HomeMy WebLinkAboutTri-Party Agreement - $8,500,000 TRI-PARTY AGREEMENT
This Tri-Party Agreement(the "Agreement") is executed this4day of July, 2010, by and
among Lake City Bank, a banking institution having its principal office at Two Meridian Plaza, Suite 300,
10401 North Meridian Street,Indianapolis,Indiana 46290-1113(the"Lender"),Carmel City CenterCommunity
Development Corporation,an Indiana community development corporation having its principal office at One
Indiana Square, Suite 1500, Indianapolis, Indiana 46204 (the "Borrower"), and The City of Carmel
Redevelopment Commission, having its principal office at City of Carmel, Indiana, 30 West Main Street,
Suite 220, Carmel, Indiana 46032("CRC").
1. Definitions.
Accrued Interest shall mean the Base Rate Accrued Interest or the Adjusted Rate Accrued Interest, as
applicable.
Adjusted Outstanding Principal Balance shall mean the outstanding amount,on the Loan Purchase Date,
of: (a)the Borrower Loan Account Disbursement; plus(b)all Lender Fees (including all outstanding Lender
Fees that are owed by Borrower as a result of a Loan Default); provided that the Adjusted Outstanding
Principal Balance shall be reduced by the amount of the Grant Account Deposits. in no event shall the
Adjusted Outstanding Principal Balance exceed$8,500,000.00,plus Lender Fees(including all Lender Fees
that are owed by Borrower as a result of a Loan Default).
Adjusted Purchase Price shall mean the sum of: (a) the Adjusted Rate Accrued Interest; and (b) the
Adjusted Outstanding Principal Balance.
Adjusted Rate Accrued Interest shall mean all interest on the Adjusted Outstanding Principal Balance that
has accrued, and remains unpaid, as of the Loan Purchase Date, regardless of whether such interest has
accrued at the Loan Rate or the Default Rate.
Aggregate Costs shall mean the sum of: (a)the Concert Hall Completion Costs; (b)the Lender Fees; and
(c) Debt Service.
Base Outstanding Principal Balance shall mean the outstanding amount,on the Loan Purchase Date, of:
(a)the Borrower Loan Account Disbursement; plus (b)all Lender Fees,to the extent that such Lender Fees
have been incurred in the absence of a Loan Default;provided that such amount specifically shall exclude all
Lender Fees that are owed by Borrower as a result of a Loan Default. The Base Outstanding Principal
Balance shall be reduced by the amount of the Grant Account Deposits. In no event shall the Base
Outstanding Principal Balance exceed$8,500,000.00,plus Lender Fees,to the extent that such Lender Fees
have been incurred in the absence of a Loan Default.
Base Purchase Price shall mean the sum of: (a) the Base Rate Accrued Interest; and (b) the Base
Outstanding Principal Balance.
Base Rate Accrued Interest shall mean all interest on the Base Outstanding Principal Balance that has
accrued at the Loan Rate, and remains unpaid, as of the Loan Purchase Date.
Borrower Loan Account shall mean the"Borrower Loan Account"defined in,and established pursuant to,
the Loan Agreement.
Borrower Loan Account Disbursement shall mean the disbursement and deposit by Lender of proceeds
of the Loan into the Borrower Loan Account in accordance with the terms and conditions of the Loan
Agreement. The Borrower Loan Account Disbursement is the"Borrower Loan Account Disbursement"under
the Loan Agreement.
Borrower Loan Default shall mean a Loan Default caused by the failure by Borrower to observe or perform
any obligation under the Loan Documents.
City shall mean the City of Carmel, Indiana.
Collateral Assignment shall mean that certain Collateral Assignment and Security Agreement of even date
herewith executed by and among Borrower, Lender, and CRC.
Concert Hall shall mean a world-class concert hall located on that certain real estate depicted on'Exhibit A
to the Loan Agreement.
Concert Hall Completion Costs shall mean the actual,out-of-pocket costs incurred by Borrower to complete
the construction of the Concert Hall.
CRC Tri-Party Default shall mean a failure by CRC to observe or perform any obligation to be observed or
performed by it hereunder, and the continuance of such failure beyond any applicable cure period. A CRC
Tri-Party Default shall constitute a Loan Default.
Cure Notice shall mean a written notice pursuant to which CRC notifies Lender that CRC has elected to cure
a default by Borrower that,upon the expiration of applicable cure periods,would constitute a Borrower Loan
Default.
Debt Service shall mean regular(non-default)monthly payments of interest and/or principal due and payable
to Lender pursuant to the Loan Agreement and the Note.
Default Rate shall have the meaning set forth in the Loan Agreement.
Event of Default shall have the meaning set forth in the Loan Agreement.
Grant Account shall mean the"Grant Account"defined in,and established pursuant to,the Loan Agreement.
Grant Account Deposits shall mean all funds on deposit in the Grant Account(including interest that has
accrued on such funds and remains in the Grant Account).
Grant Agreement shall mean the Grant Agreement of even date herewith executed by and between CRC
and Borrower with respect to the Loan.
!SBA Audit Report shall mean, with respect to a calendar year, the final audit report of the Indiana State
Board of Accounts.
Laws shall mean all applicable federal,state,or local laws,statutes,ordinances,rules,or regulations,or any
orders or decrees of any court, agency,or regulatory body.
Lender Fees shall mean regular(non-default)lender fees,costs,and expenses due and payable by Borrower
to Lender under 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 Lender to Borrower made to finance the payment of Aggregate Costs, which
loan is in the original principal amount of$8,500,000.00.
Loan Agreement shall mean that certain Loan Agreement of even date herewith executed by and between
Lender and Borrower.
Loan Default shall mean:(a)an"Event of Default"under any of the Loan Documents;provided that,if"Event
of Default"is not a defined term in any Loan Document,then,with respect to such Loan Document,there shall
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be a Loan Default if Borrower is in default thereunder beyond any applicable notice or cure periods; or(b)a
CRC Tri-Party Default.
Loan Default Notice shall mean a written notice pursuant to which Lender notifies CRC that a Loan Default
exists.
Loan Documents shall mean the documents evidencing and/or securing the Loan,including,specifically,the
Loan Agreement, the Note, and the Collateral Assignment.
Loan Interests shall mean:(a)the Loan;(b)the Loan Documents;(c)the collateral assignments and security
interests granted in the Collateral Assignment; and (d) all rights and interests of Lender with respect to the
Loan and under the Loan Documents,including,specifically,the right to:(I)enforce the terms and conditions
of the Loan Documents; (ii) collect the Accrued Interest and the Outstanding Principal Balance; and
(iii)exercise all rights and remedies afforded by the Laws to secured lenders with respect to security interests.
Loan Interests Closing shall mean the closing with respect to the purchase by CRC of the Loan interests.
Loan Purchase Date shall mean the date on which the Loan Interests Closing occurs.
Loan Purchase Price shall mean the Base Purchase Price or the Adjusted Purchase Price, as applicable.
Loan Rate shall mean the regular(non-default)rate of interest accruing on the Outstanding Principal Balance
pursuant to the Loan Documents.
Maturity Date shall mean the date on which the Outstanding Principal Balance is scheduled to become due
in full pursuant to the Note.
Note shall mean that certain Promissory Note of even date herewith executed by Borrower in favor of Lender
and evidencing the Loan.
Outside Closing Date shall mean,with respect to the Loan Interests Closing,the date that is 15 days after
Lender delivers the Put Exercise Notice;provided that,in the case of an exercise of the Put Option as a result
of a Borrower Loan Default,the Outside Closing Date shall mean the date that is 15 days after the expiration
of the Standstill Period.
Outstanding Principal Balance shall mean the Base Outstanding Principal Balance or the Adjusted
Outstanding Principal Balance, as applicable.
Put Exercise Notice shall mean a written notice pursuant to which Lender notifies CRC that Lender is
exercising the Put Option.
Put Option shall mean the option (but not the obligation) of Lender to require CRC to purchase the Loan
Interests from Lender for the Base Purchase Price,except to the extent that Subsection 2(c)(iii)is applicable.
Standstill Period shall mean the period: (a) commencing upon delivery of a Loan Default Notice; and
(b)ending on the last to occur of the date:(i)that is 30 days after delivery of the Loan Default Notice to CRC;
or (ii) of the expiration of the cure period provided to CRC in Section 5. Notwithstanding the foregoing, if
Lender has exercised the Put Option, then the Standstill Period shall end on the first to occur of the date:
(a)determined pursuant to clause(b)of the prior sentence;or(b)on which the Loan Interests Closing occurs;
provided that,if,due to a failure of Lender,the Loan Interests Closing does not occur on or before the Outside
Closing Date, then the Standstill Period shall be extended until the Loan Interests Closing occurs.
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2. Put Option.
.(a) Put Option. If there is a Loan Default,then the Put Option shall apply. As provided
in the definition of Put Option,the Base Purchase Price shall apply,except in the event that
Subsection 2(c)(ili)is applicable.
(b) Exercise.
(1) Lender shall deliver a Loan Default Notice to CRC concurrently with
any notice provided to Borrower with respect to the Loan Default; provided
that, if Lender: (A) is not obligated to (or otherwise does not) provide any
such notice to Borrower;and(B)intends to exercise any of its remedies with
respect to such Loan Default; then Lender shall deliver a Loan Default
Notice to CRC prior to exercising any such remedies.
(ii) If Lender delivers a Loan Default Notice to CRC, then, at any time
after delivery thereof, Lender may exercise the Put Option by delivering a
Put Exercise Notice to CRC; provided that, notwithstanding anything to the
contrary set forth herein:
(A) if: (1) the underlying Loan Default is a Borrower
Loan Default; and (2) prior to the last to occur of the date:
(aa)that is 30 days after delivery of the Loan Default Notice
to CRC;or(bb)on which the Standstill Period expires;the
Loan Default is cured; or
(B) if: (1) the underlying Loan Default is a CRC
Tri-Party Default; and (2) prior to the last to occur of the
date: (aa)that is 30 days after delivery of the Loan Default
Notice to CRC; or(bb)on which the cure period provided
to CRC in Section 5 expires; the Loan Default is cured:
then: (A) the exercise by Lender of the Put Option shall be deemed to be
rescinded and of no further force or effect; and (B) neither the Outside
Closing Date nor any other term or condition of Subsection 2(c)shall apply.
(iii) Notwithstanding anything to the contrary set forth herein or in the
Loan Documents, if, prior to the expiration of the Standstill Period, Lender
delivers a Put Exercise Notice to CRC,then Lender shall not exercise any
of its remedies or apply the Default Rate with respect to such Loan Default,
unless,due to a failure of CRC,the Loan Interests Closing has not occurred
as of the Outside Closing Date.
(c) Closing.
(i) if Lender exercises the Put Option,then the Loan Interests Closing
shall occur on or before the date that is 15 days after Lender delivers the
Put Exercise Notice to CRC;provided that,in the case of an exercise of the
Put Option as a result of a Borrower Loan Default (and not a CRC Tri-Party
Default), the Loan Interests Closing shall not occur until the date that is 15
days after the expiration of the Standstill Period.
(ii) At the Loan Interests Closing:(A)CRC shall pay the Loan Purchase
Price to Lender; and (B) Lender shall assign the Loan Interests to CRC
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pursuant to assignment documents that:(1)are adequate to vest the Loan
Interests in CRC free and clear of the rights or interests of any other party;
(2)contain certifications by Lender to the effect that Lender is not: (aa) in
default under this Agreement(including,without limitation,that Lender is in
compliance with the terms and conditions of Section 3); and (bb)aware of
any defenses or offsets of Borrower to: (i) enforcement by CRC, as
assignee of Lender, of the Loan Documents; (ii) collection by CRC, as
assignee of Lender, of any amounts due from Borrower under the Loan
Documents; and/or (iii) exercise by CRC, as assignee of Lender, of the
rights and remedies afforded by the Laws to secured lenders with respect
to security interests; and (3)otherwise reasonably are acceptable to CRC.
(iii) Notwithstanding anything to the contrary set forth herein,if:(A)the
applicable Loan Purchase Price is the Base Purchase Price;and(B)due to
a failure of CRC,the Loan Interests Closing does not occur on or before the
Outside Closing Date; then the applicable Loan Purchase Price
automatically shall become the Adjusted Purchase Price.
3. Prohibitions. In each case, subject to the terms and conditions of this Agreement:
(a) In the case of a Borrower Loan Default,Lender shall not accelerate the Maturity Date
or the payment of all or any portion of the Outstanding Principal Balance, unless and until
Lender has complied with the terms and conditions of Section 5 and either:(i)CRC does not
elect to cure the applicable default by Borrower within the time permitted pursuant to
Section 5; or (ii) CRC: (A)timely elects to cure such default by Borrower; but (B) does not
complete the foregoing within the time permitted pursuant to Section 5.
(b) Lender shall not: (i) require payments by Borrower of all or any portion of the
Outstanding Principal Balance, except: (A) in accordance with the terms and conditions of
the Note with respect to regular payments of principal and interest; (B)when Lender would
be entitled under Subsection 3(a)to accelerate the Maturity Date;or(C)on the Maturity Date;
or (ii) condition acceptance of a prepayment upon receipt of a prepayment premium or
penalty, except in accordance with the terms and conditions of the Loan Documents.
(c) Lender shall not modify,amend,or revise any of the Loan Documents to:(i)increase
the default rate of interest to an amount that exceeds the Loan Rate plus 4%; (ii)increase
the Loan Rate; (iii) change the terms with respect to payment or prepayment of the
Outstanding Principal Balance; (iv) increase or materially change Borrower's obligations
under the Loan Documents;or(v)decrease or materially change Borrower's rights under the
Loan Documents;provided that,notwithstanding the foregoing,the parties agree that Lender
may modify, amend,or revise any of the Loan Documents to the extent necessary to bring
the Loan Documents into compliance with the Laws.
(d) Lender shall not advance Loan proceeds in excess of:(i)$8,500,000.00;plus(ii)the
amount of the Lender Fees; provided that, if the Loan Purchase Price has become the
Adjusted Loan Purchase Price as provided in Subsection 2(c)(iii),then Lender may advance
additional Loan proceeds in accordance with the terms and conditions of the Loan
Documents. Notwithstanding anything to the contrary set forth herein, when Lender Fees
become due, Lender shall notify CRC and CRC shall have the option either to: (i) pay the
amount of such Lender Fees directly to Lender(in which case such amount shall not become
part of the Outstanding Principal Balance); or(ii) authorize Lender to disburse to itself the
amount of such Lender Fees.
(e) Lender shall not waive, release, delete, or compromise the terms or conditions of
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Subsections 9(a),9(c), 10(g), 10(h), 10(i), 10(j), 10(1),and/or 10(m) of the Loan Agreement
(or any of the corresponding Subsections in any other Loan Document)or waive or release
an Event of Default under any of the foregoing Subsections (or any of the corresponding
Subsections in any other Loan Document).
(f) Lender shall not waive, release,delete,or compromise the obligations of Borrower
to pay the Accrued Interest or the Outstanding Principal Balance, except: (i) in compliance
with the terms and conditions of this Agreement;or(ii)if the Loan Purchase Price is reduced
commensurately.
(g) Lender shall not consent to Borrower directly or indirectly selling, transferring,
assigning,conveying,pledging,or otherwise delegating or disposing of its interests in or to,
its rights to or under, or its obligations under or for, the Loan or the Loan Documents.
(h) Lender shall not modify, amend, or revise any of the Loan Documents (or waive,
release,delete,or compromise the rights and remedies of Lender thereunder)so that,if the
Loan Interests were assigned to CRC,the Loan Documents would not provide to CRC, as
assignee,the right to:(i)collect the Accrued Interest and the Outstanding Principal Balance;
and(ii)exercise all rights and remedies afforded by the Laws to secured lenders with respect
to security interests.
(i) Lender shall not modify,amend,or revise any of the Loan Documents to: (i)expand
or enlarge the categories or types of costs,expenses,fees,or charges that may be incurred
by Lender or charged to Borrower; or (ii) otherwise add to or supplement such costs,
expenses,fees, or charges.
(j) Lender shall not directly or indirectly sell, transfer, assign, convey, pledge, or
otherwise delegate or dispose of its interests in or to,or its rights to or under,any of the Loan
Interests,except subjectto the terms and conditions of this Agreement and the rights of CRC
hereunder.
4. CRC Covenants. CRC acknowledges and agrees that, until the Loan has been repaid in full, CRC
at all times shall comply with the following covenants and agreements:
(a) CRC shall comply with all Laws in the performance of its obligations under this
Agreement.
(b) Within 15 days after receipt thereof, CRC shall furnish the ISBA Audit Report to
Lender.
(c) As soon as reasonably is practicable after receipt of written request from Lender
from time to time,CRC shall provide such other information with respect to CRC's operations
as Lender reasonably may request.
(d) If:
(i) 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 this Agreement; or
(ii) there is any material adverse change to the business, operations,
or financial condition of CRC that will have a material and adverse affect on
the ability of CRC to perform its obligations under this Agreement;
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then CRC shall:(I)notify Lender promptly in writing;(ii)prepare and submit to Lender for its
reasonable approval a written plan for addressing and/or responding to such proceeding,
inquiry, investigation, or material adverse change;and (iii)address and/or respond to such
proceeding, inquiry, investigation, or material adverse change in accordance with the plan
approved by Lender.
(e) 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.
5. CRC Cure Right.
(a) Notices. Lender shall provide to CRC copies of all notices of defaults delivered to
Borrower pursuant to the Loan Documents,which copies shall be delivered simultaneously
with the notice delivered to Borrower; provided that, if no notice of default is required to be
delivered to Borrower prior to a default becoming a Loan Default,then,prior to exercising any
of its remedies under the Loan Documents or applying the Default Rate with respect to the
default, Lender shall deliver written notice to CRC.
(b) Default. If such notice is for a default that, upon the expiration of applicable cure
periods, will constitute a Borrower Loan Default (as opposed to a CRC Tri-Party Default),
then CRC shall have the option (but not the obligation)to cure such default; provided that,
to exercise such option,CRC shall deliver a Cure Notice to Lender on or before the date that
is 30 days after CRC receives notice from Lender of the existence of such default. If CRC
timely elects to cure the default, then CRC shall effectuate the cure within 30 days after
delivery of the Cure Notice; provided that, if such default is of a nature that it reasonably
cannot be cured within 30 days,then,so long as CRC commences the cure within the 30 day
period,the period for completing the cure shall be extended for as long as CRC diligently is
pursuing such completion, which extension shall not exceed a period of 90 days.
(c) Standstill. Notwithstanding anything to the contrary set forth in the Loan Documents,
until the expiration of the Standstill Period, Lender shall not exercise any of its remedies
under the Loan Documents or apply the Default Rate with respect to any default that, upon
the expiration of applicable cure periods,will constitute a Borrower Loan Default(as opposed
to a CRC Tri-Party Default). If CRC cures a default by Borrower pursuant to this Section,
then: (i)Lender shall accept such cure by CRC as a cure by Borrower; (ii) Lender shall not
exercise any of its remedies under the Loan Documents with respect to the default,as cured
or addressed by CRC; and (iii)Borrower,immediately upon receipt of written demand,shall
reimburse CRC for all costs and expenses incurred by CRC in connection with effectuating
such cure.
6. Representations.
(a) No Bankruptcy. Each of Borrower and CRC represents that no actions, whether
voluntary or otherwise,are pending against it(and no petition has been filed by or on behalf
of it) or any of its general partners, members, or controlling shareholders under the
bankruptcy or insolvency laws of the United States or any state thereof.
(b) CRC is,and shall continue to be,a redevelopment commission validly existing under
the laws of the State of Indiana.
(c) CRC has taken the necessary actions to authorize the execution and delivery of this
Agreement,and no term or condition of this Agreement contravenes,or is in conflict with,any
resolution of CRC.
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(d) This Agreement: (i) constitutes a legal, valid, and binding obligation of CRC; and
(ii) is enforceable in accordance with its terms and conditions and the Laws.
(e) None of the execution and delivery of, consummation of the transactions and
borrowing contemplated in,or compliance with the terms and conditions of,this Agreement
conflicts with,or constitutes a default under or a violation of:(i)any of the terms or conditions
of any contract or other instrument to which CRC is a party; or(ii)any Law.
(f) 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 this Agreement.
(g) All financial statements and other financial data that have been furnished to Lender
by CRC: (i) are true, correct, and accurate in all material respects; and (ii) reflect fairly the
financial condition of CRC.
(h) CRC is not"insolvent"(as defined in Section 101 of the Federal Bankruptcy Code).
(i) No filing or registration with any Agency is necessary in connection with: (i) the
execution and delivery by CRC of this Agreement; or (ii) the performance by CRC of its
obligations under this Agreement.
Q) 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 this Agreement.
7. CRC Consent. CRC: (a) consents to the collateral assignment of the Grant Agreement to Lender
as security for the Loan; (b)agrees to execute such documents as Lender reasonably may require to effect
or confirm:(i)such collateral assignment;and(ii)the security interest of Lender in the Grant Agreement;and
(c)agrees that,pursuant to the Collateral Assignment,Lender shall have the right,as if Lender were in direct
privity with CRC,to enforce the obligations of CRC under the Grant Agreement until the first to occur of the
date on which: (i)the Loan is repaid in full; or(ii) CRC purchases the Loan Interests.
8. Liability Statement. The Loan:(a)is not a loan to,or indebtedness of,CRC;and(b)is a loan to,and
indebtedness of, Borrower(and not CRC). To induce Lender to make the Loan, CRC, in accordance with
§IC 36-7-14, has agreed to undertake certain limited obligations under this Agreement.
9. Assignment. No party shall assign this Agreement,or its rights or obligations hereunder,without the
prior written consent of each of the other parties; provided that: (a) without the prior written consent of
Borrower or Lender,CRC may assign this Agreement to another agency or instrumentality of the City,of equal
or superior creditworthiness and financial capacity to perform the obligations of CRC hereunder, as
established to the reasonable satisfaction of Lender;and (b)without the prior written consent of Borrower or
CRC,Lender may assign this Agreement to any successor to which all or a portion of the Loan Interests are
assigned, so long as the assignment is subject to the terms and conditions of this Agreement and the rights
of CRC hereunder. Notwithstanding any assignment permitted under this Section:(a)each party shall remain
liable to perform all of the terms and conditions to be performed by it under this Agreement; and (b) the
consent of the other parties with respect to an assignment shall not release the assigning party from such
performance.
10. Deliveries. Each party shall execute and deliver such additional documents and instruments as
reasonably may be required by the other parties to accomplish the purposes of this Agreement.
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11. Indemnity. Each of Lender,Borrower,and CRC shall indemnify and hold harmless the other parties
from and against any and all claims, liabilities, losses, damages, costs, and expenses (including, without
limitation, reasonable attorneys'fees)arising from,or in connection with the breach by Lender,Borrower,or
CRC, respectively, of any term or condition of this Agreement:
12. 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: (a)Lender at Two Meridian Plaza, Suite 300, 10401 North
Meridian Street, Indianapolis, Indiana 46290-1113, Facsimile: 317-616-3642, Attention: Daniel J. Lee, with
a copy to Jerimi J.Ullom,Hall Render,Killian,Heath&Lyman,One American Square,Suite 2000,Box 82064,
Indianapolis, Indiana 46282, Facsimile: 317-633-4878; (b) Borrower at One Indiana Square, Suite 1500,
Indianapolis, Indiana 46204, Facsimile: 317-231-9900,Attn: Ryan Wilmering,with a copy to 30 West Main
Street,Suite 220,Carmel,Indiana 46032, Facsimile: 317-844-3498,Attn:Les Olds;and(c)CRC at 30 West
Main Street, Suite 220, 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.
13. Authority. Each undersigned person executing this Agreement on behalf of Lender, Borrower,and
CRC represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary
action of Lender, Borrower,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 Lender, Borrower, and CRC, respectively.
14. Severability. If any one or more of the terms or conditions of this Agreement is determined to be
invalid, then: (a) such invalidity 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.
15. 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 Marion County, Indiana, or the federal courts with venue that
includes Marion 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.
16. Miscellaneous. Subject to the terms and conditions of Section 9,this Agreement shall inure to the
benefit of, and be binding upon, each of Lender, Borrower, and CRC, and their respective successors and
assigns. If there is a conflict between the terms or conditions of this Agreement and any of the other Loan
Documents, then the terms and conditions of this Agreement shall control. 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.
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IN WITNESS WHEREOF, Lender,Borrower,and CRC have executed this Agreement as of
the date set forth above.
LAKE TYB.4% fJ
By: j ,, ((i/, �t
Daniel J. Lee, Vic: President
CARMEL CITY CENTER COMMUNITY
DEVELOPM NT CORPORATION
OK
By: /
Richer F. Tayl r I I, P.a-ident
THE CITY OF CARMEL
R EVEL�'t EN/T CON
By: 4°- ,,/
Ro ald E. Carter, President
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