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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. By: //1.(t{., Opp rob tart _ Imt,als 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. 13 y: B y; Tees r nri 1 riCyOrry or CA2A -EL ? evfw 'P Herr rc -11-4'5S c r 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