HomeMy WebLinkAboutLetter of Credit - 251 LLC - 10-23-0610/23/2006 15:18 15135345950
LETTER OF CREDIT NO. 015405614
ISSUING BANK:
FIFTH THIRD BANK, (CENTRAL INDIANA)
BENEFICIARY:
251, LLC
3057 SUGAR MAPLE COURT
CARMEL, IN 46033
APPLICANT:
THE CITY OF CARMEL REDEVELOPMENT
COMMISSION, C/O CITY OF CARMEL,
INDIANA, ONE CIVIC SQUARE
CARMEL, IN 45032
ATTN: LES OLDS
LETTER OF CREDIT, NO: CIS4
ISSUE DATE: OCl.
EXPIRATION DATE: OCTQPE
EXPIRATION PLACE: AT Off`
AMOUNT: 826,875.21 USD EIG,
HUNDRED SEVENTY FIVE 21/14
FIFTH THIRD
q•6, 2005
13, .2097-(
LINTERS;:;
RNDRED
PAGE 1
SIX THOUSAND EIGHT
PAGE 03/06
WE HEREBY ISSUE IN YOUR FAVOR THIS F-itFFFYOCABLE STANDBY LE'I1'ER OF
CREDIT WHICH IS AVAILABLE BY PRESENTATYON OP YOUR DRAFT(S) AT
SIGHT DRAWN ON THE FIFTH THIRD SANK (CENTRAL INDIANA) ACCOMPANIED
BY THE BENEFICIARY'S SIGNED CERTIFICATION IN THE FORM ATTACHED
HERETO AS EXHIBIT A AND THIS ORIGINAL LETTER OF CREDIT,
PARTIAL DRAWINGS ARE ALLOWED..
MULTIPLE DRAWINGS ARE ALLOWED.
THE BANK SHALL NOT EE CALLED UPON TO DETERMINE QUESTIONS OF FACT
OR LAW AT ISSUE BETWEEN THE BANK'S CUSTOMER AND THE BENEFICIARY
OF THIS LETTER OF CREDIT.
DRAFT MUST BEAR THE CLAUSE: "DRAWN UNDER LETTER OF CREDIT NUMBER
CIS405614 OF FIFTH THIRD BANK (CENTRAL INDIANA) DATED OCTOBER'16,
2006
THIS ORIGINAL LETTER OF CREDIT, ALONG WITH ANY SUBSEQUENT
10/23/2006
5:18 15135345950
LETTER OF CREDIT N0, CTS405614
FIFTH THIRD
PAGE
PAGE 04/06
AMENDMENTS MUST BE SUBMITi5D TO THE BANK FOR OUR ENDORSEMENT OF
ANY PAYMENTS EFFECTED BY US AND /OR FOR CANCELLATION.
WE ENGAGE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH
THE TERMS OF THIS CREDIT WILL BE HONORED IF NEGOTIATED OR
DURING
AT: FIFTH THIRDBANK, NTERNATI NALOTRADEOSERVICES, MD EXPIRATION DATE
FOUNTAIN SQUARE PLAZE, CINCINNATI, OH 45202. 1903C, 38
THIS CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY
PRACTICES /I5P98, INTEERNATIONAI, CHAMBER OF COMMERCE PUBLICATION
590.
AUTHORIZED SIGNATURE
10/23/2006 15:18 15135345950
Fifth Third Bank
FIFTH THIRD PAGE 05/06
EXHIBIT A
THIS CERTIFICATION IS EXECUTED TI-US DAY OF , BY 251, LLC
(THE BENEFICIARY).
1. DEFAULT, BENEFICIARY HEREBY CERTIFIES THAT:
(A) THERE HAS BEEN A DEFAULT 13Y THE CITY OF CARMEL
REDEVELOPMENT COMMISSTON ( "CRC ") PURSUANT TO THAT
CERTAIN LAND SALE CONTRACT BY AND BETWEEN
BENEFICIARY AND CRC DATED JULY 22, 2006 AS AMENDED
BY THAT CERTAIN FIRST AMENDMENT TO LAND SALE
CONTRACT DATED AUGUST 3, 2006 (COLLECTIVELY, THE
"LAND SALE CONTRACT "):
(B) BENEFICIARY HAS PROVIDED CRC ALL NOTICES REQUIRED
WITH RESPECT TO SUCH DEFAULT PURSUANT TO THE LAND
SALE CONTRACT.
(C) ALL GRACE AND /OR CURE PERIODS APPLICABLE TO SUCH
DEFAULT PURSUANT TO THE LAND SALE CONTRACT HAVE
EXPIRED WITHOUT CRC EITHER:
CURING SUCH DEFAULT; OR
ii. PAYING TO THE BENEFICIARY THE FULL AMOUNT
OF THE "CONTRACT BALANCE ", AS DEFINED IN
THE LAND SALE CONTRACT; AND
(D) AS A RESULT OF SUCH CONTINUING DEFAULT $ IS
DUE AND OWING TO BENEFICIARY PURSUANT TO THE LAND
SALE CONTRACT.
2. REQUEST. BENEFICIARY HEREBY REQUESTS A DRAW ON THE
LETTER OF CREDIT IN THE AMOUNT OF $ , WHICH IS THE
AMOUNT DUE AND OWING TO THE BENEFICIARY PURSUANT TO THE
LAND SALE CONTRACT.
3. NO ASSIGNMENT. BENEFICIARY HEREBY CEA1I!•IES THAT IT HAS
NOT ASSIGNED THIS LETTER OF CREDIT, OR ANY OF ITS RIGHTS
THEREUNDER, TO ANY OTHER PERSON OR ENTITY.
10/23/2006 15.18 15135345950
fifth Third Bank
FIFTH THIRD PAGE 06/06
IN WETNESS WHEREOF, BENEFICIARY HAS EXECUTED THIS CERTIFICATION
AS OF THE DATE SET FORTH ABOVE,
251, LLC
BY
DOROTHY R. HARRILL, MANAGER
BY:
GEORGE DELANO HARR.ILL, MEMBER
Date: October 13. 2006
Please issue an irrevocable Letter of Credit substantially as set forth below and forward same to your correspondent by.
(check "X ")
® Courier E Full Telex or SWIFT -, for 0 Return original credit to us
delivery to the beneficiary
In issuing the credit you are expressly authorized to make such changes from the terms of this application as you, in your
sole discretion, may deem advisable provided no such changes shall vary the principal terms hereof.
ADVISING BANK FOR ACCOUNT OF (APPLICANT)
[Double click here and type complete name & street
address of Advising Sank)
The City of Carmel Redevelopment Commission
c/o City of Carmel, Indiana
One Civic Square
Carmel, Indiana 46032
Attn: Les Olds
IN FAVOR OF (BENEFICIARY)
251.LLC
3057 Sugar Maple Court
Carmel, Indiana 46033
AMOUNT
Eight Hundred Twenty -Six Thousand Eight Hundred
Seventy-Five and 21/100 Dollars ($826,875.21)
Drafts must be presented to Fifth Third Bank on or before
October 13, 2007
(896)_
Available by drafts at sight drawn, at your option, on you or your correspondent.
When accompanied by the following documents, as checked (check documents required):
® Beneficiary's signed statement in the form attached hereto as Exhibit A
D Commercial Invoice(s) [Double click here to enter text]
El Other Instructions [Double click here to enter text)
Unless otherwise instructed. documents shall be forwarded to you in one airmail.
PLEASE DATE AND OFFICIALLY SIGN THIS AGREEMENT ON THE REVERSE SIDE OF THIS APPLICATION
AGREEMENT SETTING FORTH
TERMS AND CONDITIONS FOR IRREVOCABLE
STANDBY LETTER OF CREDIT AND SECURITY AGREEMENT
In consideration of your issuing the Standby Letter of Credit substantially according to the Application on the Reverse side
hereof, or as attached hereto and initialed by us, we, the undersigned, hereby jointly and severally contract as follows:
1. We agree, in the case of each sight draft or drawing under or purporting to be under this Credit in United States
Currency, to reimburse you at your head office in Cincinnati on demand, in United States currency, the amount paid on
such drafts or drawings or, if so required by you, to pay you in advance at your head office the amount required to pay
such draft or drawing.
2. We agree, in the case of each sight draft drawing under or purporting to be under the Credit in currency other
than United States currency, to reimburse you at your head office in Cincinnati, on demand, the equivalent of the amount
paid in United States currency at the rate of exchange then current in Cincinnati for cable transfer to the place of payment
in the currency in which such draft is drawn, or drawing made, with interest from the date of payment of the instrument, or
if so required by you to pay you, at your office in advance, in United States currency, the equivalent of the amount
required to pay the same. If, for any cause whatsoever, there exists at the time in question no rate of exchange generally
current in Cincinnati for effective cable transfers of the sort above provided for, we agree to pay you on demand an amount
in United States currency equivalent to the actual cost of settlement of your obligation to the payor of the drawing or draft
or any holder thereof, as the case may be, and however and whenever such settlement may be made by you, including
interest on the amount of U. S. currency payable by us from the date of payment of such draft or drawing to the date of our
payment to you.
3. We agree to pay you, on demand, an initial commission of $3,000.00 and an annual fee of 1% of the amount of
the Credit. Further, we agree to reimburse you on demand for all charges and expenses incurred by you in connection
with the Credit (whether incurred before or after the stated expiration date of the Credit) together with interest on such
commissions, charges and expenses at the rate customarily charged by you at the time in like circumstances. We
understand and agree that the commission charged by you shall be considered earned by you and that no portion shall be
refunded to us whether the Credit is used or unused and whether or not the Credit is returned to you for cancellation prior
to its expiration date.
4. Each amount which may become due and payable to you under this Agreement may, in your discretion, be
charged by you to any available funds then held by you for our account. If you shall at anytime require payment in
advance of the amount necessary to pay drafts drawn or drawings made under this Credit, the funds shall be deposited in
a special collateral account which shall be charged to reimburse you for such amounts paid by you and drawn under or
purporting to be drawn under this Credit.
5. If any change in law or any governmental rule, regulation, policy, guideline or directive (whether or not having
the force of law) or the interpretation thereof, in your opinion, effectively increases your cost or reduces your return in
connection with the acceptance of this application or the issuance of the Credit, whether as a result of a change in the
amount of capital required or expected to be maintained by you or any corporation controlling you, the imposition of any
reserve, special deposit or similar requirement in connection herewith, or any other change whatsoever, upon notice from
you we shall promptly pay to you from time to time as specified by you such additional amounts as are sufficient to
compensate you for such increased costs or reduced return.
6. In the event of any extension of the maturity or time for presentation of drafts or documents,- ar any other
modification of the terms of this credit, at the request of any of us, with or without notification to the others, or in the event
of any increase in the amount of the credit at our request, this Agreement shall be binding upon on us with regard to the
credit so increased or otherwise modified, to drafts, documents, and property covered thereby, and to any action taken by
you or any of your correspondents in accordance with such extension, increase, or other modification.
7. We agree that you, your branches, affiliates and /or correspondents, shall not be liable or responsible in any
respect for any error, omission, interruption or delay in dispatch, transmission, or delivery of any one or more messages or
advises in connection with this credit whether transmitted by cable, radio, telegraph, mail or otherwise and despite any
cipher or code which may be employed, or for any action, inaction or omission which may be taken or suffered by you or
them in good faith or through inadvertence in identifying or failing to identify any beneficiary(ies) or otherwise in connection
with this credit.
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AGREEMENT SETTING FORTH
TERMS AND CONDE] IONS FOR IRREVOCABLE
STANDBY LETTER OF CREDIT AND SECURITY AGREEMENT
8. We hereby certify and agree that no transactions will be undertaken under this credit in violation of the laws of
the United States or regulations of any governmental agency.
9. We agree at any time and from time to time on demand to deliver, convey, transfer, or assign to you, as security
for any and all of our obligations and liabilities, contingent or absolute, due or to become due, which are now or may at any
time hereafter be owing by the undersigned to you, security of a character and value satisfactory to you, or to make such
payment as you may require. We agree that all property belonging to any of the undersigned, in which any of us may have
an interest, of every name and nature whatsoever, now or at any time hereafter delivered, conveyed, transferred,
assigned, or paid to you, or coming into your possession in any manner whatsoever, whether expressly as security for any
obligations or liabilities to you or for safekeeping or otherwise, including any items received for collection or transmission
and the proceeds thereof, whether or not such property is in whole or in part released to us on security agreement, is
hereby made security for each and all such obligations and liabilities. We further agree to execute and deliver such
instruments, security agreements, financing statements and other documents as you may request to further evidence the
security interest granted hereby and to perform such other acts as may be necessary to perfect such interest. In addition, a
copy of this Agreement may be filed as a financing statement. The security interests grant to secure our obligations under
this Agreement also secure all obligations whatsoever of any of us to you, both under this Agreement and otherwise, and
remain in effect until all such obligations are satisfied in full.
10. In the event of (a) any default hereunder, (b) the death, failure in business, dissolution or termination of
existence of any of us, (c) the filing of any petition in bankruptcy by or against any of us, or (d) the commencement of any
proceedings in bankruptcy or for the relief or readjustment of any indebtedness of any of us, either through reorganization,
composition, extension or otherwise, or (e) an assignment by any of us for the benefit of creditor or the utilization by any of
us of any insolvency law, or (f) the appointment of a receiver of any property of any of us at any time, or (g) an attachment
or distraint of any property of any of us which may be in, or come into, your possession and control or that of any third
party acting for you as aforesaid, or (h) the subjection of such property at any time to any mandatory order of court or other
legal process; then, or at any time after the happening of any such event, the amount of this Credit, both drawn and
undrawn, as well as any and all other amounts payable hereunder to you, shall, to the extent not theretofore paid to you
hereunder, become immediately due and payable without demand or notice, and full power and authority are hereby given
to you to sell, assign and deliver the whole of the property upon which you have heretofore been given a lien, or any part
thereof, or any substitution therefor, or any additions thereto, at any broker's board or at public or private sale at your
option, either for cash or on credit or for future delivery, without either demand, advertisement or notice of any kind, all of
which are hereby waived. At any sale thereunder, you may purchase the whole or any part of the property sold, free from
any rights of redemption on our part, all of which rights are hereby waived and released. In the event of any sale or other
disposition of any of the aforesaid property, after deducting all costs or expenses of every kind for care, safekeeping,
collection, sale, delivery or otherwise, you may apply the residue of the proceeds of the sale or other disposition thereof, to
the payment or reduction either in whole or in part, of all or any of the obligations hereunder, whether then due or not due,
and any other obligations secured by such collateral and may return any surplus to the undersigned, all without prejudice
to your rights as against the undersigned with respect to any and all obligations which may be or remain unpaid hereunder
at any time.
11. The rights and Hens which you posses hereunder shall continue unimpaired, and the undersigned shall remain
obligated in accordance with the terms and provisions hereof, notwithstanding the release or substitution of any property
which may be held as security hereunder at any time, or of any right or interest therein, or the release of any one or more
of us. No delay, extension of time, renewal, compromise, or other indulgence which may occur, shall impair your rights or
powers hereunder. You shall not be deemed to have waived any of your rights hereunder unless you or your authorized
agent shall have signed such waiver in writing. No such waiver, unless expressly as stated therein, shall be effective as to
any transaction which occurs subsequent to the date of such waiver, nor as to any continuance of a breach after such
waiver.
12. We agree to hold you and your correspondents indemnified and harmless against any and all loss, cost,
expense, liability or damage, including attorneys fees related thereto, howsoever arising from or in connection with the
Credit. Without limiting the generality of the foregoing, we agree to hold you indemnified and harmless for any and all
amounts adjudicated or otherwise ordered by any court or other tribunal to be payable by you in connection with the Credit
to the beneficiary or its or their respective successors, assigns, heirs, and legal representatives, at any time before or after
the expiration of the Credit, including without limitation the principal amount of arty and all drafts drawn under or purporting
By:
AGREEMENT SETTING FORTH
TERMS AND CONDITIONS FOR IRREPOCABLE
STANDBY LETTER OF CREDIT AND SECURITY AGREEMENT
to have bee drawn under the Credit, together with any and all interest thereon and any and all costs and expenses
(including attorney's fees) incurred by you in connection with any such adjudication, or order, except only if and to the
extent that any such amount shall be adjudicated or ordered to be payable as a result of your willful misconduct or gross
negligence.
13. If the undersigned is a corporation, it hereby represents and warrants to you that: (a) it is duly organized and
validly existing and is duly authorized to enter into this Agreement and to perform its obligations hereunder; (b) the
execution and delivery of this Agreement does not, and the performance of the obligations rider this Agreement will not,
violate any provision of law, or the certificate or incorporation or bylaws of the undersigned, or of any agreement,
indenture, note or other instrument which is binding on the undersigned.
14. The word "property' as used herein includes goods and merchandise (as well as any and all documents relative
thereto), securities, funds, monies (whether United States currency or otherwise), instruments, chattel paper, general
intangibles, choses in action, and any and all other forms of property, whether real, personal or mixed and any right or
interest of any one or more of us therein. If this Agreement is signed by one party, the terms we', ours ", "us" shall be read
throughout as "I ", "my', "me" as the case may be. If this Agreement is signed by two or more parties, it shall constitute the
joint and several agreement of such parties; and in any such case, this Agreement shall not be revoked or impaired as to
any one or more of such parties by the death of any of the others or by the revocation or release of any obligations
hereunder of any one or more of such parties or the impairment or release of any collateral security. Except as otherwise
expressly provided in this Application and Agreement or as you and we may otherwise expressly agree with regard to, and
prior to your issuance of, this Credit, the international standby practices rules /ISP98 presently in effect shall be binding on
this credit and shall serve, in the absence of proof expressly to the contrary, as evidence of general banking usage.
15. If any part of this Agreement is held invalid in any respect, the remainder of this Agreement shall be severable
therefrom and shall remain effective,
16. This Agreement shall become effective upon your receipt thereof and shall be governed in all respects, except to
the extent inconsistent with the ISP98, by laws of the State of Indiana, United States of America. This Agreement shall be
binding upon the undersigned, and our successors, assigns, heirs, and legal representatives, and shall be enforceable by
your successors and assigns. No assignment or other transfer of all or any of the rights of the undersigned hereunder,
whether with regard to any property or otherwise, may be made without your prior consent in writing. We irrevocably
submit to the nonexclusive jurisdiction of any federal or state court located in Marion County, Indiana, in any action or
proceeding related to the Creditor of this Agreement.
17. If this Agreement should be terminated or revoked as to us by operation of law or otherwise, we will indemnify
and save you harmless from any loss which may be incurred by you in acting hereunder prior to the receipt by you or your
successors, transferees, or assigns of notice in writing of such termination or revocation and to the extent to which you
may subsequently be required to act notwithstanding such termination or revocation.
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Address: <2,4* Cvic S9uA¢cz Ca¢tiet, )1,4 9ta Z
Telephone: 317- Sit - L49 a
Account No.
AGREEMENT SETTING FORTH
TERMS AND CONDITIONS FOR IRREVOCABLE
STANDBY LETTER OF CREDIT AND SECURITY AGREEMENT
This Certification is executed this
CERTIFICATION
day of , by 251, LLC (the "Beneficiary').
1. Default. Beneficiary hereby certifies that: (a) there has been a default by The City of Carmel Redevelopment
Commission ( "CRC ") pursuant to that certain Land Sale Contract by and between Beneficiary and CRC dated July
2005, as amended by that certain First Amendment to Land Sale Contract dated August , 2006 (collectively, the "Land
Sale Contract "); (b) Beneficiary has provided to CRC all notices required with respect to such default pursuant to the Land
Sale Contract; (c) all grace and/or cure periods applicable to such default pursuant to the Land Sale Contract have expired
without CRC either: (1) curing such default; or (ii) paying to Beneficiary the full amount of the "Contract Balance ", as defined
in the Land Sale Contract; and (d) as a result of such continuing default $ is due and owing to Beneficiary
pursuant to the Land Sale Contract.
2. Request. Beneficiary hereby requests a draw on the Letter of Credit in the amount of $
the amount due and owing to Beneficiary pursuant to the Land Sale Contract.
, which is
3. No Assignment. Beneficiary hereby certifies that is has not assigned the Letter of Credit, or any of its rights
thereunder, to any other person or entity.
IN WITNESS WHEREOF, Beneficiary has executed this Certification as of the date set forth above.
251, LLC
By:
Dorothy R. Harrill, Member
By:
George Delano Harrill, Member
5
By:
A➢Pllcanrs lnit als
REIMBURSEMENT AGREEMENT
5826,875.21
Date: October 13, 2006
Due: October 13, 2007
This Reimbursement Agreement (the "Agreement "), executed by The City of Carmel
Redevelopment Commission, having its principal office at City of Carmel, Indiana, One Civic Square, Carmel,
Indiana 46032 (the "Maker "), in favor of Fifth Third Bank, Indiana (Central), having its principal office at
251.North Illinois Street, Suite 1000, Indianapolis, Indiana 46204, or its successors and assigns (the "Bank"),
WITNESSES:
1. Letter of Credit. This Agreement evidences indebtedness of Maker with respect to that certain Letter
of Credit issued by Bank in favor of 251,LLC (the "Seller "), as the same may be renewed, extended, modified,
amended, supplemented, or replaced from time to time (the "Letter of Credit"). Seller has delivered the Letter
of Credit to Seller, as' contemplated by that certain Land Sale Contract by and between Maker and Seller
• dated July 22, 2005, as amended pursuant to that certain First Amendment to Land Sale Contract dated
August 3, 2006 (collectively, the "Contract "), Reference should be made to the Letter of Credit and the
Contract for the terms and conditions under which Seller may make a draw on the Letter of Credit.
Payment.
(a) Obligation. Maker promises to pay the Principal Amount to Bank.
(b) Interest. Interest shall: (i) accrue on the Principal Amount at the Interest Rate; and
(ii) be calculated on the basis of a 360 day year over the actual number of days elapsed.
(c) Payment. Maker shall pay the Outstanding Balance to Bank: (i) within five business
days after receipt of written demand and otherwise in accordance with the terms and
conditions of Section 3; (11) in lawful money of the United States of America; and (ill) at Bank's
principal office, or at such other place as Bank may designate by written notice to Maker.
(d) Application. All amounts paid under this Agreement shall be applied: (i) first, to Fees
due and owing to Bank; (ii) second, to accrued but unpaid interest; and (iii) third, to reduce
the Principal Amount. All amounts payable under this Agreement shall be paid without relief
from valuation and appraisement laws, and with attorneys' fees and costs of collection.
(e) Definitions. For purposes of this Agreement:
(i) "Fees" shall mean all fees, charges, costs, and expenses required
to be paid by Maker to Bank pursuant this Agreement or the Letter of Credit;
(II) "Interest Rate" shall mean a rate of interest equal to: (A) the rate of
interest quoted by Bank from time to time as its "prime rate" or "base rate ";
plus (8) 4 %;
(iii) "Principal Amount" shall mean: (A) $826,875.21, if Seller draws the
full amount of the Letter of Credit, or (B) otherwise, the lesser amounts
drawn by Seller from time to time on Letter of Credit; and
(iv) "Outstanding Balance" shall mean: (A) the Principal Amount; plus
(B) Fees due and owing to Bank; and plus (C) all accrued but unpaid
interest.
3. Defaults. For purposes of this Agreement, a "Default" shall mean an "Event of Default" by Maker
under the Contract that results in a draw by Seller on the Letter of Credit.
4. Draw Account. Attached hereto as Exhibit A is a schedule identifying a separate collateral account
that has been established at Bank in Bank's name (the "Draw Account "). Attached hereto as Exhibit B is a
budget identifying CRC's projected sources of revenue through December 31, 2006 (the "Budgeted Sources ").
If there is a Default, then Bank may require that, as CRC receives revenue from any source, including, without
limitation, the Budgeted Sources (the "CRC Revenue "), the full amount of the CRC Revenue shall be
deposited directly into the Draw Account, until such time as the balance of the Draw Account is equal to: (i) the
balance of the Letter of Credit available to be drawn by Seller; plus (U) any remaining Outstanding Balance
(the "Required Balance'). Bank shall have the right to draw funds from the Draw Account to cover: (a) any
remaining Outstanding Balance; (b) subsequent draws made by Seller on the Letter of Credit; (c) additional
accrued but unpaid interest; and (d) additional Fees due and owing to Bank. If, at any time, the balance in
the Draw Account is less than Required Balance, then Bank may require that, as CRC Revenue is received,
the full amount thereof shall be deposited directly into the Draw Account, until such time as the balance of the
Draw Account again is equal to the Required Balance. The rights and remedies of Bank under this Section
are in addition to the other rights and remedies of Bank under this Agreement, and Bank may continue
exercising its rights and remedies under this Section even if all Defaults are cured in full by CRC. After:
(a) Bank has paid all draws made by Seller on the Letter of Credit; (b) the period under the Letter of Credit
for Seller to make draws has expired; and (c) Bank has been paid the full amount of any Outstanding Balance;
Bank shall release to CRC any remaining balance in the Draw Account. CRC shall take all actions and
execute all instruments necessary to establish the Draw Account as provided in this Section and as security
for the satisfaction by CRC of its obligations hereunder.
5. Remedies.
(a) If Maker fails to perform its obligations hereunder, then Bank may exercise any
remedies available to it at law or in equity, including, without limitation, the remedies of
specific performance and /or injunction.
(b) Maker- authorizes Bank to apply, without notice, any balances, credits, deposits, or
moneys of Maker in the possession of Bank to payment of any amounts due under this
Agreement, including, without limitation, the right of Bank to draw funds from the Draw
Account as provided in Section 4.
(c) The rights and remedies of Bank, as provided in this Agreement, shall be cumulative,
and may be pursued singly, successively, or concurrently. No exercise of any right or remedy
by Bank shall constitute an election of rights or remedies that precludes the subsequent
exercise of any other rights or remedies. Bank shall not be deemed to have waived any of
its rights or remedies under this Agreement, unless the waiver is in writing and executed by
Bank. No: (i) delay or omission by Bank in the exercise of any right or remedy; or (ii) failure
by Bank to exercise any right or remedy; shall be deemed to operate as a waiver of such right
or remedy.
(d) Maker shall: (i) pay; and (ii) indemnify and hold harmless Bank from and against any
liability for the payment of; any expenses arising out of, or incurred in connection with, the
enforcement of the obligations of CRC hereunder and the exercise of the rights of Bank
hereunder, including, without limitation, reasonable attorneys' fees and costs of enforcement.
Z:\Documents \Shoup, Jenny City of Carmel\Parcel
14\Harrill\Reimbursement Agreement \Reimbursement
Agreement.v2.wpd
01Aug06
6. Miscellaneous.
(a) Any term or condition of this Agreement that purports to obligate Maker to pay any
amount of interest, or any expense, that is in excess of the maximum permitted by applicable
law shall be effective only to the extent that it requires the payment of interest, or any
expenses, permitted by applicable law. If Maker at any time pays any amount of interest, or
any expense, that is in excess of the maximum permitted by applicable law, then: (1) such
overpayments shall be: (A) deemed to be payments of the Principal Amount; and (B) applied
to the reduction of the Principal Amount; and (ii) such application shall be the sole remedy
of Maker at law or in equity for such overpayments.
(b) Maker: (i) waives presentment for payment, demand, notice of demand and
dishonor, protest, and notice of protest and nonpayment; (ii) expressly agrees that: (A) this
Agreement, any amount coming due under this Agreement, and /or the performance of any
obligation under this Agreement may be extended from time to time; and (B) this Agreement
and /or the Letter of Credit may be renewed or extended; in any case without in any way
affecting or releasing the liability of Maker hereunder; and (iii) expressly agrees that any
modification, amendment, supplement, or replacement of this Agreement and /or the Letter
of Credit shall not affect or release in any way the liability of Maker hereunder. This
Agreement shall be binding upon Maker and its heirs, personal representatives, successors,
and assigns.
(c) 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. Maker agrees that all actions or proceedings arising
in connection with this Agreement shall be tried and litigated only: (i) in the state courts
located in Marion County, Indiana, or the federal courts with venue that includes Marion
County, Indiana; or (ii) at the sole option of Bank, in any other court: (i) in which Bank shall
initiate legal or equitable proceedings; and (ii) that has subject matter jurisdiction over the
matter in controversy. Maker waives, to the extent permitted under applicable law: (i) the
right to a trial by jury; and (ii) any right Maker may have 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 paragraph.
IN WITNESS WHEREOF, Maker has executed and delivered this Agreement to Bank as of
the date set forth above.
THE CITY OF CARMEL
REDEV�ELOPIMENT CQMsjj41SS)6N
By / :
Ronald E. Carter, President
Z: \Documents \Shoup, Jenny \City of Carmel \Parcel
14AHamllAReimburscment AgreementARcimbursement
Agreement v2.wpd
01Aug06