maximum annual lease rental payment during the term of the Lease shall not exceed $21,500,000; (c) the maximum interest rate on the Bonds shall not exceed five percent (5.00 %) per annum; (d) the Bonds may be subject to redemption prior to maturity on any date not earlier than five (5) years following the date of issuance of the Bonds, with such specific dates and redemption terms determined at the time of the sale of the Bonds and approved by the Authority in the purchase agreement for the Bonds, all upon the advice of the financial advisor to the Authority; (e) the awarding of all construction bids for the various portions of the City Center Completion Projects shall be subject to the procedures set forth in Exhibit C hereto; (f) any change orders for the City Center Completion Projects that exceed $49,999 shall be subject to the procedures set forth in Exhibit C hereto; and (g) the Common Council shall approve the use of any surplus proceeds of the Bonds remaining after completion of the Project. Section 2. Sale of Right -of -Way; Appropriation of Sale Proceeds. The Common Council hereby authorizes the sale to the Authority of the existing Real Property which will comprise or be included in the Leased Premises under the Lease, for a price sufficient to cover the costs of the Project, but in any event not to exceed $195,000,000. The Mayor, Clerk- Treasurer and other officers of the City are hereby authorized to take such actions and execute such documents as VERSION A - 11/19/12 2 may be necessary to effectuate such sale and transfer. There is hereby appropriated a sum not to exceed $195,000,000 out of the Sale Proceeds, together with all investment earnings thereon, for the purpose of providing funds of the City to be applied to the costs of the Project. Such appropriation shall be in addition to all appropriations provided for in the existing budget and shall continue in effect until the completion of the Project. The Mayor and the Clerk- Treasurer are hereby authorized to take all such actions and execute all such instruments as are necessary or desirable to effectuate this appropriation, including the filing of a report of this appropriation with the Indiana Department of Local Government Finance. Section 3. Authorization of Other Actions. Each of the Mayor, any member of the Common Council and the Clerk- Treasurer, and any other officer, employee or agent of the City is hereby authorized and directed, for and on behalf of the City, to execute and deliver any contract, deed, agreement, certificate, instrument or other document and to take any action as such person determines to be necessary or appropriate to accomplish the purposes of this Ordinance, such determination to be conclusively evidenced by such person's execution of such contract, deed, agreement, certificate, instrument or other document or such person's taking of such action. Section 4. Severability. If any part of this Ordinance shall be adjudged to be invalid by a court of proper jurisdiction, it shall be conclusively presumed that the Common Council would have passed the remainder of this Ordinance without such invalid part. Section 5. Repeal of Conflicting Ordinances. All ordinances, resolutions and orders, or parts thereof, in conflict with the provisions of this Ordinance, are, to the extent of such conflict, hereby repealed. Section 6. Effectiveness. This Ordinance shall be in full force and effect from and after its adoption by the Common Council and upon compliance with the procedures required by law. VERSION A - 11/19/12 ■ 3 PASSED by the Common Council of the City of Carmel, this I q44" day of N 64)-e1v,n.Qgh , 2012, by a vote of 7 ayes and 0 nays. MMON COUNCIL OF THE CITY OF CARMEL, IND residing Officer Richard L. S arp, Pre dent Pro Tempore Carol Schleif Ronald E. Carter W. Eric Sei risticker ATTEST: �aD a(fL \� is„ Yt, Diana L. Cordray, IAMC, Clerk- Tre'i,irer Presented by me to the Mayor of the City of Carmel, Indiana 't 2012, at 7: Lt ---P.m. D is riday of , /0 Diana L. Cordray, IAMC, Clerk- Treasur Approved by me, Mayor of the City of Camel, Indiana, this t day of (6A-, 2012, at 1: N5 P .M. ATTEST: L0 LC Jams Brainard, Mayor Diana L. Cordray, IAMC, Clerk- Treasurer Prepared by: Bruce D. Donaldson Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, IN 46204 VERSION A - 11/19/12 4 EXHIBIT A LIST OF OUTSTANDING OBLIGATIONS OF THE CITY AND /OR THE DISTRICT TO BE REFUNDED 1. Installment Purchase Contracts securing loans under Master Loan Program Agreement with Regions Bank dated December 30, 2008 [Advance Date: January 7, 2009] 2. Installment Purchase Contracts securing loans under Master Loan Program Agreement with Regions Bank dated December 30, 2008 [Advance Date: May 22, 2009] 3. Installment Purchase Contracts securing loans under Master Loan Program Agreement with Mercantile Bank dated August 31, 2009 4. City of Cannel, Indiana, Redevelopment District Certificates of Participation, Series 2010A, dated January 21, 2010 5. City of Carmel, Indiana, Redevelopment District Certificates of Participation, Series 2010B dated January 21, 2010 6. Installment Purchase Contracts securing loans under Master Loan Program Agreement with The National Bank of Indianapolis dated January 29, 2010 7. Installment Purchase Contract(s) securing loan(s) under agreement with United Fidelity Bank dated June 10, 2010 8. Installment Purchase Contracts under Loan Program Agreement with Regions Bank dated July 22, 2010 9. Grant Agreement securing line of credit with Star Financial Bank dated November 17, 2011 10. Grant Agreement securing line of credit with Fowler State Bank dated November 8, 2011 11. Grant Agreement securing line of credit with CIBM Bank dated November 30, 2011 12. Amended and Restated Grant Agreement securing line of credit with Mercantile Bank dated January 18, 2012 13. Grant Agreement securing line of credit with BMO Harris Bank N.A. dated February 17, 2012 14. Amended and Restated Grant Agreement securing loan from BMO Harris Bank N.A. dated September 30, 2011 15. Parking and Grant Agreement securing loan from Lake City Bank dated December 28, 2010 VERSION A - 11/19/12 A -1 16. Tri -Party Agreement regarding loan from Community Bank dated September 10, 2009 17. Installment Purchase Agreement (Primary) securing loan(s) under agreement with BMO Harris Bank N.A. dated December 7, 2011 18. Replacement Land Sale Contract, dated February 17, 2010, between the City of Carmel Redevelopment Commission and 251, LLC 19. Land Sale Contract, dated March 2, 2011, between the City of Carmel Redevelopment Commission and BobbyJohn, LLC 20. Land Sale Contract, dated November 10, 2009, between the City of Carmel Redevelopment Commission and Old Town Properties, LLC 21. City of Carmel, Indiana Redevelopment District Taxable Tax Increment Revenue Bonds of 2008, dated July 15, 2008 VERSION A - 11/19/12 A -2 EXHIBIT B DESCRIPTION OF CITY CENTER COMPLETION PROJECTS The City Center Completion Projects consist of improvements to the development in the City of Carmel, Indiana, commonly known as "City Center" and located within the boundaries of the City Center Redevelopment Area created by the Commission, including road and street improvements, parking facilities and structures, lighting, utilities, landscaping, streetscape improvements, sidewalk improvements, and related land acquisition and environmental remediation costs. VERSION A - 11/19/12 B -1 EXHIBIT C CONSTRUCTION BIDDING AND CHANGE ORDER PROCEDURES 1. Whenever the Board of Public Works of the City (i) awards a construction bidding contract relating to the City Center Completion Projects, or (ii) approves a change order relating to the City Center Completion Projects that exceeds $49,999 (each, a "BPW Decision "), the Clerk - Treasurer of the City shall immediately provide notice of the BPW Decision to all members of the Common Council. 2. Subject to Section 3 below, the Common Council shall have the right to review and approve, reject or modify the BPW Decision. 3. If the Common Council has not rendered a decision under Section 2 above within five (5) business days of receiving the notice provided under Section 1 above, the BPW Decision shall be deemed approved by the Common Council. VERSION A - 11/19/12 C -1 INDS01 BJB 1340943v10 Barnes & Thornburg LLP Draft of 11/06/12 LEASE AGREEMENT between CITY OF CARMEL REDEVELOPMENT AUTHORITY LESSOR and CITY OF CARMEL REDEVELOPMENT COMMISSION LESSEE Dated as of , 2012 LEASE AGREEMENT THIS LEASE AGREEMENT, made and dated as of this day of , 2012, by and between the CITY OF CARMEL REDEVELOPMENT AUTHORITY, as lessor (the "Lessor "), a separate body corporate and politic organized and existing under Indiana Code 36 -7- 14.5 as an instrumentality of the City of Carmel, Indiana (the "City "), and the CITY OF CARMEL REDEVELOPMENT COMMISSION, as lessee (the "Lessee "), the governing body of the City of Carmel Department of Redevelopment acting for and on behalf of the City. WITNESSETH: WHEREAS, the City has created the Lessor under and in pursuance of the provisions of Indiana Code 36 -7 -14, Indiana Code 36 -7 -14.5 and Indiana Code 36 -7 -25 (collectively, the "Act "), for the purpose of financing, constructing, acquiring and leasing to the Lessee certain local public improvements; and WHEREAS, the City has created the Lessee to undertake redevelopment and economic development in the City in accordance with the Act; and WHEREAS, in order to foster economic development in the City, the Lessor and the Lessee desire to provide for the acquisition and construction of the projects set forth on Exhibit A hereto (collectively, the "Projects "); and WHEREAS, the Act authorizes the Lessor to issue bonds for the purpose of obtaining money to pay the cost of acquiring property or constructing, improving, reconstructing or renovating local public improvements; and WHEREAS, the costs of the refinancing, acquisition and construction of the Projects will be paid from proceeds of one or more series of bonds to be issued by the Lessor in a maximum original principal amount not to exceed $195,000,000 (collectively, the "Bonds "); and WHEREAS, the annual rentals to be paid under this Lease by the Lessee will be pledged by the Lessor to pay debt service on and other necessary incidental expenses of the Lessor relating to the Bonds to be issued by the Lessor to finance the Projects; and WHEREAS, pursuant to Indiana Code 36- 7- 14 -27, the Lessee has the authority to levy a special benefits tax upon all property in the City of Carmel Redevelopment District (the "District ") for the purpose of providing funds to pay the Lessee's debt service or lease rental obligations; and WHEREAS, the Lessor will acquire interests in the real estate described in Exhibit B (such real estate, together with any roads or other improvements that, on the date of acquisition thereof, are located thereon, collectively, the "Real Estate" or the "Leased Premises "), and such interests shall be for a term no less than the term of this Lease; and WHEREAS, the total cost of the Projects, including, but not limited to, costs of refinancing, acquisition, construction, improvements, architects' and engineers' fees, 2 consultants' services, legal and financing expenses, certain expenses of operation of the Lessor during construction, interest during construction, debt service reserves, premiums for credit facilities or other credit enhancements (if any) and repayment of any funds advanced by the City or Lessee to meet preliminary expenses necessary to be paid prior to the issuance of bonds by the Lessor, is estimated to be not greater than One Hundred Ninety -Five Million Dollars ($195,000,000); and WHEREAS, the Lessee has determined, after a public hearing held pursuant to the Act after notice given pursuant to Indiana Code 5 -3 -1, that the lease rentals provided for in this Lease are fair and reasonable, that the execution of this Lease is necessary and that the service provided by the Projects will serve the public purpose of the City and is in the best interests of its residents, and the Common Council has by ordinance approved this Lease, and the ordinance has been entered in the official records of the Common Council; and WHEREAS, the Lessor has determined that the lease rentals provided for in this Lease are fair and reasonable, that the execution of this Lease is necessary and that the service provided by the Projects will serve the public purpose of the City and is in the best interests of its residents, and the Lessor has duly authorized the execution of this Lease by resolution, and the resolution has been entered in the official records of the Lessor. THIS AGREEMENT WITNESSETH THAT: 1. Acquisition of Real Estate. The date by which the Lessor acquires the Real Estate and the Leased Premises are available for use shall be endorsed on this Lease at the end hereof by the parties to this Agreement, and such endorsement shall be recorded as an addendum to this Lease substantially in the form of Exhibit C attached hereto. 2. Premises, Term and Warranty. The Lessor does hereby lease, demise and let to Lessee all of the Lessor's right, title and interests in and to the Leased Premises. TO HAVE AND TO HOLD the Leased Premises with all rights, privileges, easements and appurtenances thereunto belonging, unto the Lessee, beginning on the date on which the Lessee begins to make lease rental payments hereunder and ending on the day prior to a date not more than twenty -five (25) years thereafter. However, the term of this Lease will terminate at the earlier of (a) the exercise by the Lessee of the option to purchase the Leased Premises pursuant to Section 12 and the payment of the option price, or (b) the payment or defeasance of all bonds issued (i) to finance the cost of the Leased Premises, (ii) to refund all or a portion of such bonds, (iii) to refund all or a portion of such refunding bonds, or (iv) to improve the Leased Premises; provided that no bonds or other obligations of the Lessor issued to finance the Leased Premises remain outstanding at the time of such payment or defeasance. The Lessor hereby represents that it is possessed of, or will acquire, the Leased Premises and the Lessor warrants and will defend the Leased Premises against all claims whatsoever not suffered or caused by the acts or omissions of the Lessee or its assigns. Notwithstanding the foregoing, the Leased Premises may be amended to add additional property to the Leased Premises or remove any portion of the Leased Premises, provided however, following such amendment, the rental payable under this Lease shall be based on the 3 value of the portion of the Leased Premises which is available for use, and the rental payments due under this Lease shall be in amounts sufficient to pay when due all principal of and interest on all outstanding Bonds. 3. Lease.Rental. (a) Fixed Rental Payments. The Lessee agrees to pay fixed annual rental for the use and occupancy of the Leased Premises at a maximum annual rate of Twenty -One Million Five Hundred Thousand Dollars ($21,500,000) (the "Fixed Annual Rentals "). The Fixed Annual Rentals shall be payable in advance in semi - annual installments on the dates set forth in Section 4 hereof, and shall be based on the value of the Leased Premises at the time such semi- annual installment is made. After the sale of the Bonds issued to finance the acquisition of the Leased Premises, the semi - annual installment of the Fixed Annual Rentals for the Leased Premises for each six -month period ending on each January 15 or July 15 (each a "Semi- annual Period ") shall be reduced to an amount equal to (a) the multiple of $1,000 next higher than the sum of principal and interest due on the Bonds in such Semi - annual Period, plus (b) an additional Five Thousand Dollars ($5,000). Payment of the Fixed Annual Rentals shall commence on the later of (i) the date the Real Estate is acquired by the Lessor, or (ii) a date to be determined at the time of the sale of the Bonds, but no earlier than January 15, 2013. Such date and the amount of each semi - annual installment of such reduced Fixed Annual Rentals shall be endorsed on this Lease, substantially in the form of Exhibit C attached hereto, by the parties hereto at the time of issuance of the Bonds and recorded as an addendum. If more than one series of Bonds is issued, the addendum shall be executed and recorded upon issuance of the final series of Bonds. (b) Additional Rental Payments. (i) The Lessee shall pay as further rental in addition to the rentals paid under Section 3(a) for the Leased Premises (such further rentals described in this Section 3(b), the "Additional Rentals ") the amount of all taxes and assessments levied against or on account of the Leased Premises or the receipt of lease rental payments and the amount required to reimburse the Lessor for any insurance payments made by it under Section 7. Any and all such payments shall be made and satisfactory evidence of such payments in the form of receipts shall be furnished to the Lessor by the Lessee, at least three (3) days before the last day upon which such payments must be paid to avoid delinquency. If the Lessee shall in good faith desire to contest the validity of any such tax or assessment, the Lessee shall so notify the Lessor and shall furnish bond with surety to the approval of the Lessor conditioned for the payment of the charges so desired to be contested and all damages or loss resulting to the Lessor from the nonpayment thereof when due, the Lessee shall not be obligated to pay the contested amounts until such contests shall have been determined. (ii) To the extent applicable to any series of Bonds, the Lessee shall also pay as Additional Rentals the amount calculated by or for the Lessor as the amount required to be rebated, or paid as a penalty, to the United States of America under Section 148(0 of the Internal Revenue Code of 1986, as amended and in effect on the date of issue of the Bonds ( "Code "), after taking into account other available moneys, to prevent any series of Bonds from becoming arbitrage obligations under Section 148 of the Code, if the interest of such series of Bonds is excludable from gross income under the Code for federal income tax purposes. (iii) The Lessee may by resolution pay Additional Rentals to enable the Lessor to redeem or purchase Bonds prior to maturity. Rental payments due under this Section 3 shall be 4 reduced to the extent such payments are allocable to the Bonds redeemed or purchased by the Lessor with such Additional Rentals. The Lessee shall be considered as having an ownership interest in the Leased Premises valued at an amount equal to the amount of the Additional Rentals paid pursuant to this subsection (b)(iii). (iv) In the event that the Trustee (as defined below) gives notice to the Lessee, pursuant to the terms of the Indenture (as defined below), that the amount on deposit or credited to the Debt Service Reserve Fund (as defined in the Indenture) is less than the Reserve Requirement (as defined in the Indenture), the Lessee shall levy the special benefits tax in an amount necessary to provide a sufficient amount of Special Tax Revenues in order to pay as Additional Rentals the amount required to restore the amount on deposit or credited to the Debt Service Reserve Fund to an amount equal to the Reserve Requirement. (c) Source of Payment of Rentals. The Fixed Annual Rentals and the Additional Rentals shall be payable solely from the revenues derived from the special benefits tax levied by the Lessee pursuant to Indiana Code 36- 7 -14 -27 (the "Special Tax Revenues "). The Lessee may pay the Fixed Annual Rentals and the Additional Rentals or any other amounts due hereunder from any other revenues legally available to the Lessee, including, but not limited to, incremental property tax revenues received by the Lessee from one or more allocation areas in the District pursuant to Indiana Code 36- 7- 14 -39; provided, however, the Lessee shall be under no obligation to pay any Fixed Annual Rentals or Additional Rentals or any other amounts due hereunder from any moneys or properties of the Lessee, except the Special Tax Revenues received by the Lessee. 4. Payment of Rentals. (a) The first lease rental payment shall be due on the later of (i) the date the Real Estate is acquired by the Lessor, or (ii) a date to be determined at the time of the sale of the Bonds, but no earlier than January 15, 2013, as set forth in the addendum referred to in Section 3(a) above. If the first rental payment date on the Leased Premises is on a date which is other than January 15 or July 15, the first rental payment shall be for an amount calculated at the rate for that Semi - annual Period from the date of payment to the next January 15 or July 15. Thereafter, rentals on the Leased Premises shall be payable in advance in semi- annual installments on January 15 and July 15 of each year. The last semi - annual rent payment on the Leased Premises due shall be adjusted to provide for a rental payment at the rate specified above from the date such installment is due to the expiration of this Lease. (b) All rentals payable under the terms of this Lease shall be paid by the Lessee to the bank designated as trustee ( "Trustee ") under the Trust Indenture between it and the Lessor ( "Indenture "), or to such other bank or trust company as may from time to time succeed such bank as Trustee under the Indenture securing the Bonds to be issued by the Lessor to finance the acquisition and construction of the Leased Premises. Any successor trustee under the Indenture shall be endorsed on this Lease at the end hereof by the parties hereto as soon as possible after selection, and such endorsement shall be recorded as an addendum to this Lease. All payments so made by the Lessee shall be considered as payment to the Lessor of the rentals payable hereunder. 5. Abatement of Rent. (a) If any part of the Leased Premises is taken under the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use or 5 occupancy by the Lessee, it shall then be the obligation of the Lessor to restore and rebuild that portion of the Leased Premises as promptly as may be done, unavoidable strikes and other causes beyond the control of the Lessor excepted; provided, however, that the Lessor shall not be obligated to expend on such restoration or rebuilding more than the condemnation proceeds received by the Lessor. (b) If any part of the Leased Premises shall be partially or totally destroyed, or is taken under the exercise of the power of eminent domain, so as to render it unfit, in whole or part, for use or occupancy by the Lessee, the rent shall be abated for the period during which the Leased Premises or such part thereof is unfit or unavailable for use or occupancy, and the abatement shall be in proportion to the percentage of the Leased Premises which is unfit or unavailable for use or occupancy. 6. Maintenance, Alterations and Repairs. The Lessee shall be responsible for operation, maintenance and repair of the Leased Premises; provided, however, the Lessee may enter into agreements with one or more other parties for the operation, maintenance, repair and alterations of all or any portion of the Leased Premises (the "Maintenance and Use Agreements "). Such other parties may assume all responsibility for operation, maintenance, repairs and alterations to the Leased Premises. At the end of the term of this Lease, the Lessee shall deliver the Leased Premises to the Lessor in as good condition as at the beginning of the term, reasonable wear and tear only excepted. 7. Insurance. During the full term of this Lease, the Lessee shall, at its own expense, carry combined bodily injury insurance, including accidental death, and property damage insurance with reference to the Leased Premises in an amount not less than One Million Dollars ($1,000,000) on account of each occurrence with one or more good and responsible insurance companies. Such public liability insurance may be by blanket insurance policy or policies. The proceeds of the public liability insurance required herein (after payment of expenses incurred in the collection of such proceeds) shall be applied toward extinguishment or satisfaction of the liability with respect to which such insurance proceeds are paid. Such policies shall be for the benefit of persons having an insurable interest in the Leased Premises, and shall be made payable to the Lessor, the Lessee, and the Trustee and to such other person or persons as the Lessor may designate. Such policies shall be countersigned by an agent of the insurer who is a resident of the State of Indiana and deposited with the Lessor and the Trustee. If, at any time, the Lessee fails to maintain insurance in accordance with this Section, such insurance may be obtained by the Lessor and the amount paid therefor shall be added to the amount of rentals payable by the Lessee under this Lease; provided, however, that the Lessor shall be under no obligation to obtain such insurance and any action or non- action of the Lessor in this regard shall not relieve the Lessee of any consequence of its default in failing to obtain such insurance. The insurance policies described in this Section 7 may be acquired by another party and shall satisfy this Section as long as the Lessor, the Lessee and the Trustee are named as additional insureds under such policies. Such coverage may be provided by scheduling it under a blanket insurance policy or policies. 6 8. Eminent Domain. If title to or the temporary use of the Leased Premises, or any part thereof, shall be taken under the exercise or the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, any net proceeds received from any award made in such eminent domain proceedings (after payment of expenses incurred in such collection) shall be paid to and held by the Trustee under the Indenture. Such proceeds shall be applied in one or more of the following ways: (a) The restoration of the Leased Premises to substantially the same condition as it existed prior to the exercise of that power of eminent domain, or (b) The acquisition, by construction or otherwise, of other improvements suitable for the Lessee's operations on the Leased Premises and which are in furtherance of the purposes of the Act (the improvements shall be deemed a part of the Leased Premises and available for use and occupancy by the Lessee without the payment of any rent other than as herein provided, to the same extent as if such other improvements were specifically described herein and demised hereby). Within ninety (90) days from the date of entry of a final order in any eminent domain proceedings granting condemnation, the Lessee shall direct the Lessor and the Trustee in writing as to which of the ways specified in this Section the Lessee elects to have the net proceeds of the condemnation award applied. Any balance of the net proceeds of the award in such eminent domain proceedings not required to be applied for the purposes specified in subsections (a) or (b) above shall be deposited in the sinking fund held by the Trustee under the Indenture and applied to the repayment of the Bonds. The Lessor shall cooperate fully with the Lessee in the handling and conduct of any prospective or pending condemnation proceedings with respect to the Leased Premises or any part thereof and will to the extent it may lawfully do so permit the Lessee to litigate in any such proceedings in its own name or in the name and on behalf of the Lessor. In no event will the Lessor voluntarily settle or consent to the settlement of any prospective or pending condemnation proceedings with respect to the Leased Premises or any part thereof without the written consent of the Lessee, which consent shall not be unreasonably withheld. 9. General Covenant. The Lessee shall not assign this Lease or mortgage, pledge or sublet the Leased Premises herein described, except as provided in Section 6, without the written consent of the Lessor. If the Lessee contracts with one or more other parties pursuant to one or more Maintenance and Use Agreements, the Lessee shall require such other parties to use and maintain the Leased Premises in accordance with the laws, regulations and ordinances of the United States of America, the State of Indiana, the City and all other proper governmental authorities. 10. Tax Covenants. In order to preserve the exclusion of interest any series of Bonds from gross income for federal income tax purposes (the "Tax- Exempt Bonds ") and as an inducement to purchasers of the Tax - Exempt Bonds, the Lessee and the Lessor represent, covenant and agree that: 7 (a) The Lessor and the Lessee will not take any action or fail to take any action with respect to the Tax - Exempt Bonds that would result in the loss of the exclusion from gross income for federal income tax purposes of interest on' the Tax - Exempt Bonds pursuant to Section 103 of the Code and the regulations thereunder as applicable to the Tax - Exempt Bonds, including, without limitation, the taking of such action as is necessary to rebate or cause to be rebated arbitrage profits on Tax - Exempt Bond proceeds, or other monies treated as Tax - Exempt Bond proceeds, to the federal government as provided in Section 148 of the Code. (b) The Lessor will file an information report on Form 8038 -G with the Internal Revenue Service as required by Section 149 of the Code. (c) The proceeds from the sale of the Tax - Exempt Bonds, proceeds received from lease rentals payable according to this Lease, any other amounts received by the Lessor in respect to property directly or indirectly financed with any proceeds of such Tax - Exempt Bonds, and proceeds from interest earned on the investment and reinvestment of such proceeds and amounts, shall not be invested or otherwise used in a manner which would cause such Tax - Exempt Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code and the regulations thereunder as applicable to the Tax - Exempt Bonds. The covenants in this Section are based solely on current law in effect and in existence on the date of issuance of the Tax - Exempt Bonds. It shall not be an event of default under this Lease if interest on any Tax - Exempt Bonds is not excludable from gross income pursuant to any provision of the Code which is not in existence and in effect on the issue date of the Tax - Exempt Bonds. Notwithstanding any other provisions hereof, the foregoing covenants and authorizations (the "Tax Sections ") which are designed to preserve the exclusion of interest on the Tax - Exempt Bonds from gross income under federal income tax law (the "Tax Exemption ") need not be complied with if the Lessor or the Lessee receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the Tax Exemption. Notwithstanding any other provision hereof, the Lessor may elect to issue any series of the Bonds, the interest on which is not excludable from gross income for federal tax purposes, so long as such election does not adversely affect the exclusion from gross income of interest for federal tax purposes on the Tax - Exempt Bonds, by making such election on the date of delivery of such series of Bonds. In such case, the tax covenants in this Lease shall not apply to such series of Bonds. All officers, members, employees and agents of the Lessor and the Lessee are authorized to provide certifications of facts and estimates that are material to the reasonable expectations of the Lessor and the Lessee as of the date any series of Bonds are issued and to enter into covenants on behalf of the Lessor and the Lessee evidencing the Lessor's and the Lessee's commitments made herein. In particular, all or any members or officers of the Lessor and the Lessee are authorized to certify and enter into covenants regarding the facts and circumstances and reasonable expectations of the Lessor and the Lessee on the date any series of Bonds are issued and the commitments made by the Lessor and the Lessee herein regarding the amount and use of the proceeds of the Bonds. 8 11. Option to Renew. The Lessor hereby grants to the Lessee the right and option to renew this Lease for a further like or lesser term upon the same or like conditions as herein contained, and applicable to the portion of the premises for which the renewal applies, and the Lessee shall exercise this option by written notice to the Lessor, and to the other parties to any Maintenance and Use Agreements at the addresses set forth in the respective Maintenance and Use Agreements (if any), given upon any rental payment date prior to the expiration of this Lease. 12. Option to Purchase. The Lessor hereby grants to the Lessee the right and option, on any date, upon sixty (60) days' written notice to the Lessor, to purchase the Leased Premises, or any portion thereof, at a price equal to the amount required to pay all indebtedness incurred on account of the Leased Premises, or such portion thereof (including indebtedness incurred for the refunding of that indebtedness), including all premiums payable on the redemption thereof and accrued and unpaid interest, and including the proportionate share of the expenses and charges of liquidation, if the Lessor is to be then liquidated. In no event, however, shall such purchase price exceed the capital actually invested in such property by the Lessor represented by outstanding securities or existing indebtedness plus the cost of transferring the property and liquidating the Lessor. The phrase "capital actually invested" as used herein shall be construed to include, but not by way of limitation, the following amounts expended by the Lessor in connection with the acquisition and financing of the Leased Premises: organization expenses, financing costs, carry charges, legal fees, architects' fees and reasonable costs and expenses incidental thereto. Upon request of the Lessee made not less than sixty (60) days prior thereto, the Lessor agrees to furnish an itemized statement setting forth the amount required to be paid by the Lessee on the date selected for purchase in order to purchase the Leased Premises in accordance with the preceding paragraph. Upon the exercise of the option to purchase granted herein, the Lessor will upon payment of the option price deliver, or cause to be 'delivered, to the Lessee documents conveying to the Lessee, or any entity (including the City and any other party to the Maintenance and Use Agreements) designated by the Lessee, all of the Lessor's title to the property being purchased, as such property then exists, subject to the following: (i) those liens and encumbrances (if any) to which title to the property was subject when conveyed to the Lessor; (ii) those liens and encumbrances created by the Lessee and to the creation or suffering of which the Lessee consented, and liens for taxes or special assessments not then delinquent; and (iii) those liens and encumbrances on its part contained in this Lease. In the event of purchase of the Leased Premises by the Lessee or conveyance of the Leased Premises to the Lessee or the Lessee's designee, the Lessee shall procure and pay for all surveys, title searches, abstracts, title policies and legal services that may be required, and shall furnish at the Lessee's expense all documentary stamps or tax payments required for the transfer of title. Nothing contained herein shall be construed to provide that the Lessee shall be under any obligation to purchase the Leased Premises, or under any obligation respecting the creditors, members or security holders of the Lessor. 13. Transfer to Lessee. If the Lessee has not exercised its option to renew in accordance with the provisions of Section 11, and has not exercised its option to purchase the 9 Leased Premises, or any portion thereof, in accordance with the provisions of Section 12, and upon the full discharge and performance by the Lessee of its obligations under this Lease, the Leased Premises, or such portion thereof remaining, shall thereupon become the absolute property of the Lessee, subject to the limitations, if any, on the conveyance of the site for the Leased Premises to the Lessor and, upon the Lessee's request the Lessor shall execute proper instruments conveying to the Lessee, or to any entity (including the City and any other party to any Maintenance and Use Agreements) designated by the Lessee, all of Lessor's title to the Leased Premises, or such portion thereof. 14. Defaults. If the Lessee shall default (a) in the payment of any rentals or other sums payable to the Lessor hereunder, or in the payment of any other sum herein required to be paid for the Lessor; or (b) in the observance of any other covenant, agreement or condition hereof, and such default shall continue for ninety (90) days after written notice to correct such default; then, in any or either of such events, the Lessor may proceed to protect and enforce its rights by suit or suits in equity or at law in any court of competent jurisdiction, whether for specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy; or the Lessor, at its option, without further notice, may terminate the estate and interest of the Lessee hereunder, and it shall be lawful for the Lessor forthwith to resume possession of the Leased Premises and the Lessee covenants to surrender the same forthwith upon demand. The Lessor shall simultaneously furnish to any other party to any Maintenance and Use Agreements, at their respective addresses set forth in the Maintenance and Use Agreements, a copy of any notice of default sent to the Lessee. The exercise by the Lessor of the above right to terminate this Lease shall not release the Lessee from the performance of any obligation hereof maturing prior to the Lessor's actual entry into possession. No waiver by the Lessor of any right to terminate this Lease upon any default shall operate to waive such right upon the same or other default subsequently occurring. 15. Notices. Whenever either party shall be required to give notice to the other under this Lease, it shall be sufficient service of such notice to deposit the same in the United States mail, in an envelope duly stamped, registered and addressed to the other party or parties at the following addresses: (a) to Lessor: City of Carmel Redevelopment Authority, Attention: President, One Civic Square, Carmel, Indiana 46032; (b) to Lessee: City of Carmel Redevelopment Commission, Attention: President, One Civic Square, Carmel, Indiana 46032. The Lessor, the Lessee and the Trustee may by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. 16. Successors or Assigns. All covenants of this Lease, whether by the Lessor or the Lessee, shall be binding upon the successors and assigns of the respective parties hereto. 17. Construction of Covenants. The Lessor was organized for the purpose of acquiring, constructing, acquiring, equipping and renovating local public improvements and leasing the same to the Lessee under the provisions of the Act. All provisions herein contained shall be construed in accordance with the provisions of the Act, and to the extent of inconsistencies, if any, between the covenants and agreements in this Lease and the provisions of the Act, the Act shall be deemed to be controlling and binding upon the Lessor and the Lessee; 10 provided, however, any amendment to the Act after the date hereof shall not have the effect of amending this Lease. 11 IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed for and on their behalf on the date first written above. LESSOR: LESSEE: CITY OF CARMEL REDEVELOPMENT CITYOF CARMEL REDEVELOPMENT AUTHORITY COMMISSION By: By: President President ATTEST: ATTEST: Secretary- Treasurer Secretary 12 STATE OF INDIANA ) SS: COUNTY OF HAMILTON Before me, the undersigned, a Notary Public in and for this City and State, personally appeared Robert B. Bush II and Jack Badger, personally known to be the President and Secretary - Treasurer, respectively, of the City of Carmel Redevelopment Authority (the "Authority "), and acknowledged the execution of the foregoing Lease for and on behalf of the Authority. (Seal) WITNESS my hand and notarial seal this day of , 2012. (Written Signature) (Printed Signature) Notary Public My Commission expires: My county of residence is: 13 STATE OF INDIANA ) SS: COUNTY OF HAMILTON Before me, the undersigned, a Notary Public in and for this City and State, personally appeared William Hammer and Bradley F. Meyer, personally known to be the President and Secretary, respectively, of the City of Carmel Redevelopment Commission (the "Commission "), and acknowledged the execution of the foregoing Lease for and on behalf of the Commission. (Seal) WITNESS my hand and notarial seal this day of , 2012. (Written Signature) (Printed Signature) Notary Public My Commission expires: My county of residence is: I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. Bruce D. Donaldson This instrument was prepared by Bruce D. Donaldson, Barnes & Thornburg LLP, 11 South Meridian Street, Indianapolis, Indiana 46204. 14 EXHIBIT A DESCRIPTION OF THE PROJECTS The Projects consist of the acquisition by the Authority of the Real Estate, described on Exhibit B hereto, from the City, and the use by the City of the proceeds of such sale to (i) refund all or a portion of certain outstanding obligations of the City and /or the Lessee which are identified in Exhibit A to the ordinance of the Common Council of the City approving the terms of this Lease, and (ii) finance the projects described in Exhibit B to the ordinance of the Common Council of the City approving the terms of this Lease. EXHIBIT B DESCRIPTION OF REAL ESTATE The Real Estate generally consists of all or a portion of the existing Keystone Avenue right -of -way with a southern boundary at or near 116th Street and a northern boundary at or near U.S. 31 in the City. This general description will be replaced with a formal legal description of the Real Estate when all or a portion of the Real Estate has been acquired by the Lessor. EXHIBIT C FORM OF ADDENDUM TO LEASE BETWEEN CITY OF CARMEL REDEVELOPMENT AUTHORITY, LESSOR AND CITY OF CARMEL REDEVELOPMENT COMMISSION, LESSEE THIS ADDENDUM (this "Addendum "), entered into as of this day of , 20, by and between City of Carmel Redevelopment Authority, as lessor (the "Lessor "), and City of Carmel Redevelopment Commission, as lessee (the "Lessee "); WITNESSETH: WHEREAS, the Lessor and the Lessee have entered into a lease dated as of , 20 (the "Lease "); and WHEREAS, it is provided in the Lease that the date by which the Lessor acquires the Real Estate and the Leased Premises are available for use shall be endorsed thereon by the parties thereto; and WHEREAS, it is provided in the Lease that there shall be endorsed thereon the adjusted lease rental following the issuance of the Bonds (as defined in the Lease). NOW, THEREFORE, IT IS HEREBY AGREED, CERTIFIED AND STIPULATED by the parties to the Lease that (i) the Lessor has on this date acquired the Real Estate and the Lease Premises are available for use, and (ii) the adjusted lease rental is set forth on A ppendix I attached hereto. IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed for and on their behalf as of the day and year first above written. LESSOR: LESSEE: CITY OF CARMEL REDEVELOPMENT CITY OF CARMEL REDEVELOPMENT AUTHORITY COMMISSION President President ATTEST: ATTEST: Secretary- Treasurer Secretary STATE OF INDIANA ) SS: COUNTY OF HAMILTON Before me, the undersigned, a Notary Public in and for this City and State, personally appeared and , personally known to be the President and Secretary - Treasurer, respectively, of the City of Carmel Redevelopment Authority (the "Authority "), and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of the Authority. (Seal) WITNESS my hand and notarial seal this day of , 20 (Written Signature) (Printed Signature) Notary Public My Commission expires: My county of residence is: STATE OF INDIANA ) SS: COUNTY OF HAMILTON Before me, the undersigned, a Notary Public in and for this City and State, personally appeared and , personally known to be the President and Secretary, respectively, of the City of Carmel Redevelopment Commission (the "Commission "), and acknowledged the execution of the foregoing Addendum to Lease for and on behalf of the Commission. (Seal) WITNESS my hand and notarial seal this day of , 20. (Written Signature) (Printed Signature) Notary Public My Commission expires: My county of residence is: I affirm under the penalties of perjury, that 1 have taken reasonable care to redact each Social Security Number in this document, unless required by law. Bruce D. Donaldson This instrument was prepared by Bruce D. Donaldson, Barnes & Thornburg LLP, 11 South Meridian Street, Indianapolis, Indiana 46204. Barnes & Thornburg LLP Draft of 11/19/12 REVENUE DEPOSIT AGREEMENT Between CITY OF CARMEL, INDIANA, And CITY OF CARMEL REDEVELOPMENT COMMISSION Dated as of November 20, 2012 REVENUE DEPOSIT AGREEMENT This REVENUE DEPOSIT AGREEMENT, dated as of November 20, 2012 (the "Agreement "), is being entered into between the CITY OF CARMEL, INDIANA (the "City "), a political subdivision duly created and validly existing under the laws of the State of Indiana (the "State "), and the CITY OF CARMEL REDEVELOPMENT COMMISSON (the "Commission "), as governing body of the City of Carmel Redevelopment District (the "District "), a special taxing district duly created and validly existing under the laws of the State (each, a "Party" and, collectively, the "Parties "). WITNESSETH WHEREAS, the Commission, as the governing body for the District pursuant to the Act (as hereinafter defined), has previously created the Allocation Areas described in Exhibit A attached hereto in order to capture property tax proceeds derived from incremental assessed valuation of real and certain depreciable personal property in such Allocation Areas which is in excess of the "base assessed value" (such property tax proceeds hereinafter referred to as "TIF Revenue "), all pursuant to and as described in Sections 39 and 39.3 of the Act; and WHEREAS, the Commission has previously incurred certain obligations in order to finance certain improvements located in or serving or benefitting one or more of the Allocation Areas; and WHEREAS, the Commission reasonably expects to repay such obligations from TIF Revenue to be received from the Allocation Areas; and WHEREAS, the City and the Commission desire to establish a procedure for setting aside the TIF Revenue as and when received to ensure the timely payment of such obligations as the same shall become due in accordance with their respective terms; NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the Parties now desire to enter into this Agreement and hereby agree as follows: 1 ARTICLE I DEFINITIONS The following words and phrases shall have the following meanings, unless the context or use clearly indicates another or different meaning or intent. Any terms defined in the Act or other Indiana statutes, but not otherwise defined herein, shall have the meanings specified in the Act or other Indiana statutes, unless the context or use clearly indicates another or different meaning or intent. "Act" means Indiana Code 36 -7 -14, Indiana Code 36 -7 -25, and all related and supplemental statutes conferring powers or authority on the Commission. "Allocation Areas" means, collectively; the allocation areas identified on Exhibit A attached hereto and made a part hereof, which have been previously established by the Commission in accordance with the Act for the purposes of capturing TIF Revenue. "Allocation Funds" means, collectively, the allocation funds previously established by the Commission in accordance with the Act for each of the allocation areas identified on Exhibit A hereto, for the TIF Revenue collected in the respective Allocation Areas. "Auditor" shall mean the Auditor of Hamilton County, Indiana. "Business Day" or "business day" means a day other than Saturday, Sunday or day on which banking institutions in the city in which the principal corporate trust office of the Deposit Trustee is located are required or authorized by law to close or on which the New York Stock Exchange is closed. "City" shall mean the City of Carmel, Indiana. "Clerk- Treasurer" means the Clerk- Treasurer of the City. "Commission" means the City of Carmel Redevelopment Commission, governing body of the District. "District" means the City of Carmel Redevelopment District. "Payment Date" means (i) with respect to the 2010C COPs, January 15 and July 15 of each year, (ii) with respect to the 2005 Bonds, January 1 and July 1 of each year, and (iii) with respect to the 2012 Bonds, January 15 and July 15 of each year. "State" shall mean the State of Indiana. "TIF Revenue" means the property tax proceeds received by the Commission, which the Commission reasonably expects to use for the repayment of the 2010C COPs, the 2012 Bonds and the 2005 Bonds when due, which proceeds are derived from the incremental assessed valuation of real and certain depreciable personal property in the Allocation Areas in excess of the assessed valuation described in Section 39(b)(1) of the Act, as such statutory provision exists 2 on the date of execution of this Agreement. "2005 Bonds" shall mean the City of Carmel, Indiana, Redevelopment Authority Lease Rental Revenue Bonds, Series 2005, dated December 21, 2005, issued in the original aggregate issued amount of $79,998,227.15. "2010C COPs" shall mean the City of Carmel, Indiana, Redevelopment District Certificates of Participation, Series 2010C, dated November 12, 2010, issued in the original aggregate principal amount of $16,300,000. "2012 Bonds" shall mean, collectively, the City of Carmel, Indiana, Redevelopment Authority Lease Rental Revenue Multipurpose Bonds, Series 2012 A, and the City of Carmel, Indiana, Redevelopment Authority Lease Rental Revenue Multipurpose Bonds, Series 2012 B (Taxable), anticipated to be issued in December 2012. "Transaction Documents" means, collectively, any trust indenture, installment payment contract, loan agreement, lease agreement or other instrument which has been previously executed by the Commission or the City of Cannel Redevelopment Authority in connection with the 2010C COPs, the 2005 Bonds and the 2012 Bonds. (End of Article I) 3 ARTICLE II FUNDS AND ACCOUNTS Section 2.1. Deposit of TIF Revenue. Upon the receipt of each distribution of TIF Revenue from the Auditor, the Clerk- Treasurer shall set aside and transfer the TIF Revenue as follows: (a) First, the Clerk- Treasurer shall transfer to the paying agent for the 2010C COPs an amount of TIF Revenue equal to the lesser of: (i) all of such semi - annual distribution of TIF Revenue, or (ii) an amount of TM Revenue sufficient to pay all amounts due with respect to the 2010C COPs on the immediately succeeding Payment Date, in accordance with the schedule set forth in Exhibit B hereto; provided, however, in making any such transfers pursuant to this Section, the Clerk- Treasurer shall take into account any other revenues or funds previously transferred by, or on behalf of, the Commission to the paying agent for the 2010C COPs and held by the paying agent to pay debt service on such Payment Date. (b) Second, the Clerk- Treasurer shall transfer to the bond trustee for the 2012 Bonds an amount of TIF Revenue equal to the lesser of: (i) all of the remainder of such semi - annual distribution of TIF Revenue, or (ii) an amount of TIF Revenue sufficient to pay all amounts due with respect to the 2012 Bonds on the immediately succeeding Payment Date, in accordance with the schedule set forth in Exhibit C hereto (to be completed and attached immediately following the sale of the 2012 Bonds); provided, however, in making any such transfers pursuant to this Section, the Clerk - Treasurer shall take into account any other revenues or funds previously transferred by, or on behalf of, the Commission to the trustee for the 2012 Bonds and held by the trustee to pay debt service on such Payment Date. (c) Third, the Clerk- Treasurer shall transfer to the bond trustee for the 2005 Bonds an amount of TIF Revenue equal to the lesser of: (i) all of the remainder of such semi - annual distribution of TIF Revenue, or (ii) an amount of TIF Revenue sufficient to pay all amounts due with respect to the 2005 Bonds on the immediately succeeding Payment Date, in accordance with the schedule set forth in Exhibit D hereto; provided, however, in making any such transfers pursuant to this Section, the Clerk - Treasurer shall take into account any other revenues or funds previously transferred by, or on behalf of, the Commission to the trustee for the 2005 Bonds and held by the trustee to pay debt service on such Payment Date. Section 2.2. Excess TIF Revenue. In the event that there shall be any remaining TIF Revenue after making the deposits required by Section 2.1 hereof, the Clerk - Treasurer shall retain such funds in the respective Allocation Funds to be used for the purposes permitted by the Act. Section 2.3. Notice of Deficiency. In the event that any semi - annual distribution received by the Clerk- Treasurer shall be insufficient to make all of the deposits required by Section 2.1 to pay all amounts due with respect to the 2010C COPs, the 2012 Bonds and the 4 2005 Bonds on the immediately succeeding Payment Date for each such obligation, in accordance with the schedules set forth in Exhibits B, C and D hereto, after taking into account other revenues or funds contributed by the Commission for such purpose, the Clerk - Treasurer shall within three (3) business days provide written notification to the Mayor and Common Council of the City and to the Commission of such deficiency. Section 2.4. Supplemental Reserve Fund. The City and the Commission hereby agree (a) to take the legal steps necessary to amend the economic development plan for the Parkwood Economic Development Area to make funding a supplemental reserve fund for the 2005 Bonds and the 2012 Bonds a permitted use of tax increment revenues generated from that area, and (b) to fund the supplemental reserve fund beginning in 2014 with all of such tax increment revenues on an annual basis so long as the 2005 Bonds or the 2012 Bonds remain outstanding, until and unless this Agreement is amended in accordance with the requirements of Section 3.5. This agreement to fund a supplemental reserve fund shall not run to the benefit of the holders of the 2005 Bonds or the 2012 Bonds and shall not be formally pledged to secure the 2005 Bonds or the 2012 Bonds, but rather shall serve as an additional protection against the potential levy of a special benefits tax to pay the lease payments that fund debt service on the 2005 Bonds and the 2012 Bonds. (End of Article II) 5 ARTICLE III MISCELLANEOUS Section 3.1. Governing Law. This Agreement is executed by the Parties and delivered in the State and with reference to the laws thereof, and the rights of all Parties and the validity, construction and effect of every provision hereof shall be subject to and construed according to the laws of the State. Section 3.2. Immunity of Officers, Directors, Members, Employees and Agents. No recourse shall be had for any claim based upon any obligation in this Agreement against any past, present or future official, officer, director, member, attorney, employee or agent of the Parties, as such, under any rule of law or equity, statute or constitution. Section 3.3. Counterparts. This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original, and such counterparts, together, shall constitute but one and the same instrument, which shall be sufficiently evidenced by any such original counterpart. Section 3.4. Performance Due on Day other than a Business Day. If the last day for taking any action under this Agreement is not on a Business Day, such action may be taken on the next succeeding Business Day and, if so taken, shall have the same effect as if taken on the day required by this Agreement. Section 3.5. Amendments. This Agreement may be terminated, supplemented or amended only upon the written agreement of the City and the Commission and only after approvals of the Common Council of the City and the Commission. Section 3.6. Entire Agreement. This Agreement shall constitute the entire agreement of the Parties with respect to the subject matter, and shall supersede all prior oral or written agreements with respect to the matters that are the subject hereof. Section 3.7. Interpretation of Conflicting Provisions. In the event there shall be a conflict between any provision of the Transaction Documents and any provision of this Agreement, the City and the Commission hereby agree that the provisions of such Transaction Document shall be controlling, unless the terms of any of such Transaction Documents shall expressly provide otherwise. Section 3.8. Effective Date. This Agreement shall take effect immediately upon the execution of a binding bond purchase agreement for the purchase and sale of the 2012 Bonds. (End of Article III) 6 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their names and on their behalf as of the date first written above. Attest: By: Diana L. Cordray, Clerk - Treasurer Attest: By: Brad Meyer, Secretary 7 CITY OF CARMEL, INDIANA By: James Brainard, Mayor CITY OF CARMEL, INDIANA, REDEVELOPMENT COMMISSION, as governing body of the City of Carmel Development District By: William Hammer, President EXHIBIT A LIST OF ALLOCATION AREAS Amended 126th Street Allocation Area Amended 126th Street Expansion Allocation Area City Center Allocation Area City Center Expansion Allocation Area Hazel Dell North Allocation Area Hazel Dell South Allocation Area Illinois Street Allocation Area Illinois Street Expansion Allocation Area Amended Illinois Street Allocation Area Old Meridian Allocation Area Old Meridian Expansion Allocation Area Meridian & Main Allocation Area (less developer portion) Old Town Allocation Area Carmel Drive Allocation Area Lauth- Walker Allocation Area Old Town Shoppes Allocation Area Old Methodist Allocation Area Lurie Allocation Area Village of West Clay Allocation Area Merchants Pointe Allocation Area 116`h Street Centre Allocation Area (less developer portion) Carmel Downtown Allocation Area No. 1 (less developer portion) Carmel Downtown Allocation Area No. 2 (less developer portion) CRC Parcel #12 Allocation Area EXHIBIT B OUTSTANDING AMORTIZATION OF CERTIFICATES OF PARTICIPATION, SERIES 2010C Dated November 12, 2010 Payment Principal Date Outstanding Principal Interest Rate Interest Total Budget Year Debt Service Debt Service 07/15/12 $16,300,000 5512,98750 $512,987.50 01/15/13 16,300,000 $170,000 (I) 5.750% 512,987.50 682,987.50 $1,195,975.00 07/15/13 16,130,000 175,000 ( I ) 5.750% 508,100.00 683,100.00 01/15/14 15,955,000 180,000 (1) 5.750% 503,068.75 683,068.75 1,366,168.75 07/15/14 15,775,000 185,000 (1) 5.750% 497,893.75 682,893.75 01/15/15 15,590.000 190,000 ( I ) 5.750% 492,575.00 682,575.00 1,365,468.75 07/15/15 15,400,000 195,000 (1) 5.750% 487,112.50 682,112.50 01/15/16 15,205,000 200,000 (1) 5.750% 481,506 25 681,506 25 1,363,618.75 07/15/16 15,005,000 205,000 (1) 5.750% 475,756.25 680,756.25 01/15/17 14,800,000 210,000 (1) 5.750% 469,862.50 679,862.50 1,360,618.75 07/15/17 14,590,000 215,000 (1) 5.750% 463,825.00 678,825.00 01/15/18 14,375,000 225,000 (1) 5.750% 457,643.75 682,643.75 1,361,468.75 07/15/18 14,150,000 230,000 (1) 5.750% 451,175.00 681,175,00 01/15/19 13,920,000 235,000 (1) 5.750% 444,562.50 679,562.50 1,360,737.50 07/15/19 13,685,000 245,000 ( I ) 5.750% 437,806.25 682,806.25 01/15/20 13,440,000 250,000 (1) 5.750% 430,762.50 680,762.50 1,363,568.75 07/15/20 13,190,000 255,000 (I) 5.750% 423,575.00 678,575.00 01/15/21 12,935,000 265,000 (1) 5.750% 416,243.75 681,243.75 1,359,818.75 07/15/21 12,670,000 270,000 (1) 5.750% 408,625.00 678,625.00 01/15/22 I2,400,000 280,000 (1) 5.750% 400,862.50 680,862.50 1,359,487.50 07/15/22 12,120,000 290,000 (1) 5.750% 392,812.50 682,812.50 01/15/23 11,830,000 295.000 (2) 6.500% 384,475.00 679,475,00 1,362,287.50 07/15/23 11,535,000 305,000 (2) 6.500% 374,887.50 679,887.50 01/15/24 11,230,000 315.000 (2) 6.500% 364,975.00 679,975.00 1,359,862.50 07/15/24 10,915,000 325.000 (2) 6.500% 354,737.50 679,737.50 01/15/25 10,590,000 335,000 (2) 6.500% 344,175.00 679,175.00 1,358,912.50 07/15/25 10,255,000 350,000 (2) 6.500% 333,287.50 683,287.50 01/15/26 9,905,000 360,000 (2) 6.500% 321,912.50 681,912.50 1,365,200.00 07/15/26 9,545,000 370,000 (2) 6.500% 310,212.50 680,212.50 01/15/27 9,175,000 385,000 (2) 6.500% 298,187.50 683,187.50 1,363,400.00 07/15/27 8,790,000 395,000 (2) 6.500% 285,675.00 680,675.00 01/15/28 8,395,000 410,000 (2) 6.500% 272,837.50 682,837.50 1,363,512.50 07/15/28 7,985,000 420,000 (2) 6.500% 259,512.50 679,512.50 01/15/29 7,565,000 435,000 (2) 6.500% 245,862.50 680,862.50 1,360,375.00 07/15/29 7,130,000 450,000 (2) 6.500% 231,725.00 681,725.00 01/15/30 6,680,000 465,000 (2) 6.500% 217,100.00 682,100.00 1,363,825.00 07/15/30 6,215,000 480,000 (2) 6.500% 201,987.50 681,987.50 01/15/31 5,735,000 495,000 (2) 6.500% 186,387.50 681,387.50 1,363.375.00 07/15/31 5,240,000 510,000 (2) 6.500% 170,300.00 680,300.00 01/15/32 4,730,000 525.000 (2) 6.500% 153,725.00 678,725.00 1,359,025.00 07/15/32 4,205,000 545,000 (2) 6.500% 136,662.50 681,662.50 01/15/33 3,660,000 560,000 (2) 6.500% 118,950.00 678,950.00 1,360,612.50 07/15/33 3,100,000 580,000 (2) 6.500% 100,750.00 680,750.00 01/15/34 2,520,000 600,000 (2) 6.500% 81,900.00 681,900.00 1,362,650.00 07/15/34 1,920,000 620,000 (2) 6.500% 62,400.00 682,400.00 01/15/35 1,300,000 640,000 (2) 6.500% 42,250.00 682,250.00 1,364,650.00 07/15/35 660,000 660,000 (2) 6.500% 21,450.00 681,450.00 681,450.00 Totals $16,300,000 $15,546.068.75 (1) $4,470,000 of Term Certificates due July 15, 2022. (2) $11,830,000 of Term Certificates due July 15, 2035. $31,846,068.75 $31,846,068.75 EXHIBIT C SCHEDULE OF 2012 BOND PAYMENT OBLIGATIONS [To be provided EXHIBPT D OUTSTANDING LEASE RENTAL PAYMENTS OF LEASE RENTAL REVENUE BONDS OF 2005 Dated December 21, 2005 Bond Lease Debt Service L ease Rental Payment Payment Current Interest Capital Appreciation Budget Year Budget Year Date Date Bonds Bonds Total Total Total Total 8/1/2012 7/1/2012 51,295,000.00 51,295,000.00 $2,600,000 2/1/2013 1/1/2013 1,295,000.00 $2,605,000.00 3,900.000.00 55,195,000.00 $5,200.000 2.600,000 8/1/2013 7/1/2013 1,295,000.00 1,295,000.00 2,745,000 2/1/2014 1/1/2014 1.295,000.00 2,895,000.00 4,190,000.00 5,485,000.00 5,490.000 2,745,000 8/1/2014 7/1/2014 1,295,000.00 1,295,000.00 2,887,500 2/1/2015 1/1/2015 1,295,000.00 3,180,000.00 4,475,000.00 5,770,000.00 5,775,000 2,887,500 8/1/2015 7/1/2015 1,295,000.00 1,295,000.00 3,027,500 2/1/2016 1/1/2016 1,295,000.00 3,460,000.00 4,755,000.00 6,050,000.00 6,055.000 3.027,500 8/1/2016 7/1/2016 1,295.000.00 1,295,000.00 3,162,500 2/1/2017 1/1/2017 1,295,000.00 3,730,000.00 5,025,000.00 6,320.000.00 6,325.000 3,162,500 8/1/2017 7/1/2017 1,295,000.00 1,295,000.00 3,290,000 2/1/2018 1/1/2018 1,295,000.00 3,985,000.00 5,280,000.00 6,575.000.00 6,580.000 3,290,000 8/1/2018 7/1/2018 1,295,000.00 1,295,000.00 3,417,500 2/1/2019 1/1/2019 1,295,000.00 4,240,000.00 5,535,000.00 6,830,000.00 6,835.000 3,417,500 8/1/2019 7/1/2019 1,295,000.00 1,295,000.00 4,032,500 2/1/2020 1/1/2020 1,295,000.00 5,470,000.00 6.765,000.00 8,060,000.00 8,065,000 4,032,500 8/1/2020 7/1/2020 1,295,000.00 1,295,000.00 4,155,000 2/1/2021 1/1/2021 1,295,000.00 5,715,000.00 7,010,000.00 8,305.000.00 8,310,000 4,155,000 8/1/2021 7/1/2021 1,295,000.00 1,295,000.00 4,280,000 2/1/2022 1/1/2022 1,295,000.00 5,965,000.00 7,260,000.00 8,555,000.00 8,560.000 4,280,000 8/1/2022 7/1/2022 1,295,000.00 1.295,000.00 4,427,500 2/1/2023 1/1/2023 1,295,000.00 6,260.000.00 7,555,000.00 8,850,000.00 8,855,000 4,427,500 8/1/2023 7/1/2023 1,295,000.00 1,295,000.00 5,182,500 2/1/2024 1/1/2024 1,295,000.00 7,770,000.00 9.065,000.00 10,360,000.00 10,365,000 5,182,500 8/1/2024 7/1/2024 1,295,000.00 1.295,000.00 5,702.500 2/1/2025 1/1/2025 1,295,000.00 8,810,000.00 10.105,000.00 11,400,000.00 11,405,000 5,702,500 8/1/2025 7/1/2025 1,295,000.00 1,295,000,00 5,732,500 2/1/2026 1/1/2026 7,365,000.00 2,800,000.00 10,165,000.00 11,460,000.00 11,465,000 5,732,500 8/1/2026 7/1/2026 1,143,250.00 1,143,250.00 5,778,500 2/1/2027 1/1/2027 10,408,250.00 10.408,250.00 11,551.500.00 11,557,000 5,778,500 8/1/2027 7/1/2027 911,625.00 911,625.00 5,827,000 2/1/2028 1/1/2028 10,736,625.00 10,736,625.00 11.648,250.00 11,654.000 5,827,000 8/1/2028 7/1/2028 666,000.00 666,000.00 5,873,500 2/1/2029 1/1/2029 11,076,000.00 11,076,000.00 11,742,000.00 11,747,000 5,873,500 8/1/2029 7/1/2029 405,750.00 405,750.00 2,323,500 2/1/2030 1/1/2030 4,235,750.00 4,235.750.00 4.641,500.00 4,647,000 2,323,500 8/1/2030 7/1/2030 312,287.50 312,287.50 2,340,000 2/1/2031 1/1/2031 4,362,287.50 4,362,287.50 4,674,575.00 4,680,000 2,340.000 8/1/2031 7/1/2031 213,600.00 213,600.00 2,351,500 2/1/2032 1/1/2032 4,483,600.00 4,483,600.00 4,697,200.00 4,703,000 2,351,500 8/1/2032 7/1/2032 109,687.50 109,687.50 2,352,500 2/1/2033 1/1/2033 4,589,687.50 4,589,687.50 4.699,375.00 4,705,000 2,352,500 Totals 595,984,400.00 $66,885.000.00 $162.869,400.00 5162.869,400.00 5162,978,000 $162,978.000 PROJECT AGREEMENT First Component As Amended This Project Agreement (First Component) (the "Agreement "), executed this day of , 2012, by and among The City of Carmel Redevelopment Commission ( "CRC "), Carmel City Center, LLC ( "CCC "), and CCC Nash, LLC ( "CCC Nash "), Witnesses: Recitals WHEREAS, CRC, CCC, and VHC have executed the Remainder Project Agreement; WHEREAS, the First Component constitutes the first "Component" being constructed pursuant to the Remainder Project Agreement; WHEREAS, CRC acknowledges that CCC has conveyed the First Component Site to CCC Nash, which is an entity affiliated with CCC; WHEREAS, CCC and CCC Nash acknowledge that: (a) the First Component Site was conveyed to CCC Nash subject to the terms and conditions of the Remainder Project Agreement; and (b) CCC Nash has assumed all obligations of CCC under the Remainder Project Agreement with respect to the First Component Site; provided that, as specified in Section 14 of the Remainder Project Agreement, CCC has not been released from its liability to perform any or all of the terms and conditions to be performed by it under the Remainder Project Agreement; WHEREAS, because CCC was the owner of the First Component Site at the time that the Remainder Project Agreement was executed, and CCC Nash currently is the owner of the First Component Site, CCC and CCC Nash (as opposed to VHC) are entering into this Agreement; WHEREAS, notwithstanding that the Remainder Project Agreement contemplates that 100% of the approved estimated "New Improvements Increment" will be used to obtain "Public Improvements Financing ", the parties have agreed that: (a) in lieu of using the FC Increment to obtain "Public Improvements Financing ", construction of the Garage shall be funded with the Bond Proceeds; and (b) for purposes of the First Component, such funding with Bond Proceeds shall constitute a "Public Improvements Financing "; and WHEREAS, CRC, CCC, and CCC Nash have agreed to enter into this Agreement to more specifically refine the requirements of the Remainder Project Agreement, as applicable to the First Com ponent; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC, CCC, and CCC Nash agree as follows: 1. Defined Terms. Bonds shall mean the City of Carmel, Indiana, Redevelopment Authority Lease Rental Revenue Multipurpose Bonds Series 2012A and 2012B (Taxable). Bond Proceeds shall mean $2,000,000.00 of the proceeds of the Bonds, which proceeds are on deposit in the _ Fund of that certain Project Fund created by, and defined in, the Trust Indenture. The parties acknowledge that: (a) the total amount of the proceeds of the Bonds far exceed $2,000,000.00; and (b) for purposes of this Agreement, "Bond Proceeds" shall mean only $2,000,000.00 of the total amount of the proceeds of the Bonds. Catch -Up Plan shall mean a plan pursuant to which CCC Nash will: (a) avoid falling further behind the dates set forth in the FC Plan Schedule or the FC Construction Schedule for the design or construction of the First Component; and (b) complete the design and construction of the First Component in accordance with (and in no event more than 60 days behind) the date set forth in the FC Plan Schedule and the FC Construction Schedule. Change Order shall mean a change order executed by the Executive Director and CCC Nash finalizing the inclusion of a change into the FC Final Plans, which change has been: (a) proposed in a Change Order Request by CCC Nash; and (b) approved by CRC; provided that, in the case of a Permitted Change, such change order shall be effective if executed only by CCC Nash. Change Order Request shall mean a written request for a change to the FC Final Plans. City shall mean the City of Carmel, Indiana. Claims shall mean claims, liabilities, damages, losses, costs, and expenses (including, without limitation, attorneys' fees). Closing shall mean the closing with respect to the execution by CRC and CCC Nash of the FC Taxpayer Agreement. Closing Date shall mean the date of the Closing. Committed Construction Schedule shall mean the schedule attached to the Remainder Project Agreement as Exhibit D and defined in the Remainder Project Agreement as the "Committed Construction Schedule ". Construction Contract shall mean the contract with the General Contractor pursuant to which the First Component shall be constructed, which contract shall be subject to the reasonable approval of CRC. Construction Trade shall mean any trade or other discrete aspect of construction. Corrective Action Plan shall mean, with respect to a Garage Latent Defect: (a) a description of the corrective action to be taken with respect to the Garage Latent Defect; and (b) the schedule for completing such corrective action. CRA shall mean the City of Carmel, Indiana, Redevelopment Authority. Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition of this Agreement to be performed or observed by it receives notice specifying the nature of the failure; provided that, if the failure is of such a nature that it cannot be remedied within 30 days, despite reasonably diligent efforts, then the 30 day period shall be extended as reasonably may be necessary for the defaulting party to remedy the failure, so long as the defaulting party: (a) commences to remedy the failure within the 30 day period; and (b) diligently pursues such remedy to completion. Disbursement Request Form shall mean that certain Disbursement Request Form attached as an exhibit to the Trust Indenture. Event of Default shall have the meaning set forth in Subsection 11(a). Executive Director shall mean the Executive Director of CRC (currently Les Olds). FC Construction Drawings shall mean construction drawings for the First Component, which drawings shall be consistent with: (a) the approved FC Design Development Documents and FC Construction Schedule; and Z:\Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs\Parcel 5 -Nash Building - Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO 8. wpd -2- l5Novl2 (b) the Laws. FC Construction Schedule shall mean a detailed schedule for construction of the First Component in accordance with the FC Final Plans. As provided in the Remainder Project Agreement, such schedule shall be consistent with the Committed Construction Schedule, except to the extent that CRC consents otherwise. Upon approval of the FC Construction Schedule by CRC, the FC Construction Schedule shall control in the event of any inconsistency between the FC Construction Schedule and the Committed Construction Schedule. FC Design Development Documents shall mean detailed design development documents for the First Component, which documents shall be consistent with the approved FC Schematic Design Drawings and the Laws. FC Final Documents and Drawings shall mean final FC Schematic Design Drawings, final FC Design Development Documents, the final FC Construction Schedule, final FC Construction Drawings, and the final Garage Budget, as each is: (a) approved by CRC; and /or (b) modified by Change Orders; pursuant to the Plan Refinement Process. FC Final Plans shall mean the aggregated FC Final Documents and Drawings. FC Increment shall mean the allocated property tax proceeds (i.e., the "increment ") that, pursuant to IC §36- 7 -14 -9, are generated from ad valorem real property taxes levied or imposed on or against the First Component Site as a result of the construction of the Nash Building. The FC Increment is the portion of the "New Improvements Increment" under the Remainder Project Agreement that is attributable to the First Com ponent. FC Increment Estimate shall mean the estimated annual FC Increment, which estimate: (a) has been prepared by CCC Nash and submitted to the Financial Advisor; and (b) includes the projected: (i) assessed value of the First Component Site; and (11) tax rate that would be applied with respect to such projected assessed value. FC Plan Schedule shall mean the schedule in accordance with which CCC Nash shall prepare and provide to CRC the FC Design Development Documents, the FC Construction Schedule, the FC Construction Drawings, and the Garage Budget, which schedule is attached hereto as Exhibit B. To the extent that the FC Plan Schedule differs from the "Plan Schedule" under the Remainder Project Agreement, the FC Plan Schedule shall control. FC Schematic Design Drawings shall mean detailed schematic design drawings for the First Component, which drawings have been approved by CRC pursuant to the Remainder Project Agreement. FC Taxpayer Agreement shall mean an agreement by and between CRC and CCC Nash pursuant to which CCC Nash shall guarantee receipt of 100% of the FC Increment Estimate, which agreement shall: (a) have a term equal in length to the term of the Bonds; accordingly, the term of the FC Agreement shall continue until such time as the Bonds are repaid, refunded, redeemed, defeased, refinanced, and /or "taken out" in full; (b) include as an exhibit a schedule that shows, for each year during the term, the FC Increment Estimate; (c) obligate CCC Nash to make payments to CRC in an amount equal to the difference between: (i) 100% of the FC Increment Estimate (as set forth on the schedule attached thereto); and (ii) the amount of the FC Increment that actually is generated; Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building - lst Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -3- 15NovI2 (d) provide that the payments due by CCC Nash thereunder are secured either by: (i) a lien against the First Component that is similar in type to a lien for real estate taxes (including that such lien shall have the same priority as a lien for real estate taxes); (ii) a letter of credit that has been posted for the benefit of CRC, which letter of credit is on terms reasonably satisfactory to CRC; or (iii) such other form of credit as reasonably is satisfactory to CRC; (e) prohibit CCC Nash from challenging or appealing the assessed value of the First Component, to the extent that such challenge or appeal would cause such assessed value to be less than the projected assessed value set forth in the FC Increment Estimate. The FC Taxpayer Agreement is a "Taxpayer Agreement" under the Remainder Project Agreement. Final Inspection shall mean an inspection of the First Component (or a discrete aspect thereof) after substantial completion thereof. Financial Advisor shall mean the "Financial Advisor ", as determined pursuant to the Remainder Project Agreement. First Component shall mean the Nash Building, the Surface Parking Area, and the Garage, all as generally shown on the Site Plan. The First Component is a "Component" under the Remainder Project Agreement. First Component Site shall mean that certain real estate delineated as the "First Component Site" on the Site Plan. The First Component Site comprises a portion of the real estate defined in the Remainder Project Agreement as the "Parcel 5 Remainder Site ". Force Majeure shall mean, with respect to CCC, CCC Nash, or CRC: (a) an act or omission of the other party; or (b) any other cause that is not within the reasonable control of CCC, CCC Nash, or CRC, respectively (including, without limitation, unusually inclement weather, the unusual unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers). Garage shall mean an underground parking facility to be constructed on the First Component Site, together with garage entrances and exits, ramps and drives, elevator lobbies, and related facilities. The Garage is a "Parking Facility ", a "Public Improvement ", and a "Financed Improvement" under the Remainder Project Agreement. Garage Budget shall mean a detailed budget for the construction of the Garage in accordance with the FC Final Plans. Garage Latent Defect shall mean a Latent Defect with respect to the Garage. A Garage Latent Defect is both a "Parking Facility Latent Defect" and a "Financed Improvement Latent Defect" under the Remainder Project Agreement. Garage Substantial Completion shall mean the that the Garage has been substantially completed in accordance with the FC Final Plans and the Laws. General Contractor shall mean a general contractor selected by CCC Nash and approved by CRC, which approval shall not be withheld unreasonably. Inspecting Architect shall mean an architect designated by CRC as its inspecting architect. Inspection Period shall mean the period specified in an Inspection Request within which CRC and /or the Inspecting Architect shall: (a) conduct a Sample Work Inspection, as identified in the Inspection Request; and Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 - Remainder PA, Component Does, and COPs\Parcel 5 -Nash Building- 1st Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -4- 15Nov12 (b) deliver to CCC Nash a Non - Compliance Notice, if applicable; provided that such period shall be at least five business days after receipt of the Inspection Request from CCC Nash. Inspection Request shall mean a written request from CCC Nash for a Sample Work Inspection, which request shall identify the Sample Work Installation to be inspected by CRC and /or the Inspecting Architect. Latent Defect shall mean those material defects in the construction of the First Component that: (a) are not discovered; and (b) reasonably are not discoverable; by CRC or the Inspecting Architect during an inspection of the First Component. Laws shall mean all applicable laws, statutes, and /or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and /or decrees. Master Project Agreement shall have the meaning ascribed to such term in the Remainder Project Agreement. Material Defect shall mean any item or element of the First Component (including, without limitation, any item or component of a Sample Work Installation) that: (a) contains a material defect in workmanship or materials; (b) deviates materially from the FC Final Plans; or (c) has not been performed materially in accordance with the terms and conditions of this Agreement; provided that, with respect to a Monthly Inspection, a Permitted Inspection, or the Final Inspection, no item or element constructed or installed in accordance with: (i) a Sample Work Installation that has been accepted, or deemed to be accepted, by CRC; and (ii) the Laws; shall constitute a Material Defect. Monthly Inspection shall mean an inspection conducted by the Inspecting Architect each month during construction of the First Component. Nash Building shall mean a multi -story building and related facilities to be constructed on the First Component Site, which building will house retail facilities, dining options, offices, and /or residential facilities. The Nash Building: (a) is a "Building ", and a "New Improvement ", under the Remainder Project Agreement; and (b) will be in the location generally labeled as "1" on the site plan attached to the Remainder Project Agreement as Exhibit A and defined in the Remainder Project Agreement as the "Committed Site Plan ". Non - Compliance Notice shall mean a written notice from CRC that identifies Material Defects discovered by CRC or the Inspecting Architect during a Monthly Inspection, a Sample Work Inspection, a Permitted Inspection, or the Final Inspection. Parking Agreement shall mean an agreement under which CCC Nash grants to CRC a permanent, perpetual easement for the benefit of the public under which no fewer than 20 parking spaces shall be made available on a first -come, first - served basis in the Garage and /or on the Surface Parking Area. Permitted Change shall mean any change to the final FC Construction Drawings that constitutes a "Permitted Change" pursuant to the Remainder Project Agreement, so long as such change does not make it unlikely, impracticable, or impossible for CRC to complete the Streetscape Work, or any component thereof, by the applicable date set forth in the Streetscape Work Schedule. Permitted Inspection shall mean, as applicable, an inspection by the Inspecting Architect and /or CRC of any item or element of the First Component when reasonably deemed to be necessary or appropriate by the Inspecting Architect and /or CRC. Plan Refinement Process shall mean the process set forth in Section 7 for completing the FC Final Plans. Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Does, and COPs \Parcel 5 -Nash Building- 1st Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -5- 15Nov12 Private Lender shall mean any financial institution making a loan to CCC Nash: (a) that is not a "Public Improvements Financing" under the Remainder Project Agreement; and (b) the proceeds of which shall be used to construct the portion of the First Component not financed by the Bond Proceeds. Remainder Project Agreement shall mean that certain Project Agreement (Parcel 5 Remainder /Parcels 4 & 11) executed by and among CRC, CCC, and VHC and dated December 7, 2011. Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for construction and use of the First Component. Sample Work Inspection shall mean an inspection of a Sample Work Installation. Sample Work Installation shall mean a representative sample or typical example of a certain specified portion of the First Component. Site Plan shall mean the site plan attached hereto as Exhibit A. Streetscape Work shall mean improvements to be made by CRC to the right -of -way of Rangeline Road, which improvements are specified on Exhibit C. Streetscape Work Schedule shall mean the schedule for completion of the Streetscape Work, which schedule: (a) is attached hereto as Exhibit D; but (b) may be revised to the extent necessary or appropriate for consistency with the approved FC Construction Schedule. Surface Parking Area shall mean that portion of the First Component Site on which there will be located approximately 40 surface parking spaces; provided that the final number of parking spaces to be located on the Surface Parking Area shall be determined in connection with the completion of the FC Final Plans pursuant to the Plan Refinement Process. Trust Indenture shall mean that certain Trust Indenture executed by and between CRA and the Trustee and dated as of Trustee shall mean VHC shall mean Village Housing Corporation. 2. General Obligations. (a) First Component. Subject to the terms and conditions of this Agreement: (i) CCC Nash shall construct the First Component on the First Component Site; and (ii) CRC shall complete the Streetscape Work. (b) Bond Proceeds. CRC shall cause Bond Proceeds to be disbursed to pay costs incurred by CCC Nash in connection with the construction of the Garage pursuant to this Agreement. 3. Closing. Subject to the terms and conditions of this Agreement, the Closing shall occur on or before , 2012. The Closing Date shall be established mutually by CRC and CCC Nash, and the Closing shall take place at such place as CRC and CCC Nash mutually agree. At the Closing: (a) CRC and CCC Nash shall execute the FC Taxpayer Agreement and the Parking Agreement; and (b) CRC shall provide to CCC Nash the Disbursement Request Form in a format that allows use by CCC Nash as contemplated Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building - Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -6- l5NovI2 pursuant to the terms and conditions of this Agreement. By executing the FC Taxpayer Agreement and the Parking Agreement at the Closing, CCC Nash is: (a) guaranteeing receipt of 100% of the FC Increment Estimate; and (b) providing CRC with a permanent, perpetual easement under which no fewer than 20 parking spaces shall be made available for public parking. 4. CCC Nash Conditions. The obligations of CCC Nash with respect to proceeding to the Closing shall be subject to the satisfaction or waiver in writing of the following on or before the Closing Date: (a) Bonds. CRA shall have issued the Bonds, and the Bond Proceeds shall be available for distribution in accordance with this Agreement. (b) FC Final Plans. The FC Final Plans shall have been completed pursuant to the Plan Refinement Process. (c) FC Taxpayer Agreement. CRC and CCC Nash shall have agreed on the form and substance of the FC Taxpayer Agreement (including, without limitation, the schedule contemplated in clause (b) of the definition of FC Taxpayer Agreement), pursuant to which CCC Nash shall guarantee that 100% of the FC Increment Estimate actually will be received. (d) No Breach. There shall be no breach of this Agreement by CRC that CRC has failed to cure within the Cure Period. (e) Representations. All of the representations and warranties set forth in Subsection 12(a) of the Remainder Project Agreement, as extended, and applied with respect to, this Agreement pursuant to Section 6, shall be true and accurate in all respects. If one or more of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied, then, as its sole and exclusive remedy, CCC Nash either may elect to: (a) waive in writing satisfaction of the conditions and to proceed to the Closing; or (b) terminate this Agreement by a written notice to CRC; provided that, with respect to breaches of this Agreement by CRC, CCC Nash shall have the rights and remedies set forth in Section 11. If: (a) one of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied; and (b) CCC Nash fails to terminate this Agreement as permitted in this Section; then such unsatisfied condition automatically shall be deemed to be waived by CCC Nash. Notwithstanding anything to the contrary set forth herein, CCC Nash shall work diligently and in good faith to satisfy the conditions set forth in this Section. 5. CRC Conditions. The obligations of CRC with respect to proceeding to the Closing shall be subject to the satisfaction or waiver in writing of the following on or before the Closing Date: (a) Bonds. CRA shall have issued the Bonds, and the Bond Proceeds shall be available for distribution in accordance with this Agreement. (b) Financial Ability. CCC Nash shall have established, to the reasonable satisfaction of CRC, that CCC Nash has adequate funds (loan proceeds, equity investments, and /or cash on hand, including the Bond Proceeds) to construct the First Component. (c) FC Final Plans. The FC Final Plans shall have been completed pursuant to the Plan Refinement Process. (d) FC Taxpayer Agreement. CRC and CCC Nash shall have agreed on the form and substance of the FC Taxpayer Agreement (including, without limitation, the schedule contemplated in clause (b) of the definition of FC Taxpayer Agreement), pursuant to which Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building - Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -7- I5Novl2 CCC Nash shall guarantee that 100% of the FC Increment Estimate actually will be received. (e) No Breach. There shall be no breach of this Agreement by CCC or CCC Nash that CCC or CCC Nash has failed to cure within the Cure Period (f) Representations. All of the representations and warranties set forth in Subsection 12(b) of the Remainder Project Agreement, as extended, and applied with respect to, this Agreement and /or CCC Nash pursuant to Section 6, shall be true and accurate in all respects. If one or more of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied, then, as its sole and exclusive remedy, CRC either may elect to: (a) waive in writing satisfaction of the conditions and to proceed to the Closing; or (b) terminate this Agreement by a written notice to CCC and CCC Nash; provided that, with respect to breaches of this Agreement by CCC or CCC Nash, CRC shall have the rights and remedies set forth in Section 11, Section 12, and /or Section 13, as applicable. If: (a) one of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied; and (b) CRC fails to terminate this Agreement as permitted in this Section; then such unsatisfied condition automatically shall be deemed to be waived by CRC. Notwithstanding anything to the contrary set forth herein, CRC shall work diligently and in good faith to satisfy the conditions set forth in this Section. 6. Representations and Warranties. Each of CRC and CCC: (a) reaffirms the representations and warranties made by it pursuant to Section 12 of the Remainder Project Agreement; and (b) agrees that such representations and warranties extend, and apply with respect, to this Agreement. CCC Nash agrees that it shall be deemed to have made (with respect to CCC Nash) the representations and warranties set forth in Subsection 12(b) of the Remainder ProjectAgreement; accordingly, such representations and warranties shall be deemed to be made by CCC Nash in this Section as though such representations and warranties were set forth herein in full. 7. Plan Refinement. (a) FC Schematic Design Drawings. CRC has approved the FC Schematic Design Drawings pursuant to the Remainder Project Agreement. The FC Schematic Design Drawings are: (i) listed on, or attached as, Exhibit E; and (ii) final schematic design drawings for the First Component, subject to modifications by Change Orders. (b) FC Design Development Documents. In accordance with the FC Plan Schedule, CCC Nash, at its cost and expense, shall submit the FC Design Development Documents and the FC Construction Schedule to CRC for its review and approval. The procedure, including the time frames, set forth in Subsection 5(b) of the Remainder Project Agreement shall apply with respect to the review and approval (or rejection) of the FC Design Development Documents. Upon approval of all of the FC Design Development Documents with respect to any Construction Trade, such FC Design Development Documents shall be final as to such Construction Trade, subject to modifications by Change Orders. Upon approval of the FC Construction Schedule, such FC Construction Schedule shall be the final construction schedule with respect to construction of the First Component, subject to modifications by Change Orders. (c) FC Construction Drawings. In accordance with the FC Plan Schedule, CCC Nash, at its cost and expense, shall submit to CRC for its review the FC Construction Drawings with respect to each Construction Trade. Thereafter, such FC Construction Drawings shall be final construction drawings with respect to the applicable Construction Trade, subject to modifications by Change Orders. Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building - Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -8- 15Novl2 (d) Garage Budget. In accordance with the FC Plan Schedule, CCC Nash, at its cost and expense, shall submit to CRC for its review the Garage Budget. Thereafter, such Garage Budget shall be the final budget with respect to construction of the Garage, subject to modifications as necessary or appropriate as a result of any Change Order. (e) Resubmitted Documents. If, at any stage of the Plan Refinement Process, CRC, rather than approving any drawings, documents, or schedules, instead rejects any drawings, documents, or schedules, then the terms and conditions of Subsection 5(d) of the Remainder Project Agreement shall apply with respect to revising and resubmitting such drawings, documents, or schedules, including that, upon approval of the resubmitted drawings, documents, or schedules, the resubmitted drawings, documents, or schedules shall become part of the FC Final Plans, subject to modifications by Change Orders. Notwithstanding the involvement of CRC in the Plan Refinement Process, CCC Nash shall be responsible for insuring that revisions submitted by CCC Nash to CRC in writing, and approved by CRC, are implemented in the FC Final Plans. (f) FC Final Plans. Upon completion of the FC Final Documents and Drawings through the Plan Refinement Process, the aggregated FC Final Documents and Drawings shall constitute the complete FC Final Plans, subject to modification by Change Orders. All references herein to the FC Final Plans shall be deemed to be references to the FC Final Documents and Drawings, until such time as all of the FC Final Documents and Drawings are completed; provided that, when all of the FC Final Documents and Drawings are completed, all references herein to the FC Final Plans shall be deemed to be references to the FC Final Plans, as modified by Change Orders. (g) Changes. If CCC Nash desires to make any changes to the FC Final Plans, other than a Permitted Change, then: (i) CCC Nash shall submit to CRC a Change Order Request for its review and approval; and (ii) the terms and conditions of Subsection 5(f) of the Remainder Project Agreement shall apply with respect to the review and approval (or rejection) of the change proposed in such Change Order Request. If CRC approves a Change Order Request, then CRC and CCC Nash shall execute a Change Order. Notwithstanding anything to the contrary set forth herein: (i) CCC Nash shall not be required to obtain CRC's approval in connection with a Permitted Change; and (ii) a Change Order with respect to a Permitted Change shall be effective if executed only by CCC Nash; provided that, with respect to each Permitted Change, CCC Nash shall submit a Change Order Request to CRC for its review. (h) Declaration Approvals. CRC confirms its obligation pursuant to Subsection 5(g) of the Remainder Project Agreement to vote, as Declarant under the City Center Declaration and as owner of certain parcels within the City Center, for approval by the Architectural Review Committee of any drawings, documents, or schedules approved by CRC pursuant to this Section. The capitalized terms "City Center Declaration ", "City Center ", and "Architectural Review Committee" are defined in the Remainder Project Agreement. (i) Review Panel. CCC Nash confirms the right of CRC pursuant to Subsection 5(h) of the Remainder Project Agreement to delegate all or any part of its review and approval or rejection obligations pursuant to this Section to the "Plan Review Panel ", as defined in the Remainder Project Agreement. (j) Design Responsibility. Notwithstanding that CRC: (i) has review and approval rights in connection with the Plan Refinement Process; and (ii) otherwise may participate in the Plan Refinement Process (including that CRC may hire consultants or other professionals Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building- 1st Component \Project Agreement\PROJECT AGREEMENT.9 TO 8. wpd -9- 15Nov12 in connection therewith); CCC Nash shall be responsible for the design and engineering of the First Component, and, as between CRC and CCC Nash, CCC Nash assumes responsibility for defects and deficiencies in the design and engineering of the First Component (including, without limitation, defects in the FC Final Documents and Drawings); provided that, nothing in this Subsection shall be deemed to prohibit CCC Nash from proceeding against any of the engineers, architects, or other consultants in the event of any design or engineering defects or deficiencies. (k) Construction. CCC Nash shall construct the First Component: (i) in a good and workmanlike manner; (ii) in accordance with the FC Final Plans (as modified by any Change Orders); and (iii) in compliance with the Laws; provided that, prior to commencing construction of the First Component, CCC Nash: (i) at its cost and expense, shall obtain and submit to CRC for its review the Required Permits; and (ii) shall provide the Construction Contract to CRC for its review and approval, which approval shall not be withheld unreasonably. (1) Streetscape. CRC shall complete the Streetscape Work: (i) in a good and workmanlike manner; (ii) in accordance with the Streetscape Work Schedule; and (iii) in compliance with the Laws. (m) Owner. Upon completion of the First Component (including the Garage and the Surface Parking Area: (i) Developer (as opposed to CRC, the City, or any agency or instrumentality of the City) shall be the owner of the First Component (including the Garage and the Surface Parking Area); and (ii) as between CRC and Developer, Developer shall have the right to control use of all of the parking spaces in the Garage and on the Surface Parking Area, subject to the rights of CRC pursuant to the Parking Agreement (which rights consist of a permanent, perpetual easement under which no fewer than 20 parking spaces shall be made available for public parking). Accordingly: (i) Developer, as the owner of the First Component (including the Garage and the Surface Parking Area), shall be responsible for all costs and expenses in connection with the use and operation of the First Component (including the Garage, the Surface Parking Area, and all drives and access ways located on the First Component Site), including, without limitation, all costs and expenses to maintain and insure the Garage, the Surface Parking Area, and all drives and access ways located on the First Component Site; and (ii) CRC shall have no responsibility for costs and expenses in connection with the use and operation of the Garage, the Surface Parking Area, and /or any drives and /or access ways located on the First Component Site, including, without limitation, that CRC shall have no responsibility for the costs and expenses to maintain and insure the Garage, the Surface Parking Area, and /or any drives and /or access ways located on the First Component Site. 8. Public Improvements Financing. (a) Confirmation. As provided in the definition thereof: (i) the Garage constitutes a "Public Improvement" under the Remainder Project Agreement; and (ii) the Nash Building constitutes a "New Improvement" under the Remainder Project Agreement. (b) FC Increment Estimate. As contemplated by the terms and conditions of Subsection 4(b) of the Remainder Project Agreement, CCC Nash has: (i) prepared the FC Increment Estimate; and (ii) provided the FC Increment Estimate to CRC and the Financial Advisor. CRC has approved the FC Increment Estimate based upon CCC Nash's agreement to execute the FC Taxpayer Agreement, which, in effect, "guarantees" the FC Increment Estimate by obligating CCC Nash to pay any difference between: (i) the amount of the FC Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs\Parcel 5 -Nash Building - Ist Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -10- 15Nov 12 Increment Estimate; and (ii) the amount of the FC Increment that actually is generated. For purposes of being absolutely, explicitly clear, and as would be the case under the Laws regardless of any such acknowledgment and agreement, CCC Nash acknowledges and agrees that, to the extent that the FC Increment actually generated exceeds the FC Increment Estimate, such excess FC Increment shall belong to, and be the property of, CRC. Accordingly, it also shall be the case that, if the Bonds are repaid, refunded, redeemed, defeased, refinanced, and /or "taken out" in full prior to the scheduled date for such repayment, refund, redemption, defeasance, refinance, and/or "take out ", then, from and after the actual date on which the Bonds are repaid, refunded, redeemed, defeased, refinanced, and /or "taken out" in full, all FC Increment shall belong to, and be the property of, CRC. (c) Bond Proceeds. The Bond Proceeds shall be used only to construct the Garage in accordance with the FC Final Plans; provided that, if the cost to construct the Garage is less than the total amount of the Bond Proceeds, then the remaining Bond Proceeds may be used to construct, in accordance with the FC Final Plans, public improvements that constitute "Public Improvements" under the Remainder Project Agreement. All portions of the Garage and other "Public Improvements" that are to be funded by disbursements of Bond Proceeds shall be publicly bid in accordance with the Laws. (d) Public Improvements Financing. The parties intend for the use of the Bond Proceeds to constitute a "Public Improvements Financing ", notwithstanding that there is no leveraging of the FC Increment in connection therewith. Accordingly, with respect to the First Component, the terms and conditions of the Remainder Project Agreement with respect to "Public Improvements Financing" and the obligations of CRC in connection therewith shall be interpreted as though such terms and conditions referred to a financing consistent with the terms and conditions applicable with respect to the Bond Proceeds (as opposed to a financing obtained by leveraging the FC Increment). Accordingly: (i) the terms and conditions of Subsection 4(c) of the Remainder Project Agreement shall not be applicable with respect to the First Component; (ii) as contemplated pursuant to Subsection 4(e) of the Remainder Project Agreement, in no event shall CRC be obligated to expend any funds on the construction or acquisition of the Garage in addition to the Bond Proceeds, regardless of the actual costs incurred by CCC Nash in connection with the construction and /or completion of the Garage; and (ii) to the extent that the cost to construct and /or complete the Garage exceeds the Bond Proceeds, CCC Nash shall be responsible for such excess cost. (e) Assessment. As provided in Subsection 4(f) of the Remainder Project Agreement, CCC Nash shall be responsible for ensuring that the First Component is fully assessed for property tax purposes on or before the applicable date set forth in the FC Construction Schedule. (f) First Disbursement. As a condition to the first disbursement of Bond Proceeds, it shall be the case that: (i) The Closing has occurred; (i) CCC Nash has delivered to CRC a certification that all of the information set forth in the Garage Budget is true, correct, and accurate; (ii) CCC Nash has submitted to CRC, and CRC shall have approved, the Construction Contract; (iv) CCC Nash has obtained (or CRC shall have determined that CCC Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building- 1st Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd l5Novl2 Nash will be able to obtain) all of the Required Permits; and (v) The requirements of Subsection 8(i) have been satisfied. (g) Subsequent Disbursements. As a condition to all disbursements of funds subsequent to the first disbursement of Bond Proceeds, it shall be the case that, as of the date of the disbursement request, construction of the Garage is proceeding in compliance with the FC Construction Schedule. (h) Final Disbursement. As a condition to the final disbursement, it shall be the case that, as of the date of the final disbursement request: (I) CRC has received a certification by the General Contractor that: (A) Garage Substantial Completion has occurred; (B) with respect to the Garage, it has obtained final lien waivers from the "first layer" of subcontractors that otherwise would have the right to claim valid mechanics' or similar liens against all or a portion of the First Component Site, subject only to payment from the final disbursement of Bond Proceeds; and (C) upon disbursement of the final Bond Proceeds: (1) payment will be made to the applicable parties; and (2) after such, all parties will be paid in full for all work in connection with the construction of the Garage; (ii) CRC has received a certification from CCC Nash's architect that: (A) Garage Substantial Completion has occurred; and (B) the Garage has been constructed in substantial accordance with the FC Final Plans and the Laws; (iii) CRC has received a copy of the "punch- list "; provided that 120% of the cost to complete such "punch- list" items shall be withheld from the final disbursement of Bond Proceeds and paid to CCC Nash upon completion thereof; and (iv) The requirements of Subsection 8(i) have been satisfied. (I) Disbursements Generally. In addition to any other requirements set forth in this Section, all requests for disbursements of Bond Proceeds shall: (I) be made on the Disbursement Request Form, and include all submissions required by the terms of the Disbursement Request Form; (ii) include a certification by the General Contractor that: (A) it has obtained lien waivers from the "first layer" of subcontractors that otherwise would have the right to claim valid mechanics' or similar liens against all or a portion of the First Component Site through the date of the previous disbursement; and (B) upon disbursement of the requested Bond Proceeds: (1) payment will be made to the applicable parties; and (2) after such payments, all costs incurred to the date of such request in connection with the construction of the Garage will be paid in full; (iii) include a certification by the General Contractor that, after payment of the costs to be paid out of such disbursement, sufficient Bond Proceeds will remain to complete the construction of the Garage; and Z:\Documents \Shoup, Jenny \City of Carmel\Parcels 2- 5 -7 -4 -1 I -12- Remainder PA, Component Does, and COPs\Parcel 5 -Nash Building- 1st Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -12- 15Nov12 (iv) include a certification by CRC that, pursuant to Section 9, it has inspected and approved the portions of the Garage completed through the date of the disbursement request. (j) General. At such time as CRC determines that it has received all items required for a disbursement, CRC shall notify the Trustee of such determination so that the Trustee can disburse the Bond Proceeds in accordance with the terms and conditions of the Trust Indenture. CRC shall have the right to require that retainage be withheld in accordance with the terms and conditions of the Construction Contract. All retainage shall be paid after the final disbursement of Bond Proceeds and at such time as copies of final lien waivers are provided to CRC. 9. Inspection. (a) Monthly Inspections. Each month during construction of the First Component, the Inspecting Architect, at CCC Nash's cost and expense, shall conduct a Monthly Inspection; provided that the Inspecting Architect shall provide reasonable written notice to CCC Nash prior to each Monthly Inspection. After a Monthly Inspection, CRC may deliver to CCC Nash a Non - Compliance Notice; provided that, upon receipt of a Non - Compliance Notice, CCC Nash shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non - Compliance Notice, except and to the extent that any such Material Defects previously have been accepted, or deemed to have been accepted, by CRC. Upon receipt of written demand, CCC Nash shall pay the Inspecting Architect's fee for each Monthly Inspection. At CCC Nash's election, the Inspecting Architect shall: (i) schedule the Monthly Inspections to coordinate with draw requests submitted by CCC Nash to the Trustee and /or any Private Lender that is identified to CRC; and (ii) provide to CCC Nash, the Trustee, and /or any Private Lender (to the extent that an address therefor is provided to CRC) an inspection report with respect to Monthly Inspection. (b) Sample Work Inspection. If CCC Nash delivers an Inspection Request to CRC, then, within the Inspection Period, CRC and /or the Inspecting Architect, at CCC Nash's cost and expense, shall: (i) conduct a Sample Work Inspection of the Sample Work Installation identified in the Inspection Request; and (ii) deliver to CCC Nash, if applicable, a Non - Compliance Notice; provided that: (i) upon receipt of a Non - Compliance Notice with respect to such Sample Work Installation, CCC Nash shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non - Compliance Notice, except and to the extent that any such Material Defects previously have been accepted, or deemed to have been accepted, by CRC; and (ii) all items or components of such Sample Work Installation with respect to which no Material Defects are identified in a Non - Compliance Notice shall be deemed to be accepted by CRC. Any portion of the First Component subsequently constructed or installed in accordance with: (i) a Sample Work Installation that has been accepted, or deemed to be accepted, by CRC; and (ii) the Laws; shall be deemed to be accepted by CRC. (c) Permitted Inspection. Upon reasonable written notice delivered to CCC Nash, which notice shall specify the portion of the construction to be inspected, CRC and /or the Inspecting Architect may perform a Permitted Inspection. After a Permitted Inspection, CRC may deliver to CCC Nash a Non - Compliance Notice; provided that, upon receipt of a Non - Compliance Notice, CCC Nash shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non - Compliance Notice, except and to the extent that any such Material Defects previously have been accepted, or deemed to have been accepted, by CRC. Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building - 1st Component \Project Agreement\PROJECT AGREEMENT.9 TO 8.wpd -13- 15Nov12 (d) Final Inspection. If CCC Nash delivers to CRC a written request for a Final Inspection, then, on or before the later of the date that is five business days after: (i) receipt by CRC of such request; or (ii) the date specified in such request as the substantial completion date; CRC and /or the Inspecting Architect, at CCC Nash's cost and expense, shall: (i) conduct the Final Inspection; and (ii) deliver to CCC Nash, if applicable, a Non - Compliance Notice; provided that: (A) upon receipt of a Non - Compliance Notice, CCC Nash shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non - Compliance Notice, except and to the extent that any such Material Defects previously have been accepted, or deemed to have been accepted, by CRC; and (B) all items or components of the First Component with respect to which no Material Defects are identified in a Non - Compliance Notice shall be deemed to be accepted by CRC. Upon: (i) correction of all Material Defects identified in the Non - Compliance Notice; or (ii) deemed acceptance by CRC of the First Component; CRC shall have no further inspection rights with respect to the construction of the First Component. (e) Latent Defects. Notwithstanding anything to the contrary set forth herein, no acceptance, or deemed acceptance, by CRC pursuant to this Section shall be applicable with respect to any Latent Defects. An acceptance, or deemed acceptance, by CRC pursuant to this Section shall not mean that CRC has accepted, or CCC Nash has been relieved of, responsibility for: (i) compliance with the Laws; (ii) the proper application of construction means or methods; or (iii) correcting any portion of the First Component if it later is determined that such portion is inconsistent with the proper completion of a subsequent portion of the First Component. An acceptance, or deemed acceptance, by CRC pursuant to this Section shall not be binding on any other governmental authority, and any inspections performed by CRC or the Inspecting Architect pursuant to this Section shall not preclude, or be deemed to be in substitution of, inspections required or permitted to be performed by other governmental authorities. (f) Garage Latent Defects. (i) CCC Nash shall be obligated, at its expense, to correct any Garage Latent Defects that are discovered, notwithstanding that CRC may have acquired fee simple title to, and /or received full possession of, the Garage. (ii) If, at any time after the Final Inspection, either CRC or CCC Nash discovers a Garage Latent Defect, then CRC or CCC Nash, as applicable, promptly shall notify the other party in writing of the existence of such Garage Latent Defect. Promptly after delivering or receiving such notice, as applicable, and in all events within 30 days thereafter, CCC Nash shall prepare, and submit to CRC for its approval, a Corrective Action Plan. (iii) Within ten days after CRC receives the Corrective Action Plan, CRC shall deliver to CCC Nash written notice that it approves or rejects the Corrective Action Plan; provided that: (A) CRC shall not withhold its approval unreasonably; and (B) if CRC rejects all or any part of the Corrective Action Plan, then such notice shall: (1) specify the part or parts that CRC is rejecting; and (2) include the specific basis for such rejection. (iv) If CRC reasonably rejects all or any part of the Corrective Action Plan, then, within ten days after CCC Nash receives notice from CRC of such rejection, CCC Nash shall: (A) revise the Corrective Action Plan; and (B) resubmit the Corrective Action Plan to CRC. Within ten days after CRC Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Does, and COPs \Parcel 5 -Nash Building- 1st Component \Project Agreement\PROJECT AGREEMENT.9 TO 8.wpd -14- 15Nov12 receives the resubmitted Corrective Action Plan, CRC shall deliver to CCC Nash written notice that it approves or rejects the resubmitted Corrective Action Plan; provided that: (A) CRC shall not withhold its approval unreasonably; and (B) if CRC rejects all or any part of the Corrective Action Plan, then such notice shall: (1) specify the part or parts that CRC is rejecting; and (2) include the specific basis for such rejection. This process shall continue until CRC has approved the Corrective Action Plan. (v) CCC Nash shall be obligated to carry out the approved Corrective Action Plan in accordance with the schedule that is a part of such approved Correction Action Plan. (g) General. In the case of an inspection by CRC and /or the Inspecting Architect pursuant to this Section, CRC and /or the Inspecting Architect shall: (i) comply with all health and safety rules of which CRC has been informed that have been established for personnel present on the construction site; and (ii) coordinate the inspections so that the inspections do not interfere with the performance of construction by CCC Nash. CCC Nash shall have the right to accompany, and /or to have its construction manager accompany, CRC and /or its Inspecting Architect during any inspection pursuant to this Section. (h) Copies. As required by the Remainder Project Agreement, CCC Nash shall: (i) deliver promptly to CRC's counsel copies of all draw requests delivered to the Trustee and /or any Private Lender; and (ii) cause the Trustee and any Private Lender to deliver to CRC's counsel, promptly upon receipt thereof, copies of inspection reports obtained by the Trustee or such Private Lender, respectively. All draw requests and inspection reports received by CRC's counsel pursuant to this Subsection shall be subject to the attorney /client privilege between CRC's counsel and CRC. 10. Insurance. During construction of the First Component, CCC Nash shall maintain the policies of insurance required pursuant to Section 8 of the Remainder Project Agreement, which policies shall satisfy the requirements of such Section. CCC Nash shall deliver to CRC certificates of the required insurance policies, executed by the insurance company or the general agency writing such policies. 11. Default. (a) Events of Default. It shall be an "Event of Default" if any party fails to perform or observe any term or condition of this Agreement to be performed or observed by it: (i) with respect to the obligation to pay money, if such failure is not cured within ten days after such payment is due; and (ii) with respect to any other obligation, if such failure is not cured within the Cure Period. (b) Remedies. Whenever an Event of Default occurs, the non- defaulting party may take whatever actions at law or in equity are necessary or appropriate to: (i) collect any payments due under this Agreement; (ii) protect the rights granted to the non - defaulting party under this Agreement; (iii) enforce the performance or observance by the defaulting party of any term or condition of this Agreement (including, without limitation, the right to specifically enforce any such term or condition, it being acknowledged and understood by the parties that monetary damages are not an adequate remedy for the failure of either party to observe and /or perform any term or condition of this Agreement); or (iv) cure, for the account of the defaulting party, any failure of the defaulting party to perform or observe a material term or condition of this Agreement to be performed or observed by it. If the non - defaulting party incurs any costs or expenses in connection with exercising its rights and remedies under, or Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Does, and COPs \Parcel 5 -Nash Building - lst Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -15- l5Novl2 enforcing, this Agreement, then the defaulting party shall reimburse the non - defaulting party for all such costs and expenses, together with interest at the rate of 12% per annum. (c) No Remedy Exclusive. No right or remedy herein conferred upon, or reserved to, a non - defaulting party is intended to be exclusive of any other available right or remedy, unless otherwise expressly stated (for example, as stated in Section 12 or Section 13); instead, each and every such right or remedy shall be cumulative and in addition to every other right or remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission by a non - defaulting party to exercise any right or remedy. upon any Event of Default shall impair any such right or remedy, or be construed to be a waiver thereof, and any such right or remedy may be exercised from time to time, and as often as may be deemed to be expedient. To entitle a non - defaulting party to exercise any of its rights or remedies, it shall not be necessary for the non - defaulting party to give notice to the defaulting party, other than such notice as may be required by this Section or by the Laws. 12. Recapture by CRC. (a) Recapture Right. If construction of the First Component has not commenced as of the date that is 18 months after the date specified in the approved FC Construction Schedule, then the terms and conditions of Subsection 10(a) of the Replacement Project Agreement shall apply; provided that all references to a portion of the "Project Site" and /or a "Component" shall be deemed to be references to the First Component Site and /or the First Component, respectively. If CRC exercises its right to require reconveyance of the First Component Site to CRC pursuant to Subsection 10(a) of the Replacement Project Agreement, then: (i) in addition to the automatic termination of the Remainder Project Agreement with respect to the First Component Site, this Agreement automatically shall terminate and be of no further force or effect; and (ii) neither CCC nor CCC Nash shall have any further rights hereunder with respect to the First Component Site. (b) Sole Remedy. Notwithstanding anything to the contrary set forth herein, the rights set forth in this Section and the FC Taxpayer Agreement shall be the sole remedies available to CRC for the failures and /or delays specified in this Section; provided that CRC shall have: (i) the remedies of specific performance and /or injunction to ensure compliance with the terms and conditions of this Section; and (ii) the right to recover all costs and expenses incurred in connection with exercising the remedies permitted pursuant to this Section. (c) Reconveyance Closing. If CRC elects to require the reconveyance of the First Component Site in accordance with the terms and conditions of this Section, then the terms and conditions of Subsection 10(c) of the Remainder Project Agreement shall apply. 13. Construction Delay. (a) Catch -Up Plans If CCC Nash falls 60 or more days behind the applicable dates set forth in the FC Plan Schedule or the FC Construction Schedule for the design or construction of the First Component, then the terms and conditions of Subsection 11(a) of the Remainder Project Agreement shall apply; provided that all references to a "Component" and /or a "Component Catch -Up Plan" shall be deemed to be references to the First Component and /or a Catch -Up Plan, respectively. (b) Costs. CCC Nash shall be responsible for all costs and expenses to prepare and implement a Catch -Up Plan (including costs and expenses incurred by CRC pursuant to this Section). Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building - I st Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -16- l5Novl2 (c) Sole Remedy. Notwithstanding anything to the contrary set forth herein, the rights set forth in this Section and the FC Taxpayer Agreement shall be the sole remedies available to CRC for the failures and /or delays specified in this Section; provided that CRC shall have: (i) the remedies of specific performance and /or injunction to ensure compliance with the terms and conditions of this Section; and (ii) the right to recover all costs and expenses incurred in connection with exercising the remedies permitted pursuant to this Section. 14. Mutual Indemnification. Each of CRC and CCC: (a) reaffirms its indemnification obligations pursuant to Section 13 of the Remainder Project Agreement; and (b) agrees that such indemnification obligations extend, and apply with respect, to this Agreement. CCC Nash agrees that it shall be deemed to have incurred the indemnification obligations set forth in Subsection 13(b) of the Remainder Project Agreement; accordingly, such indemnification obligations shall be deemed to be undertaken by CCC Nash in this Section as though such indemnification obligations were set forth herein in full. Notwithstanding anything to the contrary set forth herein, the obligations of the parties under Section 13 of the Remainder Project Agreement (and, accordingly, this Section) shall survive the termination of the Remainder Project Agreement and this Agreement. 15. Assignment. The terms and conditions of Section 14 of the Remainder Project Agreement shall apply with respect to the assignment of this Agreement including that, consistent with the terms and conditions of Section 14 of the Remainder Project Agreement, CCC Nash may sell the Nash Building (or units of space therein) after completion of the First Component. 16. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by facsimile or email, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to CRC at 30 West Main Street, Suite 220, Carmel, Indiana 46032, Facsimile: 317 - 844 -3498, email: lolds @carmel.in.gov, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., Wallack Somers & Haas, PC, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204, Facsimile: 317 - 231 -9900, email: kph@wshlaw.com; and to CCC and CCC Nash at 770 3rdAvenue Southwest, Carmel, Indiana 46032, Facsimile: 317 - 587 -0340, email: rbrown @pedcor.net, Attn: Ron Brown. Either party may change its address for notice from time to time 17. Authority. Each undersigned person executing this Agreement on behalf of CRC, CCC, and CCC Nash represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary action of CRC, CCC, and CCC Nash, respectively, to execute and deliver this Agreement; (b) he or she has full capacity, power, and authority to enter into and carry out this Agreement; (c) the execution, delivery, and performance of this Agreement have been authorized by CRC, CCC, and CCC Nash, respectively; and (d) this Agreement is the valid and binding obligation of CRC, CCC, and CCC Nash, respectively, that, subject to the Laws, is enforceable in accordance with its terms. 18. Force Majeure. Notwithstanding anything to the contrary set forth herein, if either party is delayed in, or prevented from, observing or performing any of its obligations under, or satisfying any term or condition of, this Agreement as a result of Force Majeure; then: (a) the party asserting Force Majeure shall deliver written notice to the other party; (b) such observation, performance, or satisfaction shall be excused for the period of days that such observation, performance, or satisfaction is delayed or prevented; and (c) the deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same period. 19. Miscellaneous. Subject to Section 15 (and Section 14 of the Remainder Project Agreement), this Agreement shall inure to the benefit of, and be binding upon, CRC, CCC, and CCC Nash, and their respective successors and assigns. This Agreement: (a) may be executed in separate counterparts, each of which shall be an original, but all of which together shall constitute a single instrument; (b) shall be governed by, and construed in accordance with, the laws of the State of Indiana; and (c) may be modified only by a written Z:\Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12- Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building- 1st Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -17- l5Nov12 agreement signed by all of CRC, CCC, and CCC Nash. The invalidity, illegality, or unenforceability of any one or more of the terms and conditions of this Agreement shall not affect the validity, legality, or enforceability of the remaining terms and conditions hereof. All Exhibits referenced in this Agreement are attached hereto and incorporated herein by reference. All proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts in Hamilton County, Indiana, or the federal courts with venue that includes Hamilton County, Indiana. CCC and CCC Nash waive, to the extent permitted under applicable law: (a) the right to a trial by jury; and (b) any right CCC or CCC Nash may have to: (i) assert the doctrine of "forum non conveniens "; or (ii) object to venue. IN WITNESS WHEREOF, CRC, CCC, and CCC Nash have executed this Agreement as of the date set forth above. Z: \Documents \Shoup, Jenny \City of Carmel\Parcels 2-5-7-4-11-12 - Remainder PA, Component Docs, and COPs \Parcel 5 -Nash Building- 1st Component \Project Agreement \PROJECT AGREEMENT.9 TO 8.wpd -18- THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: William Hammer, President CARMEL CITY CENTER, LLC By: Dolores M. Krohne, Senior Vice-President CCC NASH, LLC By: Dolores M. Krohne, Senior Vice-President 15Nov12 Exhibit A Site Plan Exhibit B INDEX TO EXHIBITS FC Plan Schedule (schedule in accordance with which CCC submits FC Design Development Documents, FC Construction Schedule, FC Construction Drawings, and Garage Budget) Exhibit C CRC Streetscape Work description Exhibit D Streetscape Work Schedule Exhibit E Schematic Design Drawings (or list thereof) Z: \Documents \Shoup, Jenny \City of Carmel \Parcels 2-5-7-4-11-12 - Remainder PA, Component Does, and COPs\Parcel 5 -Nash Building - lst Component\Prdject Agreement\PROJECT AGREEMENT.9 TO 8.wpd I5NovI2 4p 11111111J11111111111111 City Center Orly. MiSitfte" raw V* trie,9 ;ft date: 03 -21 -20 2 THE NASH BUIL It ONG (Building Exhibit B 1. Design Development documents have been review and approved by the Carmel Redevelopment Commissions Plan Review Panel on June 15, 2011. PRP Meeting minutes attached. 2. Reviewed Construction Drawings with Signature Construction on 7/18/2012 approved by the Executive Director, Les Olds. 3. Construction to start on 3/1/13 with a completion date of 5/1/14. I I I I I I I II I 1 I II I I I RI LI City Center Drive date: 03-21-2012 THE ASH ti DING (Building D) "ipc+ • (2..■1.i: Exhibit D Completion of the Streetscape Work will coincide with the construction of the First Component pursuant to the FC Construction Schedule; provided that all Streetscape Work consisting of ingress and egress walks shall be in place prior to the issuance of the certificate of occupancy for the First Component. E Ow% dote:03-21-2012 G LEVEL 11-1E NASH BUILDING D) ea tj S558. 154L RANO6LINE RANGEUHE date:03-21-2012 BUILDING ADDRESS: 850 SOUTH RANGEUNE FIRST FL ift OR T1-4E NASH BUILDING dote: 03-21 -20 12 SECO 1 FLOOR THE NASH BUILDING tBuildin& r r) 1'. 1. THRD FLOOR date: 03 .1-2012 THE NASH BWLDING (Building p) • Iu ..4424:041.16t17 Unit A date: 03-21 -2012 • '1. C - ..f.v.E.C,A•,`, THE OMASH BUILDING (Building D) ,;2 A svi t., oWia— V115, vg; BEORO HALL A1.12 DINING ROOM BATH M4 CLOSET M.11 LAUNO A .10 KITCHEN A1.0 Wk.fetiK:4,..04.11,4%PiVf:k,AVA,,iet,lat4arltqW1,5A Unit A-1 date: 03 -2 I -20 2 THE ASH U1LDING (Building, p). (1 A TERRACE 3i.42M.A4: Wpagt7=WARIAAMEli,, A=M531.44.41 DEDROO A2-11 BEDIQOM M - _ - A2-17 CLOSET A2-11 HALL A2-11 "5:4;444,7rfik.7"..tATY OINING ROO A2-2 LAUNDRY M.14 date: 03-2 1 -2012 KITCHEN HALL A1-1 A24 A4114 riii Unit A-2 THE NASH BURLD1NG (Building o) "110%.vntr, dote: 03 -21 -2O2 -44,?4,1vOila,-4e4I.At*'= Unit B THE NASH BUSLDING (Building D) *0,1:4741ta-afrAWM:fa**1701M1,4V 0,t 4*VeliWW,WAviiikVotiMmOy,,t,Vi Atx • - MHO R C4 KRCHEN C.9 HALL BEDROOM C-3 uu C-11 r- HEM loadtMtglin4MYRO- OPZMN) L. CLOSET C.S 1 uinumn c.to Unit C :!!'"..7----.7-';r7r date: 03 21 -20 12 THE NASH BUILDING (Building._p) .hztair--tiftVAW4, 4.tf ti.U70;14,13P0.:WgiMM.VilrinigniM • !NINO R 1:1•Z KITCHEN b•t• BEDROOM 04 ur • 5,0,,,,pP414AMOPirraa LAUNDRY 01D :45it:Nai'etp;%til-A„Nt-174* Unit D date: 03-21 -.20 I 2 THE NASH BUILDING (Building D) HALL £.11 ROOM M#VAR*0:4M* HALL E-12 KITCHEN fillE11111 Unit E date: 03-21-2012 THE NASH BUOLDONG (Building D) ARA-11: T. RESOLUTION NO. 2012 -6 RESOLUTION OF THE CITY OF CARMEL REDEVELOPMENT COMMISSION APPROVING THE FORM AND AUTHORIZING THE EXECUTION OF A PROPOSED LEASE BETWEEN THE CITY OF CARMEL REDEVELOPMENT AUTHORITY AND THE CITY OF CARMEL REDEVELOPMENT COMMISSION, AND AUTHORIZING CERTAIN MATTERS RELATED THERETO WHEREAS, the City of Carmel Redevelopment Authority (the "Authority ") has been created pursuant to Indiana Code 36 -7 -14.5 as a separate body corporate and politic, and as an instrumentality of the City of Carmel, Indiana (the "City "), to finance local public improvements for lease to the City of Carmel Redevelopment Commission (the "Commission "); and WHEREAS, the Authority has adopted, or is expected to adopt, a resolution (a) approving a proposed lease agreement (the "Lease ") between the Authority, as lessor, and the Commission, as lessee, for the lease of the Leased Premises (as defined in the Lease), and (b) indicating its intent to issue one or more series of its lease rental revenue bonds, all or any portion of which may be taxable or tax - exempt for federal income tax purposes, in the maximum original principal amount of $195,000,000 (collectively, the "Bonds "), to provide funds for the purposes of: (1) financing the acquisition by the Authority from the City of the Leased Premises, and the use by the City of the proceeds of such sale to (A) refund, or cause to be refunded, all or a portion of the outstanding obligations of the City and /or the District, identified in Ordinance D- 2100-12 (as may be amended) (the "Ordinance "), adopted or to be adopted by the Common Council of the City ( "Common Council ") prior to the issuance of the Bonds, and pay all costs or expenses incurred in connection therewith (clause (1)(A), collectively, the "Refunding Project "), and (B) finance or reimburse the cost of the construction, renovation, improvement and /or equipping of the projects identified in the Ordinance (clause (1)(B), collectively, the "City Center Completion Projects "); (2) funding a debt service reserve fund or paying the premiums for one or more municipal bond insurance policies and /or one or more debt service reserve fund credit facilities, if any; (3) paying capitalized interest on the Bonds, if any; and (4) paying all costs of issuance of the Bonds (clauses (1) through and including (4), collectively, the "Project "); and WHEREAS, the form of proposed Lease has been presented to the Commission at this meeting; and WHEREAS, after publishing notice of a public hearing in accordance with Indiana law and Section 147(0 of the Internal Revenue Code of 1986, as amended, the Commission held a public hearing on September 19, 2012, at 6:30 p.m. (local time), in the City Hall Council Chambers, located at One Civic Square, Carmel, Indiana, regarding the Lease and the Bonds at which the Commission provided all interested parties the opportunity to be heard at such hearing; and WHEREAS, pursuant to the terms of the Lease, the Commission intends to pay lease rental payments to the Authority (the "Rental Payments ") at a maximum annual rate of Seventeen Million Five Hundred Thousand Dollars ($17,500,000), which Rental Payments shall be payable in semi- annual installments, for a term no longer than twenty -five (25) years beginning on the date on which the Commission begins to make Rental Payments under the Lease, and ending on the day prior to a date not later than twenty -five (25) years thereafter; and WHEREAS, the Commission desires to execute the Lease and authorize the publication, in accordance with Indiana Code 36 -7 -14 -25.2, of a Notice of Execution and Approval of Lease. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF CARMEL REDEVELOPMENT COMMISSION AS FOLLOWS: 1. The Commission hereby finds and determines that the terms of the Lease are based upon the value of the Leased Premises, that the Rental Payments to be paid by the Commission, pursuant to the terms of the Lease, at a maximum annual rate of Seventeen Million Five Hundred Thousand Dollars (S 17,500,000), which Rental Payments shall be payable in semi- annual installments, for a term no longer than twenty -five (25) years beginning on the date on which the Commission begins to make lease rental payments under the Lease and ending on the day prior to a date not later than twenty -five (25) years thereafter, are fair and reasonable, and that the service to be provided throughout the term of the Lcase will serve the public purpose of the City and is in the best interests of its residents. 2. The Commission reasonably expects to pay the Rental Payments during the term of the Lease from tax increment revenues or other legally available revenues of the Commission, and the payment of the Rental Payments will be secured by a back -up pledge of the revenues derived by the Commission from the levy of a special benefits tax pursuant to Indiana Code 36- 7-14-27. 3. The President or Vice President and the Secretary of this Commission are hereby authorized and directed, on behalf of the City, and subject to obtaining approval from the Common Council, to execute and deliver the Lease in substantially the form presented at this meeting with such changes in form or substance as the President or Vice President of this Commission shall approve, such approval to be conclusively evidenced by the execution thereof; provided, however, the annual Rental Payments and term of the Lease shall not exceed the parameters set forth in paragraph 1 hereof. 4. The Secretary of the Commission is hereby directed to transmit to the Common Council a copy of this Resolution and to request from the Common Council an ordinance approving the Lease, prior to the execution thereof. 5. The Commission hereby authorizes the publication, in accordance with Indiana Code 36 -7 -14 -25.2, of the Notice of Execution and Approval of Lease. 6. The Commission hereby declares its official intent to facilitate the issuance of the Bonds for the purpose of financing the Project. The Commission hereby declares its intent, pursuant to Treas. Reg. §1.150-2 and Indiana Code 5- 1- 14 -6(c), that all or a portion of the costs incurred by or on behalf of the Authority, the Commission or the City in financing the Project, be reimbursed from the proceeds of the Bonds. 7. The President, Vice President and Secretary of this Commission, and each of them, is hereby authorized and directed to take any and all such further actions and to execute all 2 such instruments, documents or certificates as may be necessary, desirable or appropriate to cant' out the Project and the transactions contemplated by this Resolution, in such forms as the President, Vice President or Secretary executing the same shall deem proper, such desirability to be conclusively evidenced by the execution thereof, and any and all actions previously taken by any member of the Commission or representatives of the Commission in connection with the foregoing resolutions, including, but not limited to, publication of the notice of the public hearing held in connection with such resolutions, be, and hereby are, ratified and approved. 8. This Resolution shall be in full force and effect after adoption by the Commission. ADOPTED this 19th day of September, 2012. INDSOI li1B 1350187v3 CITY OF CARMEL REDEVELOPMENT COMMI ION President Vice President 3