Loading...
HomeMy WebLinkAboutNational Bank of Indianapolis/CRC/$10M/loan agreement MASTER LOAN PROGRAM AGREEMENT This Master Loan Program Agreement (the "Agreement") is executed this 291" day of January, 2010, by and between The City of Carmel Redevelopment Commission("CRC")and The National Bank of Indianapolis (the"Lender"). 1. Defined Terms. Accrued Interest shall mean the amount of any interest that: (a) has accrued on the Advanced Funds;and (b) remains in the Loan Program Account. Adjusted Monthly Fee shall mean, for a given month, the Monthly Fee minus the Accrued Interest. Advance Date shall mean the date on which Lender deposits the Advance Amount into the Loan Program Account. The Advance Date shall be the date of the full execution of the Loan Agreement. Advance Amount shall mean $10,000,000.00. Advanced Funds shall mean all funds on deposit in the Loan Program Account,other than Accrued Interest. Agency shall mean any applicable:(a)governmental agency,board,commission,or department;or(b)other judicial, administrative, or regulatory body. Amortizing Payment Period shall mean, with respect to the Developer Loan, the period: (a) beginning on the expiration of the Interest Payment Period; and (b) ending on the date that is three years thereafter. Accordingly, the maturity date of the Developer Loan shall be the date that is five years after the Advance Date. City shall mean the City of Carmel, Indiana. Collateral shall mean a Qualified Developer's interest in: (a) an Installment Contract; (b) the Contract Payments for that Installment Contract; (c) the applicable Developer Loan Account; (d) the applicable Developer Loan Deposits; (e)the applicable Lock Box Account; (f)the applicable Lock Box Deposits; (g)the equipment, fixtures, or other materials acquired by the Qualified Developer pursuant to the Installment Contract; and (h) the Proceeds. Collateral Assignment shall mean a Collateral Assignment,Lock Box,and Security Agreement substantially in the form attached hereto as Exhibit B(modified as necessary to reflect the specific terms of the applicable Developer Loan). Contract Payments shall mean all payments to be made by CRC pursuant to an Installment Contract. CRC Financial Statement shall mean a financial statement that is:(a)prepared by or for CRC in accordance with the Laws and the customary practices of CRC; (b) reflects, with respect to a calendar year: (i) the Increment(regardless of whether all of such Increment actually is received by CRC during that calendar year), the Operating Expenses, and the Project Expenses; and (c)is certified as of a current date by the President and Executive Director of CRC as being accurate to the best of their knowledge after careful review of the statement. Debt ServicelPayment Coverage Ratio shall mean, with respect to a particular calendar year, the ratio of: (a)the following amount: (i)the Increment for that calendar year(regardless of whether all of such Increment actually is received by CRC during that calendar year); minus (ii) the Operating Expenses for that calendar year; minus (iii) the Project Expenses for that calendar year; to (b) the amounts that will be due during that calendar year with respect to the Junior Parity Obligations. Debt Service/Payment Coverage Threshold shall mean,with respect to a particular calendar year,an actual Debt Service/Payment Coverage Ratio of at least 1.25:1.0, as established by the CRC Financial Statement for such calendar year. Developer Loan shall mean a loan by Lender of the Advanced Funds to a Qualified Developer: (a) the proceeds of which shall be used to satisfy the obligations of the Qualified Developer under the applicable Installment Contract; and (b)the security for which is the applicable Collateral. Developer Loan is a loan to, and indebtedness of, the Qualified Developer(and not CRC). The primary obligations of CRC are those of a purchaser under the Installment Contracts,although,as part of the Loan Program and to induce Lender to make the Developer Loan, CRC is undertaking certain limited secondary obligations under individual Collateral Assignments and Tri-Party Agreements. Developer Loan Account shall mean an interest-bearing, FDIC-insured account with Lender that is owned jointly by Lender and the Qualified Developer,which account shall be dedicated specifically to: (a)receipt of Developer Loan Account Disbursements; and (b)subsequent disbursement of Developer Loan Proceeds in accordance with the terms and conditions of this Agreement, the applicable Disbursement Instructions, and the applicable Developer Loan Documents. The Developer Loan Account shall be: (a) established in accordance with the Loan Agreement; and (b)the"Borrower Loan Account" under the Loan Agreement. Developer Loan Account Disbursement shall mean a disbursement and deposit by Lender of proceeds of a Developer Loan into the Developer Loan Account in accordance with the terms and conditions of this Agreement. The Developer Loan Account Disbursements: (a)subsequently shall be disbursed to(or for the account of)the Qualified Developer as Developer Loan Proceeds in accordance with the terms and conditions of this Agreement,the applicable Disbursement Instructions,and the applicable Developer Loan Documents: and (b)are the "Borrower Loan Account Disbursements" under the applicable Loan Agreement. Developer Loan Deposits shall mean all funds on deposit in the Developer Loan Account(including interest that has accrued on such funds and remains in such Developer Loan Account). The Developer Loan Deposits are the"Borrower Loan Deposits" under the Loan Agreement. Developer Loan Documents shall mean documents evidencing and/or securing the Developer Loan, including without limitation, the Note, the Loan Agreement, and the applicable: (a) Collateral Assignment; (b) Mortgage (if the Qualified Developer is acquiring a real property interest pursuant to the applicable Installment Contract); and (c) Tri-Party Agreement. Developer Loan Proceeds shall mean the portion of a Developer Loan Account Disbursement that is disbursed by Lender from the Developer Loan Account to (or for the account of) a Qualified Developer in accordance with the terms and conditions of this Agreement, the applicable Disbursement Instructions, and the applicable Developer Loan Documents, The Developer Loan Proceeds are the"Loan Proceeds"under the applicable Loan Agreement. Disbursement Instructions shall mean commercially reasonable instructions to Lender with respect to the disbursement of the proceeds of a Developer Loan, which instructions shall specify that, initially, such proceeds shall be deposited into the applicable Developer Loan Account. Event of Default shall have the meaning set forth in Section 10. Fee Due Date shall mean, in the case of: (a) the first payment of the Adjusted Monthly Fee, the first day of the first calendar month following the expiration of the calendar month in which the Advance Date occurs;and (b) each subsequent payment of the Adjusted Monthly Fee, the first day of each calendar month. Notwithstanding the foregoing, if Lender does not timely deliver a Fee Notice, then the applicable Fee Due Date shall be delayed one day for each day that delivery of the Fee Notice is delayed. Fee Notice shall mean a written notice setting forth Lender's reasonable projection of the amount of the Adjusted Monthly Fee. Financial Consulting Firm shall mean H.J. Umbaugh or another nationally recognized firm that services as an independent financial advisor and/or financial consultant to governmental units. ZiDocumeNS"Shoup,lenny\Ciry of Carmel\NBI-MI-PA3Iastm Loan I9Fcb10 Program AgrccmenPNBl-MLPA v4.epd — -2- Increment shall mean the allocated property tax proceeds (i.e., the "increment") that, pursuant to IC 36-7-14-9, is generated from ad valorem real property taxes levied or imposed on or against real property located within allocation areas that have been established in the City pursuant to IC 36-7-14. Installment Contract shall mean an installment purchase contract executed by and between CRC and the Qualified Developer pursuant to which the Qualified Developer shall have the obligation to: (a)construct all or a portion of an improvement,building,or structure;and/or(b)acquire(and,if applicable,install)equipment, fixtures, or other materials required by CRC for the use, operation, or completion of such improvement, building, or structure; after which the Qualified Developer shall convey to CRC such improvement, building, structure, equipment, fixtures, and/or other materials (or portion thereof). Each Installment Contract shall: (a) incorporate payment terms that correspond with the payment terms in the Note that will evidence the Developer Loan to be made by Lender to the Qualified Developer; and (b) contemplate the execution of a Collateral Assignment and a Tri-Party Agreement. Installment Contract Certification shall mean a certification executed by the President of CRC, which certificate shall: (a)include as an attachment a fully executed copy of an Installment Contract;(b)identify the entity that is the'Developer"under such Installment Contract as the Qualified Developer for purposes of that Installment Contract and this Agreement;and(c) instruct Lender to make a Developer Loan to the identified Qualified Developer for the purpose of facilitating the ability of that Qualified Developer to satisfy its obligations as seller to CRC under that Installment Contract. Interest Payment Period shall mean, with respect to the Developer Loan, the period: (a) beginning on the Advance Date; and (b) ending on the date that is two years thereafter. Interest Rate shall mean a fixed rate equal to 5.3% per annum. Junior Parity Cap shall mean Junior Parity Obligations, the outstanding balance of which totals, in the aggregate, $115,500,000.00. Junior Parity Obligations shall mean indebtedness or contractual obligations of CRC that are payable from the Increment: (a)after payments due with respect to the Senior Debt;but(b) before any other indebtedness or contractual obligations of CRC that are payable from the Increment. Law shall mean any applicable federal, state,or local law, statute,ordinance, rule,or regulation,or any order of decree of any Agency. Loan Agreement shall mean the Loan Agreement substantially in the form attached hereto as Exhibit C (modified as necessary to reflect the specific terms of the applicable Developer Loan). Loan Program shall mean a program consisting of a single Developer Loan pursuant to which Lender shall make Advanced Funds available to a Qualified Developer in the form of a Developer Loan for the purpose of facilitating the ability of the Qualified Developer to satisfy its obligations as seller to CRC under the applicable Installment Contract. Loan Program Account shall mean an interest-bearing, FDIC-insured account with Lender that is owned by Lender; accordingly, Lender shall have the exclusive right to: (a) withdraw Advanced Funds and Accrued Interest;(b)withdraw,if authorized by CRC,Adjusted Monthly Fees,the Loan Program Fee,and/or other fees, charges, costs, or expenses; (c) advance Advanced Funds into Developer Loan Accounts as proceeds of Developer Loans; and (d) re-deposit funds withdrawn by Lender from Developer Loan Accounts. Loan Program Fee shall mean a fee in the amount of$37,500.00, payable by CRC to Lender on or before the Advance Date. Lock Box Account shall mean the"Lock Box Account"defined in,and established pursuant to,the applicable Collateral Assignment. Z.\Documents\Shoup,Jenny\Ciry of Carmel\N13I-MLPA\Master Loan 19Feb10 Program Agrcemen1V901-MLPA v4.npd -3 Lock Box Deposits shall mean all funds on deposit in a Lock Box Account(including accrued interest earned on such funds). Monthly Fee shall mean a monthly fee paid by CRC to Lender(or, upon authorization by CRC,withdrawn by Lender directly from the Loan Program Account) as consideration for administering the Loan Program in accordance with the terms and conditions of this Agreement, the amount of which shall be determined by multiplying the amount of the Advanced Funds as of the date of the determination of the fee by the Monthly Percentage. Monthly Percentage shall mean the percentage obtained by dividing the Interest Rate by 12. Mortgage shall mean a Real Estate Mortgage,Security Agreement,Assignment,and Fixture Filing in the form attached hereto as Exhibit F(modified as necessary to reflect the specific terms of the applicable Developer Loan). Note shall mean a Promissory Note in the form attached hereto as Exhibit D(modified as necessary to reflect the specific terms of the applicable Developer Loan). Offset/Addition Amount shall mean the amount by which the projected Adjusted Monthly Fee set forth in a Fee Notice either exceeded or fell short of the amount of the Adjusted Monthly Fee to which Lender actually was entitled for the month with respect to which such Fee Notice applied. Offset/Addition Notice shall mean a written notice: (a) stating that the projected amount of the Adjusted Monthly Fee set forth in a specified Fee Notice either exceeded or fell short of the amount of the Adjusted Monthly Fee to which Lender actually was entitled for the month with respect to which such Fee Notice applied; and (b) setting forth the Offset/Addition Amount. Operating Expenses shall mean all costs and expenses that: (a) are incurred (or to be incurred)by CRC in connection with its ongoing operations; and (b) are paid (or to be paid) from Increment. Outstanding TIF Bond shall mean CRC's taxable tax increment revenue bonds of 2008. Proceeds shall mean all additions, substitutions, replacements,extensions, renewals, and proceeds to or of any of: (a)an Installment Contract; (b)the Contract Payments for that Installment Contract;(c)the applicable Developer Loan Account; (d)the applicable Developer Loan Deposits; (e)the applicable Lock Box Account; (f) the applicable Lock Box Deposits; and/or(g) the equipment, fixtures, or other materials acquired by the Qualified Developer pursuant to that Installment Contract. Project Expenses shall mean all expenditures that:(a)are committed by CRC with respect to redevelopment projects; (b)are paid (or to be paid) from Increment; and (c) by their terms are not made subordinate to the Junior Parity Obligations. Project Site shall mean that certain real estate depicted and/or described on Exhibit A. The Project Site is comprised of real estate commonly is known as "Parcel 5", "Parcel 7", and "Old Town'. Property Tax Study shall mean a property tax study with respect to Increment, which tax study: (a) is prepared by a Financial Consulting Firm; (b) shall show debt service payable on the Senior Debt and on the Junior Parity Obligations; and (c) shall have been prepared within four months of the date on which it is submitted. Qualified Developer shall mean either Village Financial, LLC, or Carmel Theater Development Company, LLC, as designated by CRC in an Installment Contract Certification as the"Qualified Developer". Z:\Documenu\Shuup,Jenny\City or Carm<I\NBI-MLPA\Master Loan 19F610 Program Agreement NBI-MLPA v4.wpd -4- Senior Debt shall mean indebtedness or contractual obligations of CRC that are payable from the Increment, which indebtedness or contractual obligations have priority over all other indebtedness or contractual obligations of CRC that are payable from the Increment. Tri-Party Agreement shall mean a Tri-Party Agreement substantially in the form attached hereto as Exhibit E (modified-as necessary to reflect the specific terms of the applicable Developer Loan). 2. Loan Program. (a) General. Subject to the terms and conditions of this Agreement: (i) Lender agrees to the establishment of the Loan Program;and(ii)on the Advance Date,Lender shall deposit the Advance Amount into the Loan Program Account; provided that Lender's obligation to deposit the Advance Amount shall be subject to the reasonable determination by Lender that CRC meets the Debt Service/Payment Coverage Threshold. In connection with the establishment of the Loan Program, CRC either shall: (i) pay the Loan Program Fee to Lender; or (ii) authorize Lender to withdraw the Loan Program Fee directly from the Loan Program Account(or,if applicable,to subtract the amount of the Loan Program Fee from the Advance Amount immediately prior to the deposit of the Advance Amount into the Loan Program Account). (b) Program Purpose. Under IC §36-7-14-12.2, CRC has the statutory authority to "acquire by purchase, exchange, gift, grant, condemnation, or lease,or any combination of methods, any personal property or interest in real property neededfor the redevelopment of areas needing redevelopment that are located within the corporate boundaries of the unit". In order to facilitate the completion of redevelopment projects undertaken by CRC or under the auspices of CRC within the corporate boundaries of the unit, including projects on the Project Site, CRC has determined that it will best serve the interest of the community, from the standpoint of both human and economic welfare, for CRC to acquire by Installment Contract certain improvements,buildings,structures,equipment,fixtures,and other materials (all being "personal property or interest in real property needed for the redevelopment of areas needing redevelopment that are located within the corporate boundaries of the unit"). Under current economic conditions and in the current lending environment, the availability to developers of real estate loans and commercial loans in general is severely limited. That limitation substantially affects the ability of developers to finance and satisfy their obligations as sellers to CRC under Installment Contracts. Either: (i)financing is not available to sellers under installment contracts, with the result that developers are unable to satisfy their obligations as sellers to CRC under Installment Contracts;or(ii) when financing is available, the increased cost of the financing substantially increases the purchase price that CRC must pay under Installment Contracts. Accordingly, CRC adopted a resolution authorizing the creation of a"Loan Program to Facilitate Favorable Financing for Sellers under Installment Contracts", which loan program would be designed and intended to: (i) facilitate lenders providing loans to sellers under Installment Contracts: "[(A)] pursuant to which the Commission is acquiring by installment purchase,in accordance with§IC 36-7.14-12.2,'any personal property or interest in real property needed for the redevelopment of areas needing redevelopment that are located within the corporate boundaries of the unit';and[(B)]that are designated by the Commission for participation in the loan program"; and (ii) result in: (A) developers being able to obtain Developer Loans, which enables developers to satisfy • their obligations as sellers to CRC under Installment Contracts;and(B)decreasing the cost of financing available to developers,which decreases the purchase price that CRC must pay under Installment Contracts. (c) Liability Statement. (i) Developer Loans are not loans to, or indebtedness of, CRC. Developer Loans are loans to, and indebtedness of, Qualified Developers (and not CRC). Accordingly, CRC has no obligation under any Z:\nocuments\Shoup,Jenny City ofCarmcl\NRC'MLPA'Masler Loan 19F610 Program Agreemem'NR6MLPA vA wpd -5- circumstances to repay any Developer Loan. The primary obligations of CRC are those of a purchaser under the Installment Contracts,although,as part of the Loan Program and to induce Lender to make the Developer Loan, CRC is undertaking certain limited secondary obligations under individual Collateral Assignments and Tri-Party Agreements, all in accordance with §IC 36-7-14. • Advanced Funds are not loans to, or indebtedness of, CRC. The Loan Program Account is the sole property of Lender, and CRC has no ownership of, or interest in,the Loan Program Account. Accordingly, CRC has no obligation under any circumstances to repay Advanced Funds. If there is an Event of Default, then the terms and conditions of Section 11 shall apply, and: (A) as the Loan Program Account is the sole property of Lender, Lender may withdraw any or all Advanced Funds; and (B) the sole liability of CRC shall be to:.(1) pay to Lender any unpaid amounts of the Monthly Fee; and(2)reimburse Lender for all claims,judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys'fees)incurred by Lender as a result of the Event of Default. CRC shall not be entitled to require a direct withdrawal by Lender from the Loan Program Account to pay any amounts due to Lender if there is an Event of Default; provided that the foregoing shall not affect the right of Lender to withdraw any or all Advanced Funds from the Loan Program Account pursuant to Section 11. (d) Withdrawal Authorization. (i) CRC: (A)at its election, either may: (1)pay each Adjusted Monthly Fee and Loan Program Fee directly to Lender; or(2) authorize Lender to withdraw the applicable Adjusted Monthly Fee and/or the Loan Program Fee directly from the Loan Program Account (or, if applicable, to subtract the amount of the Loan Program Fee from the Advance Amount immediately prior to the deposit of the Advance Amount into the Loan Program Account); and (B) may authorize Lender to withdraw any other fee, charge, cost, or expense directly from the Loan Program Account; provided that any such authorization by CRC may be made only by (and all references in this Agreement to authorization by CRC shall be deemed to require) written notice delivered to Lender,which notice shall be executed by one or both of CRC's President (currently Ronald E. Carter) or Executive Director (currently Les Olds), or such other person as may be authorized in writing by CRC's President or Executive Director. (ii) Lender agrees that, if CRC authorizes Lender to withdraw any amount as permitted pursuant to Subsection 2(d)(i), then: (A) Lender promptly shall withdraw such amount and apply it to pay the applicable Adjusted Monthly Fee, Loan Program Fee, or other fee, charge, cost, or expense; and (B)CRC shall not be subject to any additional fees,charges, or penalties that accrue after the date of such authorization with respect to the amount authorized by CRC to be withdrawn directly from the Loan Program Account; provided that, if, at any time, there are insufficient Advanced Funds in the Loan Program Account to pay any amount authorized by CRC to be withdrawn directly from the Loan Program Account, then CRC promptly shall: (A) pay the amount of the deficiency to Lender; or (B) provide for the prompt payment of the amount of the deficiency out of Developer Loan Deposits. Z:1Document&Shoup.Lenny\Cny of Carmel W BI-MLPAV 1uur Loan 19Feb10 Program AgrcementMIBI-MLPA va wpd — -6- • 3. Developer Loan. (a) Obligation. Subject to the terms and conditions of this Agreement, Lender shall make a Developer Loan to a Qualified Developer; provided that, notwithstanding anything to the contrary set forth herein or in any Developer Loan Document, Lender shall have no obligation to make a Developer Loan (or any Developer Loan Account Disbursement) until such time as Lender determines that: (i) each of the requirements and conditions set forth in this Agreement has been met or waived in writing by Lender; (ii)except for requirements and conditions waived in writing by Lender,each such requirement and condition continues (and will continue)to be met; (iii)each of the representations and warranties set forth in this Agreement is (and will continue to be) true, correct, and accurate; (iv) the Debt Service/Payment Coverage Threshold is(and will continue to be)met;and (v)CRC is not in default under: (A)this Agreement; (B)any Installment Contract; or(C)any Developer Loan Document to which CRC is a party. So long as the terms and conditions of this Subsection are satisfied, and notwithstanding anything to the contrary set forth in any Developer Loan • Document: (i)CRC shall have the right to provide Disbursement Instructions to Lender;and (ii) Lender shall follow the Disbursement Instructions, so long as the Disbursement Instructions are consistent with Lender's normal lending practices. (b) Term. The Developer Loan shall: (i) have a term that ends on the date that is five years after the Advance Date; (ii) provide that interest shall accrue on the Developer Loan Account Disbursements at the Interest Rate; (iii) provide for payments of interest only at the Interest Rate during the Interest Payment Period,which payments shall be payable on the Fee Due Date; and (iv) provide for payments of principal and interest during the Amortizing Payment Period, which payments shall be: (A) in an amount that will amortize the balance of the Developer Loan over a 20 year period at the Interest Rate; and (B) payable on the Fee Due Date. (c) Documentation. The Developer Loan shall be:CO secured by an assignment of, and a security interest in,the Collateral pursuant to the Collateral Assignment; and(ii)evidenced by the Note. The Developer Loan Documents shall include one or more Collateral Assignments and one or more Tri-Party Agreements. 4. Adjusted Monthly Fee. (a) Payment. On or before each Fee Due Date, CRC either shall: CO pay the Adjusted Monthly Fee to Lender:or(ii)authorize Lender to withdraw the Adjusted Monthly Fee directly from the Loan Program Account. The Adjusted Monthly Fee shall be: CO in the amount determined pursuant to Subsection 4(b); (ii)paid in arrears; and(iii)subject to adjustment pursuant to Subsection 4(d). (b) Determination. With the deposit of the Advance Amount, and thereafter within the period between the first and fifth business days of each month during which there are Advanced Funds, Lender shall deliver to CRC a Fee Notice. Because the Adjusted Monthly Fee to which Lender is entitled will fluctuate based upon the amount of the Advanced Funds, the amount set forth in the Fee Notice shall be: (i)based on Lender's reasonable projection of the amounts of: (A)the Advanced Funds; and (B)the Accrued Interest;for the applicable 7-'\Ducuments\Shoup,Jcnny\City of Carmcl!•BLMI.PAVdaster Loan 19E610 Program Agrcemcm\NBI-MLPA v4.wpd n -7 month; and (ii) the amount of the Adjusted Monthly Fee due and payable by CRC on or before the next Fee Due Date. (c) Interest Withdrawal. On the first day of each month, Lender shall withdraw the Accrued Interest from the Loan Program Account. (d) Adjustment. If the projected amount set forth in a Fee Notice was more or less than the actual amount to which Lender was entitled for the month with respect to which such Fee Notice applied,then,with the next Fee Notice,Lender shall deliver to CRC an Offset/Addition Notice. Notwithstanding the terms and conditions of Subsection 4(b),on or before the next Fee Due Date, CRC shall pay to Lender(or authorize Lender to withdraw directly from the Loan Program Account) the amount set forth in the current Fee Notice, adjusted by the amount of the Offset/Addition Amount, as set forth in the Offset/Addition Notice. (e) Late Charges. If CRC fails to pay in full any Adjusted Monthly Fee within ten days after the applicable Fee Due Date, then CRC, in each case, shall pay to Lender, for the purpose of defraying the expenses incidental to handling late payments, a charge equal to the greater of: (i)$20.00;or(ii) 10.3%of the unpaid and overdue amount(which percentage reflects the Interest Rate plus 5%); provided that such fee shall not apply if CRC has authorized Lender to withdraw the Adjusted Monthly Fee directly from the Loan Program Account. The payment by CRC of the late charges set forth in this Subsection shall not: (i)cure,or constitute a waiver of, any Event of Default;or(li)constitute a waiver of any right or remedy of Lender hereunder or under the Collateral Assignments or the Tri-Party Agreements. 5. Expenses. CRC agrees to reimburse Lender for(or authorize Lender to withdraw directly from the Loan Program Account the amount expended by Lender for)any and all reasonable fees,charges,costs,and expenses incurred by Lender with respect to the Loan Program (including, without limitation: (a) depositing the Advance Amount into the Loan Program Account; (b) administering the Loan Program; and/or (c) exercising any right or remedy of Lender hereunder); provided that, CRC shall not be obligated to reimburse Lender for any fees, charges, costs, and expenses that is an obligation of a Qualified Developer pursuant to the Developer Loan Documents. 6. Advance Amount Conditions. The obligation of Lender to advance the Advance Amount into the Loan Program Account on the Advance Date shall be subject to,and conditioned upon,the satisfaction of the following conditions and requirements, unless expressly waived by Lender in writing: (a) Execution and delivery by CRC of this Agreement; (b) Execution and delivery of such documents or instruments as Lender reasonably may require with respect to the legal organization, formation, and existence of CRC, which documents and instruments shall be in form and substance reasonably acceptable to Lender and its counsel; (c) Execution and delivery of such resolutions, consents, certifications, and authorizations by CRC as Lender or its counsel reasonably may require with respect to the Loan Program,which resolutions,consents,certifications,and authorizations shall be in form and substance reasonably acceptable to Lender and its counsel; (d) Execution and delivery of an opinion of CRC's counsel with respect to: (i) the legal existence of CRC;(ii)due authorization of:(A)the execution and delivery of this Agreement; and (B) payment and performance by CRC of its obligations under this Agreement; and (iii) the enforceability of this Agreement; which opinion shall be in form and substance reasonably acceptable to Lender and its counsel; 7.9Documents■Shoup,Jenny\City orCarmel\NBi.MLPA\Maslur Loan 19F610 Program AgreementW BI-MLPA v4.wpd ■ -8- (e) CRC shall have established to the satisfaction of Lender that CRC is meeting the Debt Service/Payment Coverage Threshold; (f) CRC shall have: (i) paid the Loan Program Fee to Lender;or(ii) authorized Lender to withdraw the loan Program Fee directly from the Loan Program Account(or,if applicable, to subtract the amount of the Loan Program Fee from the Advance Amount immediately prior to the deposit of the Advance Amount into the Loan Program Account); and (g) Satisfaction of the Developer Loan Conditions, with respect to the first Developer Loan Account Disbursement, set forth in Section 7 below. 7. Developer Loan Conditions. The obligation of Lender from time to time to make the Developer Loan,make Developer Loan Account Disbursements,and disburse Developer Loan Proceeds shall be subject to, and conditioned upon, the satisfaction of the following conditions and requirements, unless expressly waived by Lender in writing: (a) Execution of an Installment Contract by CRC and an entity designated by CRC as a Qualified Developer; (b) Delivery by CRC'of an Installment Contract Certification; (c) Execution and delivery by the Qualified Developer of the applicable Developer Loan Documents; (d) Execution and delivery by CRC of the applicable Collateral Assignment and Tri-Party Agreement; (e) Satisfaction by the Qualified Developer of all of the conditions and requirements in the Loan Agreement evidencing the Developer Loan; (f) Delivery by CRC of the Disbursement Instructions; (g) Execution and delivery of such resolutions, consents, certifications, and authorizations by CRC as Lender or its counsel reasonably may require with respect to: (i)the execution and delivery of the Installment Contract,the Collateral Assignment, and the Tri-Party Agreement; and (ii)payment and performance by CRC of its obligations under the Installment Contract, the Collateral Assignment, and the Tri-Party Agreement; which resolutions, consents, certifications, and authorizations shall be in form and substance reasonably acceptable to Lender and its counsel; (h) Execution and delivery of an opinion of CRC's counsel with respect to: (i) due authorization of: (A) the execution and delivery of the Installment Contract, the Collateral Assignment, and the Tri-Party Agreement; and(B) payment and performance by CRC of its obligations under the Installment Contract, the Collateral Assignment, and the Tri-Party Agreement; and (ii) the enforceability of the Installment Contract, the Collateral Assignment and the Tri-Party Agreement; which opinion shall be in form and substance reasonably acceptable to Lender and its counsel; 8. Covenants. CRC acknowledges and agrees that, during such time as there are Advanced Funds, outstanding Developer Loan Account Disbursements,and/or outstanding Developer Loan Proceeds,CRC at all times shall comply with the following covenants and agreements, each of which is a condition to the obligations of Lender under this Agreement: (a) CRC shall keep the Installment Contracts in full force and effect,without any defaults by CRC. Z9Donumcnts\Shoup,Lenny\City of CannelW i31-MLPAUIasier Loan 19Feb10 Program AgrecmemW131-MLPA sd.rsyd -9 (b) Without the prior written consent of Lender,CRC shall not amend or modify any term or condition of an Installment Contract, if such amendment or modification would reduce the amount of, or extend the time for payment of, any Contract Payment; provided that, in the case of an amendment or modification that would not reduce the amount of, or extend the time for payment of, any Contract Payment, CRC shall provide to Lender written notice of such amendment or modification. (c) CRC shall comply with all Laws in the performance of its obligations under the Installment Contracts, this Agreement, the Collateral Assignments, and the Tri-Party Agreements. (d) If any proceeding, inquiry,or investigation is pending or threatened against CRC or any property of CRC, an adverse decision with respect to which would materially and adversely affect the ability of CRC to perform its obligations under the Installment Contracts, this Agreement, the Collateral Assignments, or the Tri-Party Agreements; then CRC shall: (i) notify Lender immediately in writing; (ii) prepare and submit to Lender for its reasonable approval a written plan for addressing and/or responding to such proceeding, inquiry, or investigation; and (iii) address and/or respond to such proceeding, inquiry, or investigation in accordance with the plan approved by Lender. (e) CRC shall maintain funds on deposit in one or more accounts established with Lender, the total of which deposits averages in the aggregate not less than $2,500,000.00 per year. The Advanced Funds and the Developer Loan Deposits shall be applied towards the satisfaction of the foregoing requirement. (f) CRC shall take all actions necessary to maintain the truth and accuracy in all respects of all representations and warranties made by CRC in this Agreement,the Collateral Assignments, and the Tri-Party Agreements. (g) CRC shall meet the Debt Service/Payment Coverage Threshold,measured annually as of each December 31. (h) CRC shall deliver to Lender, on or before January 31 of each calendar year: (i) a CRC Financial Statement with respect to the calendar year ending on the immediately prior December 31; and (ii) a certificate: (A) setting forth the actual Debt Service/Payment Coverage Ratio for the calendar year ending on the immediately prior December 31; and (B) pursuant to which CRC certifies that, as of the immediately prior December 31, it continues to meet the Debt Service/Payment Coverage Ratio Threshold. (i) CRC shall deliver to Lender, within 120 days after the end of CRC's fiscal year: (A) balance sheets and statements of income and expenses, which balance sheet and statements shall: (1) be prepared according to standard practices; (2) show in detail all assets, liabilities, equity, income, and expenses of CRC; and (3) be certified by CRC; and (B) a Property Tax Study. (j) CRC shall deliver to Lender,within 120 days after the end of CRC's fiscal year, the final audit report, prepared by the Indiana State Board of Accounts for the City of Carmel, Indiana. (k) Without the prior written consent of Lender, CRC shall not incur Junior Parity Obligations in excess of the Junior Parity Cap. CRC may incur Junior Parity Obligations in addition to the Grant Payment Obligations, the Regions Obligations, and the Mercantile Obligations without the prior written consent of Lender so long as: (i) the Junior Parity Obligations, in the aggregate (including the Junior Parity Obligations that CRC is seeking to Z>llocuments'Shoup,Jenny\Cav of Carmel\NBI.MLPAVvtasrcr Loan 19F610 Program AgreemcntlNBl.MLPA vJ wpd -1 u- incur), do not exceed the Junior Parity Cap; and (b) CRC will be continue to meet the Debt ServicelPayment Coverage Threshold. (I) Without the prior written consent of Lender, CRC shall not incur any Senior Debt in addition to the Outstanding TIF Bond. 9. Representations. CRC represents and warrants to, and agrees with, Lender that: (a) CRC is,and shall continue to be,a redevelopment commission validly existing under the laws of the State of Indiana. (b) CRC has taken the necessary actions to authorize the execution and delivery of the Installment Contracts, this Agreement, the Collateral Assignments, and the Tri-Party Agreements, and no term or condition of any of the foregoing contravenes,or is in conflict with, any resolution of CRC. (c) Upon execution and delivery of each Installment Contract, this Agreement, each Collateral Assignment, and each Tri-Party Agreement, each of the foregoing shall: (i) constitute a legal, valid, and binding obligation of CRC; and (ii) be enforceable in accordance with its terms and conditions and the Laws. (d) None of the execution and delivery of, consummation of the transactions and borrowing contemplated in, or compliance with the terms and conditions of, the Installment Contracts, this Agreement, the Collateral Assignments, or the Tri-Party Agreement shall conflict with,or constitute a default under or a violation of: (i) any of the terms or conditions of any contract or other instrument to which CRC is, or will be, a party; or (U) any Law. (e) CRC is not in default in the performance, observance, or fulfillment of any of the terms or conditions of any contract or other instrument to which it is a party, or by which it is bound, the result of which default would adversely affect the ability of CRC to perform its obligations under the Installment Contracts, this Agreement, the Collateral Assignments,or the Tri-Party Agreements. (f) All financial statements and other financial data that have been,or shall be,furnished to Lender by CRC: (i) are, and shall be, true, correct, and accurate in all material respects; and (ii) reflect, and shall reflect, fairly the financial condition of CRC. (g) CRC is not"insolvent"(as defined in Section 101 of the Federal Bankruptcy Code). (h) CRC is not, and shall not be, engaged principally, or as one of its significant activities, in the business of extending credit for the purpose of purchasing or carrying any margin stock(as defined in Regulation U of the Board of Governors of the Federal Reserve System). The Advanced Funds shall be used only to provide Developer Loans. CRC shall not request that Lender make a Developer Loan: (i) for the purpose of: (A) purchasing or carrying any margin stock;or(B)extending credit to others for the purpose of purchasing or carrying any margin stock; or (ii) for any purpose that violates or is inconsistent with the provisions of Regulations G, U, or X of the Board of Governors of the Federal Reserve System. If requested by Lender,CRC shall furnish to Lender a statement in conformity with the requirements of Federal Reserve Form U-1. (i} No filing or registration with any Agency is necessary in connection with: (i) the execution and delivery by CRC of the Installment Contracts, this Agreement, the Collateral Assignments, and/or the Tri-Party Agreements; or (ii) the performance by CRC of its obligations under the Installment Contracts, this Agreement, the Collateral Assignments, and/or the Tri-Party Agreements. Z9Documems Shoup,Jenny\City of Carmel\NNI-MLPA'.tJzster Loan 19Peh10 Program Agreement\NI3I-MLPA visspd -t i- (j) No proceeding, inquiry, or investigation is pending or, to the best of CRC's knowledge,threatened against,or affects,CRC or any property of CRC,an adverse decision with respect to which would adversely affect the ability of CRC to perform its obligations under the Installment Contracts,this Agreement,the Collateral Assignments,or the Tri-Party Agreements. (k) All information furnished by CRC to Lender prior to the date hereof is true,accurate, and correct in all material respects. All representations,warranties,and agreements made by CRC under,or in connection with,this Agreement, the Collateral Assignments, or the Tri-Party Agreements shall: (a) be deemed to be effective as of the Advance Date; and (b) survive the deposit of the Advance Amount into the Loan Program Account; notwithstanding any investigation or inquiry made by or on behalf of Lender. All statements contained in any certificate or financial statement delivered by CRC to Lender shall constitute representations and warranties made by CRC hereunder. CRC acknowledges that Lender is relying,and is entitled to rely, upon each of the representations, warranties, covenants, and agreements made by CRC in this Agreement, the Collateral Assignments, and the Tri-Party Agreements in deciding to: (a) enter into this Agreement; (b) establish the Loan Program; (c) deposit the Advance Amount into the Loan Program Account on the Advance Date; (d)make the Developer Loan and Developer Loan Account Disbursements;and(e)disburse Developer Loan Proceeds. The obligation of Lender from time to time to: (a) advance the Advance Amount into the Loan Program Account; (b) make the Developer Loan or a Developer Loan Account Disbursement; and/or (c)disburse any Developer Loan Proceeds;shall be subject to, and conditioned upon, the truth and accuracy of each of the representations,warranties and agreements in this Section, unless expressly waived by Lender in writing. 10. Events of Default. Each of the following shall constitute an"Event of Default"by CRC for purposes of this Agreement, the Collateral Assignments, and the Tri-Party Agreements: (a) Any failure by CRC to make when due any payment owed to Lender under this Agreement, the Collateral Assignments, or the Tri-Party Agreements; provided that, in the case of the first two such failures in any 12 month period, it shall not be an Event of Default unless the failure continues for a period of five days after the due date for such payment. (b) Any representation or warranty made by CRC in this Agreement, the Collateral Assignments, or the Tri-Party Agreements is false in any material respect at the time made or deemed to be made. (c) Any failure to comply with any other term or condition of this Agreement, the Collateral Assignments,or the Tri-Party Agreements, if such failure continues for a period of 30 days after Lender delivers written notice of such failure to CRC;provided that,if any failure by CRC is of a nature that it reasonably cannot be cured within 30 days after Lender delivers written notice of such failure to CRC,then such failure shall not constitute an Event of Default so long as CRC: (i) commences a cure of such failure within 15 days after Lender delivers written notice of such failure to CRC; and (ii) diligently pursues the cure of such failure to completion within 60 days after Lender delivers written notice of such failure to CRC. (d) The change in any Law that causes the transactions contemplated by this Agreement,the Collateral Assignments, and/or the Tri-Party Agreements to be unlawful. (e) The liquidation, sale,transfer,conveyance,assignment,pledge,or other disposition of substantially all of the assets of CRC. (f) CRC: (i) institutes or consents to any proceedings: (A) in insolvency or bankruptcy; (B) for the adjustment, liquidation, extension or composition, or arrangement of debts; or Z:Documenis'Shoup,fenny\Ciiy of CarmepNBI-MIPA'Mastcr Loan 19Feb IO I'ragram AgrecmenflNBI.M1PA v4.npd -12- • (C)for any other relief; under any Law with respect to the relief or reorganization of debtors; (ii) is adjudicated a bankrupt, files an answer admitting bankruptcy or insolvency, or in any manner is adjudged insolvent; (iii) makes an assignment for the benefit of creditors; or (iv) admits in writing an inability to pay debts as they become due. (g) Any proceeding: (i) in insolvency or bankruptcy; (ii) for the adjustment, liquidation, extension, or arrangement of debts; or (iii)for any other relief; under any Law with respect to the relief or reorganization of debtors is instituted against CRC,and such proceeding is not discharged or dismissed within 60 days. (h) A substantial portion of the property or assets of CRC, is placed in the hands of any receiver, trustee, or other officer or representative of any court, and such receiver,trustee, or other officer or representative is not discharged or dismissed within 60 days, or CRC consents, agrees, or acquiesces to the appointment of any such receiver, trustee, or other officer or representative. (i) An assignment or delegation by CRC of any of its rights or obligations under this Agreement,the Collateral Assignments,or the Tri-Party Agreements without the prior written consent of Lender. 11. Remedies. CRC expressly agrees that time is of the essence of this Agreement. If there is an Event of Default,then,at any time thereafter until the Event of Default is cured, Lender may:(a)withdraw any or all Advanced Funds from the Loan Program Account;(b)elect not to advance the Advance Amount into the Loan Program Account; (c) elect not to make any further: (i) Developer Loan Account Disbursements; and/or (ii) disbursements of Developer Loan Proceeds; and/or (d) exercise any additional remedies available to Lender under any Developer Loan Documents (including, without limitation, the Tri-Party Agreements). Lender may disburse to itself the amount of any reasonable costs and expenses incurred by Lender in exercising or enforcing any of its rights or remedies hereunder. 12. Books and Records. CRC shall: (a) maintain in CRC or City offices accurate and detailed books and records of the Increment, payments on the Senior Debt, payments on the Junior Parity Obligations, the Operating Expenses, and the Project Expenses; and (b) permit Lender and its employees and attorneys reasonable access to such books and records for the purpose of reviewing,inspecting,auditing,and copying the books and records that relate to the CRC Financial Statements for:(i)the calendar year in which Lender is accessing the books and records; and (ii) the two calendar years immediately prior to that calendar year. Lender shall: (a)keep confidential the CRC Financial Statements,copies made by or for Lender of the books and records maintained by CRC, and amounts and information stated in,or disclosed by,the CRC Financial Statements and such books and records; and (b) not disclose to any person or party any CRC Financial Statement, copies made by or for Lender of the books and records maintained by CRC, or amounts and information stated in,or disclosed by, the CRC Financial Statements and such books and records;provided that Lender may make disclosures and provide copies as is required: (a) for Lender to comply with Laws; (b) by binding order of any Agency having jurisdiction; (c)to complete audits of Lender, this Agreement, and the Development Loans;(d)to enforce the terms and conditions of this Agreement or exercise any of its rights and remedies hereunder; and (e) to its attorneys under privilege of client confidentiality. 13. Notice. Any notice required or permitted to be given by either party to this Agreement shalt be in writing,and shall be deemed to have been given when:(a)delivered in person to the other party; (b) sent by facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to Lender at 107 North Pennsylvania Street, Suite 700, Indianapolis, Indiana 46204, Facsimile: 317-261-9696,Attn:Jason Boyewsky;and to CRC at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Facsimile: 317-844-3498, Attn: Les Olds,with a copy to: Karl P. Haas, Esq., Wallack Somers & Haas, PC, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317-231-9900. Either party may change its address for notice by delivering notice to the other party as provided above. Z:Documcnts\Shoup.Jenny\City of CarmchNHl.MLPA\Master Loan IcFebIO Program Agreement\NHI-MLPA v4.wpd -13- 14. Miscellaneous. (a) No act,delay,or omission by Lender shall constitute,or be construed to be,a waiver by Lender of its rights and remedies hereunder. No waiver by Lender of any Event of Default shall constitute a waiver of,or consent to,any subsequent Event of Default. Each and every right and remedy herein conferred upon,or reserved to, Lender: (i)is cumulative,and is not intended to be exclusive of any other remedy or remedies; and (ii) shall be in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity. No delay or omission by Lender in the exercise of any right or remedy shall constitute,or be construed to be,a waiver of,or an acquiescence in,any Event of Default,and every right and remedy given to Lender by this Agreement may be exercised from time to time,as often,and in such order as may be deemed to be expedient by Lender. (b) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana,without regard to principles of conflicts of law. All proceedings arising in connection with the Loan Documents shall be tried and litigated only in the state courts in Marion County, Indiana, or the federal courts with venue that includes Marion County, Indiana. The parties waive, to the extent permitted under applicable law and with respect to any proceeding brought in accordance with the terms and conditions of this Subsection: (i)the right to a trial by jury; and(ii)any right to assert the doctrine of"forum non conveniens" or object to venue. (c) If any one or more of the terms or conditions of this Agreement for any reason shall be held to be invalid, then: (i) such invalidity shall not affect any other provision of this Agreement;and(ii)this Agreement shall be construed as if such invalid term or condition had never existed. The invalidity of any term or condition of this Agreement in any jurisdiction shall not affect the validity of such term or condition in any other jurisdiction. (d) The terms and conditions of this Agreement shall be binding upon, and inure to the benefit of: (i) CRC and its successors and assigns; and (ii) Lender and its successors and assigns. Notwithstanding anything to the contrary set forth herein, CRC shall not have the right to assign or delegate any of its rights or obligations hereunder without the prior written consent of Lender, and any purported assignment or delegation in the absence of such consent shall be void. (e) Nothing contained in this Agreement, the Collateral Assignments, or the Tri-Party Agreements shall create any: (i) relationship between CRC and Lender other than the relationship expressly stated; or(ii)joint venture or partnership between CRC and Lender. (f) This Agreement may be signed in one or more counterparts, each of which shall constitute but one and the same instrument. All amendments or modifications of this Agreement must be set forth in a writing executed by CRC and Lender. All Exhibits referenced in this Agreement are attached hereto and incorporated herein by reference. Z:Documcros'Shoup,Jenny'City of Carmel'.NBI-MLPAR.laster Loan IQFet10 Program Agreement NBI-MLPA vawld IN WITNESS WHEREOF, CRC and Lender have executed this Agreement as of the date set forth above. THE CITY OF CARMEL REDEVELOPMENT COMMISSION Bycseetra Ronald E. Carter, President NATIO •L BANK OF INDIANAPOLIS 1 61 By: .�, .. s .dad 1 'r kV Print•.. 1��' l�Sir 'eta Title: V l Ct- Plr 5 n %:\Ihrcumenu'Shtmp,Jenny CBy of ramml.NBI-MLPA\Master loin 2RJan 1O Program Abnecmenl',NISI hi LI'A.r2wpdwpd -15- INDEX TO EXHIBITS Exhibit A Project Site (comprised of Parcel 5, Parcel 7, and Old Town) Exhibit B Form of Collateral Assignment Exhibit C Form of Loan Agreement Exhibit D Form of Note Exhibit E Form of Tri-Party Agreement Exhibit F Form of Mortgage %'.Documentsgrhoup,)enny`,(:ily of CarmdINRLMI PA\Master Loan 28Jan 10 Program AgreemenINI$I-MLPA.v2wpd.wpd -16- w1 g x 1 S. �� mks 1- . 4 [ 3RD a—NUE SW .r 1• C a--....: a a .4� . ±�1 1' "-.7- 11; 21."47.::1.-.71F..._2s 1. s 23 9. w. „?vW' f ai �p 'l��— 5, i, ;Pi': +t 1 Id m. l __ — — gr me • 0 a to 17' in w m° I T 1 — ((1 w w ' a m m ° ° n w y m I I O w E w o O b LL _ rr- RANGE LINE ROAD c(cgcS ,51_\C e o a 4 g o° D. a c O lOLC'n O Q Lao a Ca c a ti co0 a° P O °D cn q c O a c3 °Oi d a Fla g - ID p =,o 0❑ oo o.-P oa°� ❑o d' q C a n° ° J - o ' Cl. o aO 1 t s __ ca a . 0 a o 0 oo°o C 0 as o In O CS • no limb-1%1 .-`i; a A r T � l �', r ■Va "firajVdi� I a r��� ��r� ;II- 30 - --- lic-C +4 "F/ L r •Jf l inwifa ...r Sir �,� , ,r .,f4:,:tri.,rosi■ 4,,. -.Ada: cet v . � • r � 1 � � ice: �* i �. •. cry �r� r.r7 4� 7 PAN s al LK r`I 41∎N), �� l �� ■ ccc. r. L J r_i North • EXHIBIT B FORM COLLATERAL ASSIGNMENT, LOCK BOX,AND • SECURITY AGREEMENT LAmeridAl a Collate a Assgnmentreac dime•a rlialallmen tontTac£ s:ex" °ec t d This Collateral Assignment, Lock Box, and Security Agreement (the "Agreement"), is executed as of the day of ,2010,by and among having its principal office at (the "Assignor'), The National Bank of Indianapolis, having its principal office at 107 North Pennsylvania Street, Suite 700, Indianapolis, Indiana 46204(the"Assignee"),and The City of Carmel Redevelopment Commission,having its principal office at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032 ("CRC"). 1. Defined Terms. Account Interest shall mean interest earned on funds on deposit in the Lock Box Account. Borrower Loan Account shall mean the"Borrower Loan Account"defined in, and established pursuant to, the Loan Agreement. Borrower Loan Account Interest shall mean interest that: (a) has accrued on the funds on deposit in the Borrower Loan Account; and (b) remains in the Borrower Loan Account. Borrower Loan Deposits shall mean all funds on deposit in the Borrower Loan Account(including Borrower Loan Account Interest). Collateral shall mean Assignor's interest in:(a)the Borrower Loan Account;(b)the Borrower Loan Deposits; (c) the Lock Box Account; (d) the Lock Box Deposits; and (e) the Proceeds. Each time an Installment Contract is executed, amend to add in that Installment Contract, the Contract Payments for the Installment Contract, and the Equipment to be acquiredlinstalled under that Installment Contract. Construction Contract shall mean the"Construction Contract" defined in a particular Installment Contract, which shall be executed by Assignor and the entity that will act as the general contractor or construction manager in connection with the completion of the Improvements contemplated under such Installment Contract. Contract Payments shall mean all payments to be made by CRC pursuant to the Installment Contract. Debt Service shall mean regular(non-default)monthly payments of interest and/or principal due and payable by Assignor to Assignee pursuant to the Note. Equipment shall mean the equipment to be acquired and installed by Assignor pursuant to the Installment Contracts and the Equipment Acquisition Agreements contemplated thereunder. As Installment Contracts are executed,there will be different equipment definitions,each of which will fall under the heading of"Equipment For example--Acoustical Equipment will have the meaning in a specific Installment Contract, and will be part of the Equipment. Equipment Acquisition Agreement shall mean the "Equipment Acquisition Agreement" defined in a particular Installment Contract, which shall be executed by Assignor and the entity from which Borrower will acquire the Equipment contemplated under such Installment Contract. Event of Default shall have the meaning set forth in Section 10. Future Advances shall mean advances that may be made by Assignee in accordance with the terms and conditions of the Loan Documents and the Tri-Party Agreement for purposes other than financing payment of: (a)the actual, out-of-pocket costs incurred by Assignor to: (i)acquire and install(or cause the installation of)the Equipment in accordance with the terms and conditions of the Installment Contracts;and/or(ii)acquire the materials to construct,and construct,the Improvements in accordance with the Installment Contracts and the Construction Contracts; or(b) Lender Fees. Improvements shall mean the improvements to be completed by Assignor pursuant to the Installment Contracts and the Construction Contracts contemplated thereunder.As Instal latent Contracts areexecuted, there will be,(drfferent improvements definitions,each of which will,fall under,;the;heading of "Improvements" Forexample=-Theaterlmprovementswillhavethemeaniriginaspecificlnstallment Contract,and will be part of the Improvements: Indebtedness shall have the meaning set forth in Section 3. Installment Contract shall mean each°Installment Purchase Contract"executed by and between Assignor and CRC. Installment Payments shall have the meaning set forth in the applicable Installment Contract. Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and/or decrees. Lender Fees shall mean regular(non-default)lender fees,costs,and expenses due and payable by Assignor to Assignee pursuant to the Master Loan Program Agreement and/or the Loan Documents,including,without limitation,costs and expenses: (a)to close the Loan;and(b)that,under the terms and conditions of the Loan Documents, expressly constitute Lender Fees. Loan shall mean a loan from Assignee to Assignor made in accordance with the terms and conditions of the Loan Documents, which loan is in the original principal amount of 310,000,000.00. Loan Agreement shall mean that certain Loan Agreement (Equipment and Improvements) of even date herewith executed by and between Assignor and Assignee. Loan Documents shall mean the documents evidencing and/or securing the Loan,including,specifically,the Note, the Loan Agreement, and any Mortgage. Lock Box Account shall mean an interest-bearing, FDIC insured account with Assignee that: (a) is owned jointly by Assignor and Assignee;(b)provides that, notwithstanding the joint ownership,Assignee exclusively has the right to withdraw funds therefrom; and (c) specifically is dedicated to: (i) the receipt of Installment Payments and Lender Fees; and (ii) the payment of Debt Service and Lender Fees. Lock Box Deposits shall mean all funds on deposit in the Lock Box Account (including accrued Account Interest). Losses shall mean any liability, loss, damage, cost, or expense (including, without limitation, reasonable attorneys' fees). Master Loan Program Agreement shall mean that certain Master Loan Program Agreement by and between CRC and Assignee dated January 29, 2010. Mortgage shall mean each Real Estate Mortgage, Security Agreement, Assignment, and Fixture Filing executed by Assignor in favor of Assignee. Note shall mean that certain Promissory Note of even date herewith executed by Assignor in favor of Assignee and evidencing the Loan. Proceeds shall mean all additions, substitutions, replacements, extensions, renewals,and proceeds to or of any of the Borrower Loan Account, the Borrower Loan Deposits the Lock Box Account,and/or the Lock Box Deposits Each time an Installment Contract Is executed, amend.to add in that Installment Contract, the Contract Payrnent$:fortheIfSteiiment,COnti i andtheEquipmenttobeacgwred linstaliedtinder that'Installment Contracts Projection Notice shall have the meaning set forth in the Installment Contracts. Tri-Party Agreement shall mean that certain Tri-Party Agreement of even date herewith executed by and among Assignor, Assignee, and CRC. UCC shall mean the Indiana Uniform Commercial Code, as incorporated in the Indiana Code. 2. Assignment. For good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, Assignor hereby: (a) assigns the Collateral to Assignee; and (b) grants to Assignee a security interest in the Collateral. Each time an Installment Contract is executed, the parties shall amend this Agreement so that the definitions of Collateral and Proceeds include: (a)the newly executed Installment Contract; (b) the Contract Payments payable under that Installment Contract; and (c) the Equipment to be acquired and installed pursuant to that Installment Contract. 3. Indebtedness. This Agreement is given to secure the following (collectively, the'Indebtedness'): (a) performance by Assignor of the terms and conditions of this Agreement, together with payment of all: (i) amounts payable to Assignee under this Agreement; and (ii) reasonable costs, expenses, and attorneys' fees incurred by Assignee in: (A) the enforcement of this Agreement; or (B) the collection of any amounts payable to Assignee • under this Agreement;whether the foregoing are direct,indirect,fixed,contingent,liquidated, unliquidated,joint, several, or joint and several; (b) All obligations, liabilities, and indebtedness of Assignor to Assignee now existing or hereafter arising under,or in connection with,the Loan Documents,together with all:(i)Debt Service and Lender Fees; (ii) other amounts payable to Assignee under any of the Loan Documents; and (iii) reasonable costs, expenses, and attorneys'fees incurred by Assignee in: (A)the enforcement the Loan Documents; or(B)the collection of any amounts payable to Assignee under the Loan Documents; whether such obligations, liabilities, and indebtedness are direct, indirect, fixed, contingent, liquidated, unliquidated,joint, several,or joint and several; (c) All obligations and liabilities of Assignor and/or CRC now existing or hereafter arising under, or in connection with, the Tri-Party Agreement, together with all: (i)amounts payable under the Tri-Party Agreement; and (ii) reasonable costs, expenses, and attorneys' fees incurred by Assignee in: (A)the enforcement of the Tri-Party Agreement;or(B)the collection of any amounts payable to Assignee under the Tri-Party Agreement; whether such obligations and liabilities are direct, indirect,fixed,contingent, liquidated, unliquidated,joint, several, or joint and several; and (d) Any and all modifications,amendments,supplements,restatements,replacements, renewals, or extensions of one or more of this Agreement, the Loan Documents, or the Tri-Party Agreement. Assignor hereby acknowledges and agrees that: (a)the Indebtedness includes, and this Agreement is given to secure, the Future Advances; and (b) this Agreement shall secure all Future Advances. 4. Security Agreement. This Agreement is intended to be a security agreement pursuant to the UCC with respect to the Collateral for the purpose of securing all Indebtedness. Assignor agrees to execute and deliver financing and continuation statements (or acknowledgments and/or receipts thereof) covering the Collateral from time to time and in such form as Assignee may require to perfect,and continue the perfection of, Assignee's security interest with respect to the Collateral. Assignor shall pay (and Lender Fees shall include)all costs and expenses of:(a)filing such statements, and any continuations or releases thereof;and (b) any record searches for financing statements that Assignee may require. If there is a default under this Agreement, then, with respect to all and every part of the Collateral, Assignee shall have the rights and remedies: (a) of a secured party under the UCC; (b) available at law or in equity; and (c) provided in this Agreement. 5. Lock Box Account. (a) Creation. Contemporaneously with the execution of this Agreement, and in connection with the execution of the Loan Documents,Assignee, using its standard account documents, shall establish the Lock Box Account. Assignee shall maintain the existence of the Lock Box Account until such time as the Loan has been paid in full. In connection with the foregoing,the parties shall execute such documents as are necessary to: (i)establish the Lock Box Account; (ii) maintain the existence of the Lock Box Account; and/or(iii) comply with legal requirements applicable to the Lock Box Account and/or the Lock Box Deposits (including, without limitation, any that may be required in connection with the withdrawal by Assignee of Lock Box Deposits from the Lock Box Account to pay Debt Service and Lender Fees). (b) Payments. Notwithstanding anything to the contrary set forth in: (i) the Installment Contracts, CRC shall pay all Installment Payments directly into the Lock Box Account; and (ii) the Loan Documents, CRC or Assignor shall pay any other amounts due to Assignee pursuant to the Loan Documents into the Lock Box Account. (c) Withdrawals. On a monthly basis, and at such time as amounts are owed to Assignee pursuant to the Loan Documents, Assignee shall withdraw from the Lock Box Account the amount to which it is entitled pursuant to the Loan Documents. If, at the time that the Loan is paid in full,there remain any excess Lock Box Deposits,then Assignee shall re-deposit the remaining Lock Box Deposits into the Loan Program Account(as defined in the Master Loan Program Agreement) in accordance with the Loan Agreement. 6. Borrower Loan Account Interest. On a monthly basis, Assignee shall: (a) withdraw from the Borrower Loan Account all Borrower Loan Account Interest; and (b) apply the amount of the withdrawn Borrower Loan Account Interest against the interest that has accrued on the Loan. Notwithstanding the provisions in the Installment Contracts with respect to the determination of the amount of the Installment Payments,the amount set forth in one or more of the Projection Notices(and,accordingly,the amount of the Installment Payment due and payable by CRC pursuant to the Installment Contracts with respect to which such Projection Notices pertain) shall be reduced by the amount of the Borrower Loan Account Interest withdrawn by Assignee in the month with respect to which such Projection Notices pertain; provided that,in no event shall the aggregate amount by which one or more of the Projection Notices is reduced in a given month exceed the total amount of the Borrower Loan Account Interest withdrawn by Assignee for that month. 7. Warranties. Assignor represents and warrants to Assignee that: (a)Assignor: (i) is the sole owner of the Collateral; and (ii) has not sold, transferred, assigned, or conveyed all or any part of the Collateral; (b) the Collateral is free and clear of all liens, pledges, security interests, and encumbrances of any nature; (c)Assignor has full right and power to enter into and take the actions contemplated by this Agreement,(d)all necessary action has been taken to effect: (i) the assignment of the Collateral to Assignee; and(il)the grant to Assignee of a security interest in the Collateral; (e) this Agreement is effective to assign the Collateral to Assignee, and grant to Assignee a security interest in the Collateral,without contravention of the terms and conditions of the Installment Contract, the Loan Documents,or the Tri-Party Agreement;and(f)there are no outstanding subscriptions, options, warrants, commitments, or agreements with respect to the Collateral, except for agreements to which Assignor and Assignee are parties. Each of Assignor and CRC represents and warrants that it will not grant a security interest in the Collateral to any party other than Assignee. 8. Performance. (a) Payment. Assignee shall be paid all of the Indebtedness when due: (i)without relief from valuation and appraisement laws; and (U)with reasonable attorneys'fees and costs of collection. Assignor waives demand, presentment for payment, notice of protest,and notice of nonpayment or dishonor of the Note and/or the other Indebtedness. (b) Performance. Assignor shall perform as and when due all of its obligations under the Loan Documents,the Tri-Party Agreement,and the Installment Contracts,and CRC shall perform as and when due all of its obligations under the Tri-Party Agreement and the Installment Contracts. (c) Ownership. Assignor shall: (i) remain the sole owner of the Collateral; accordingly, Assignor shall not sell, transfer, convey, or assign all or any part of the Collateral or any interest therein; (ii)keep the Collateral free and clear of all liens, pledges, security interests, and encumbrances of any nature;(iii)not issue,grant,or agree to any subscriptions,options, warrants, commitments, or agreements with respect to the Collateral; and (iv) take all necessary action to keep this Agreement, the Installment Contracts, the Loan Documents, the Tri-Party Agreement, and the security interest in the Collateral in full force and effect. 9. Preservation. If:(a)Assignor fails to:(i)make any payment under the Loan Documents,the Tri-Party Agreement, or the Installment Contracts when due; or (ii) timely observe or perform any obligation to be observed or performed by it pursuant to the Loan Documents, the Tri-Party Agreement, or the Installment Contracts; or (b) CRC fails to: (i) make any payment under the Tri-Party Agreement or the Installment Contracts when due; or (ii) timely observe or perform any obligation to be observed or performed by it pursuant to the Tri-Party Agreement or the Installment Contracts;then:(a)Assignee, at its option,but without: (i) any duty or obligation to do so; or(ii) any waiver or release of any default by Assignor or CRC; may make any such payment or observe or perform any such obligation as necessary or appropriate to protector defend the Collateral, the security intended to be given by this Agreement, the security interest of Assignee in the Collateral, and/or the priority of such security interest in the Collateral; and (b) all reasonable costs and expenses incurred by Assignee in connection with making any such payment or observing or performing any such obligation(including,without limitation,reasonable attorneys'fees)shall constitute Lender Fees and be a part of the Indebtedness secured by this Agreement. 10. Events of Default. It shall be an "Event of Default" under this Agreement if: (a) Assignor or CRC fails to pay any amount due hereunder on the date due; provided that, in the case of the first two such failures in any 12 month period,it shall not be an Event of Default unless the failure continues for a period of five days after the date on which the payment is due; (b) Assignor or CRC fails to observe or perform any other obligation to be observed or performed by it hereunder, and such failure continues for a period of 30 days after Assignee delivers written notice of such failure to Assignor or CRC, respectively; provided that, if such failure is of a nature that it reasonably cannot be cured within 30 days,then such failure shall not constitute an Event of Default so long as Assignor or CRC:(i)commences a cure of such failure within 15 days after receipt of the notice from Assignee;and(ii)diligently pursues such cure to completion within 60 days after receipt of such notice; (c) there is an"Event of Default"by Assignor under the Installment Contracts,the Loan Documents, and/or the Tri-Party Agreement; provided that: (i) if the term"Event of Default" is not used in any of the foregoing documents, then it shall be an Event of Default under this Agreement if there is a default under such document that continues beyond any applicable cure periods; and (ii)notwithstanding the foregoing, undeclared Events of Default under the Installment Contracts shall not be Events of Default hereunder; (d) there is any representation or warranty made by Assignor in this Agreement, the Installment Contracts, the Loan Documents, or the Tri-Party Agreement that is false in any material respect at the time made or deemed to be made; (e) there is a breach of Subsection 8(c) of this Agreement; (f) there is a change in the control of Assignor such that Assignor no longer is controlled by, or under common control with, (g) there is a change in any Law that: (i)causes the transactions contemplated by the Installment Contracts, the Loan Documents,and/or the Tri-Party Agreement to be unlawful; or(ii) subjects Assignee to material adverse financial consequences; (h) there is a liquidation, sale, conveyance, transfer, encumbrance, pledge, or assignment of substantial assets of Assignor out of the ordinary course of business; (i) Assignor: (i) institutes or consents to any proceedings: (A) in insolvency or bankruptcy; (B)for the adjustment, liquidation, extension or composition,or arrangement of debts; or(C) for any other relief; under any Law with respect to the relief or reorganization of debtors;(ii)is adjudicated a bankrupt,files an answer admitting bankruptcy or insolvency, or in any manner is adjudged insolvent;(iii)makes an assignment for the benefit of creditors; or (iv)admits in writing an inability to pay debts as they become due; (j) there is any proceeding: (i) in insolvency or bankruptcy; (ii) for the adjustment, liquidation, extension or composition, or arrangement of debts; or (iii) for any other relief; under any Law with'respect to the relief or reorganization of debtors that is instituted against Assignor, and such proceeding is not discharged or dismissed within 45 days; (k) any portion of the Collateral,or any substantial portion of the other property or assets of Assignor,is placed in the hands of any receiver, trustee, or other officer or representative of any court, or Assignor consents, agrees, or acquiesces to the appointment of any such receiver, trustee, or other officer or representative; (I) Assignor's interest in the Collateral, or any material portion thereof, becomes the subject matter of litigation that will result in substantial impairment or loss of the security intended to be provided by this Agreement, as reasonably determined by Assignee; (m) any lienholder or creditor shall initiate an action to enforce or foreclose a lien,pledge, security interest, or encumbrance on, in, or of all or any portion of the Collateral, whether such lien, pledge, security interest, or encumbrance is superior, equal, or junior to the security interest of Assignee in the Collateral; and/or (n) there is the making or filing of any levy or execution on,or any seizure, attachment, or garnishment of, any portion of the Collateral. 11. Remedies. If there is an Event of Default, then, at any time thereafter: (a) at the option of Assignee: (1) all principal of, and interest on, the Indebtedness; and (ii) any amount owed to Assignee hereunder or under the Loan Documents or the Tri-Party Agreement;immediately shall become due and payable,without any notice, presentment for payment, demand, notice of demand and dishonor, or protest and notice of protest and nonpayment, all of which expressly are waived by Assignor; (b) Assignee immediately shall have the right to: (i) enforce in whole or in part every security interest granted by this Agreement; (ii) institute any proceeding that Assignee may deem to be necessary or appropriate for the protection of its interests (including, without limitation, a proceeding for injunction or for specific performance with respect to the terms and conditions of this Agreement,the Installment Contracts,the Loan Documents,and/or the Tri-Party Agreement); (iii) cure the Event of Default for the account of Assignor; and (iv) exercise any other right or remedy granted: (A) under any of this Agreement, the Installment Contracts,the Loan Documents,andlor the Tri-Party Agreement;or(B)at law or in equity; and (c) all reasonable costs and expenses incurred by Assignee in exercising or enforcing any of its rights or remedies hereunder shall constitute Indebtedness secured by this Agreement. Each and every right and remedy conferred upon,or reserved to,Assignee in this Agreement,the Installment Contracts, the Loan Documents,and/or the Tri-Party Agreement: (a)is cumulative, and is not intended to be exclusive of any other right or remedy, although Assignee, at its option, may elect to exercise its rights and remedies under:(i)this Agreement exclusive of its rights and remedies under any of the Installment Contracts, the Loan Documents, and/or the Tri-Party Agreement; or (ii) any of the Installment Contracts, the Loan Documents, and/or the Tri-Party Agreement exclusive of its rights and remedies under this Agreement; and (b) shall be in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity. No delay or omission by Assignee in the exercise of any right or remedy shall constitute, or be construed to be, a waiver of, or an acquiescence in, any Event of Default, and every right and remedy given to Assignee may be exercised from time to time, as often, and in such order as may be deemed to be expedient by Assignee. No waiver by Assignee of any Event of Default shall constitute a waiver of,or consent to, any subsequent Event of Default. 12. Receiver. Immediately upon the commencement of any proceeding by Assignee to obtain judgment for any part of the Indebtedness, or to aid in the enforcement of this Agreement, the Installment Contracts, the Loan Documents, or the Tri-Party Agreement: (a) Assignor shall: (i) waive the issuance and service of process, and enter its voluntary appearance in such proceeding: (ii) agree and consent to the appointment of a receiver or receivers of the Collateral; and (iii) execute, at the request of Assignee,a written consent or agreed order to be filed for the purpose of obtaining the appointment of a receiver;and(b)Assignee shall be entitled to the appointment of a receiver of the Collateral, without: (i) any such waiver, entry, agreement, consent, or order, or any further notice; (ii) regard to the adequacy or inadequacy of any security for the Indebtedness; and/or(iii) the requirement of any bond. 13. Waivers. To the extent lawful: (a)at no time shall Assignor insist upon, plead,or in any other manner whatsoever claim or take any benefit or advantage of: (f) any valuation or appraisement law; or (ii) any exemption from execution or sale of the Collateral; and (b) Assignor expressly waives all right to have the Collateral marshaled upon any enforcement of this Agreement. Assignee shall be entitled to recover judgment for any part of the Indebtedness before,after, or during the pendency of any proceeding for the enforcement of this Agreement, and the right of Assignee to recover such judgment shall not be affected by: (a) the enforcement of the security interest in the Collateral or any entry or sale hereunder;or(b)the exercise of any other right or remedy for the enforcement of this Agreement. Upon any sale made under or by virtue of this Agreement, Assignee may bid for and acquire all or any part of the Collateral, and, in lieu of paying cash therefor,may make settlement of the purchase price by crediting the net sales price against the Indebtedness. 14. Claim Defense. Assignor promptly shall: (a) notify Assignee in writing of the commencement, or threat of commencement, of any proceeding affecting the interest of Assignor or Assignee in all or any part of the Collateral:and(b)take such action,employing attorneys satisfactory to Assignee,as may be necessary to preserve, protect, and defend the interests of Assignor and Assignee affected by such proceeding. Assignor shall take such action in connection therewith as Assignee reasonably may require. Any and all Losses that may be incurred by Assignee in connection with any proceeding to which Assignee is made a party on account of this Agreement shall constitute Lender Fees and be a part of the Indebtedness secured by this Agreement. If Assignee pays, discharges, or satisfies, in whole or in part, any prior lien or encumbrance upon all or any part of the Collateral, then Assignee shall be subrogated to the rights of the holder of such lien as fully as if such lien had been assigned to Assignee. 15. 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, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to Assignee at 107 North Pennsylvania Street, Suite 700, Indianapolis, Indiana 46204, Facsimile: 317-261-9696, Attn: Jason Boyewsky; to Assignor at ,Facsimile: ,Attn: ;and to CRC at City of Carmel,Indiana,One Civic Square,Carmel,Indiana 46032,Facsimile:317-844-3498,Attn:Les Olds, with a copy to: Karl P. Haas, Esq., Wallack Somers & Haas, PC, One Indiana Square, Suite 1500, Indianapolis,Indiana 46204,Facsimile:317-231-9900. Any party may change its address for notice from time to time by delivering notice to the other parties as provided above. 16. Authority. Each undersigned person executing this Agreement on behalf of Assignor,Assignee,and CRC represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary action of Assignor,Assignee,and CRC,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; and (c)the execution,delivery, and performance of this Agreement have been authorized by Assignor, Assignee, and CRC, respectively. 17. Severability. If any one or more of the terms or conditions of this Agreement is determined to be invalid, then: (a) such invalidity, at the option of Assignee, shall not affect any other term or condition of this Agreement; and (b)this Agreement shall be construed as if such invalid term or condition had never existed. The invalidity of any term or condition of this Agreement in any jurisdiction shall not affect the validity of such term or condition in any other jurisdiction. 18. Applicable Law. The validity,construction, interpretation, and enforcement of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana, without regard to principles of conflicts of law. All actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in Hamilton County, Indiana,or the federal courts with venue that includes Hamilton County, Indiana. The parties waive, to the extent permitted under applicable law: (a)the right to a trial by jury; and (b)any right to assert the doctrine of"forum non conveniens"or to object to venue; in either case to the extent any proceeding is brought in accordance with this Section. 19. Successors. The terms and conditions of this Agreement shall:(a)run with the Collateral;and(b)be binding upon, and inure to the benefit of: (i)Assignor and its administrators, successors and assigns, and all parties claiming under or through Assignor; and (ii) Assignee and its successors and assigns. The term: (a)"Assignor"shall include all administrators,successors,and assigns of ;and (b)"Assignee"shall include the successors and assigns of The National Bank of Indianapolis. All parties who purport to have acquired any interest in the Collateral shall be deemed to have notice of, and shall be bound by, the terms of the this Agreement, the Installment Contracts, the Loan Documents, and the Tri-Party Agreement. 20. Miscellaneous. Any and all terms and/or conditions of this Agreement from time to time may be waived by Assignee to such extent, and in such a manner, as Assignee desires, by an instrument in writing signed by Assignee; provided that no such waiver shall affect or impair the rights of Assignee hereunder, except to the extent specifically stated in such written instrument. The captions used in this Agreement are for convenience only and are not to be construed as defining or limiting the terms and conditions of this Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and may be modified, amended,or revised only by a written agreement signed by each of the parties. This Agreement may be executed in counterparts,each of which shall be an original,but all of which, when taken together, shall constitute the same agreement. IN WITNESS WHEREOF,the parties have executed this Agreement as of the date set forth above. By: Printed: Title: THE NATIONAL BANK OF INDIANAPOLIS By: Printed: Title: THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: Ronald E. Carter, President Page 1 of 1 Lee, Mike E From: McClellan, Jacob A. [JMcClellan @hallrender.com] Sent: Friday, February 22, 2013 3:34 PM To: Lee, Mike E Subject: Hall Render Invoice for CRC Attachments: NBI Loan Program Agreement.pdf Mike, I have attached the Master Loan Program Agreement. Our fees are expenses under Section 5 of the Master Loan Program Agreement, and that is how they have been paid before. The other documents also include payment of attorneys' fees and expenses by the Developer, with the CRC being obligated to reimburse the developer for the payment of the fees. Let me know if you need anything further. Thanks, Jacob Jacob A.McClellan Attorney ■ ■ HALL • RENDER KILLIAN HEATH & LYMAN direct (317)977-1482 fax (317)633-4878 email jmcclellan @hallrender.com web www.hallrender.com One American Square, Suite 2000 Box 82064, Indianapolis, IN 46282 • THIS COMMUNICATION AND ATTACHMENTS CANNOT BE USED FOR THE PURPOSE OF AVOIDING TAX PENALTIES. This message and any attachments are confidential and are subject to the attorney-client privilege and the privilege relating to attorney-client work product.It is intended only for the named recipient(s)and may be exempt from disclosure under other applicable law,as well.If you are not the intended recipient(s),you are notified that any disclosure,copying,distribution or any action taken or omitted to be taken in reliance on the contents of this information is prohibited and may be unlawful.If you receive this message in error,or are not the named recipient(s),please notify the sender,delete this e-mail from your computer,and destroy any copies in any form immediately.Receipt by anyone other than the named recipient(s)is not a waiver of any attorney-client,work product,or other applicable privilege. Hall Render hereby claims all applicable privileges related to this information. 2/25/2013