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HomeMy WebLinkAboutD-2156-13 Legacy Project - $12,000,000 Economic Development Bond SPONSOR(S): Councilor Snyder ORDINANCE NO. D-2156-13 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, AUTHORIZING THE CITY TO ISSUE ITS TAXABLE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2013 (LEGACY PROJECT), AND APPROVING OTHER ACTIONS IN RESPECT THERETO WHEREAS, the Carmel Economic Development Commission (the "EDC") heretofore conducted a public hearing in accordance with Indiana Code 36-7-12-24(a) regarding the financing of the costs of the acquisition, construction and installation of certain infrastructure improvements (the "Project") for economic development facilities of Falcon Nest II LLC (the "Borrower"), notice of which was published in accordance with Indiana Code 5-3-1;,-at which time the public was informed of an opportunity to express their views for or against the Project and the issuance of bonds therefor; and WHEREAS, following such public hearing, the EDC (i) considered whether the Project will have an adverse competitive effect on similar facilities already constructed or operating in the City of Carmel, Indiana (the "City") and rendered an evaluative report (the "Report"), together with related findings of fact (the "Findings"), regarding the Project and (ii) adopted an authorizing resolution, which resolution has been transmitted hereto, finding, among other things, that (a) the proposed financing will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens, (b) the proposed financing complies with the provisions of Indiana Code 36-7-11.9 and -12, as amended (collectively, the "Act") and (c) further approving the form and terms of the Trust Indenture (including the form of the Bonds -1- contained therein) and the Agreement (including the form of the Note as an exhibit thereto) (as such capitalized terms are hereinafter defined) and recommending this form of Ordinance (the "Ordinance") for approval by the Common Council of the City (the "Council"); and WHEREAS, in compliance with Indiana Code 36-7-12-23(b), the EDC submitted the Report and the Findings to the President of the Carmel Plan Commission and the Superintendent of Carmel Clay Schools for their review, and the EDC has not received any written comments from such officials concerning the Report and the Findings within five (5) days from their respective receipt thereof; and WHEREAS, pursuant to a Trust Indenture (the "Trust Indenture"), between the City and a financial institution in its capacity as a corporate trustee (the "Trustee"), the City proposes to issue its economic development revenue bonds to provide funds for the Project and lending such funds to the Borrower, pursuant to an Agreement (the "Agreement"), between the City and the Borrower, which prescribes the terms and conditions under which the Borrower shall finance such Project and pursuant to which the Borrower will execute and deliver to the City a promissory note evidencing the Borrower's repayment obligation, if any (the "Note") in the principal amount equal to the aggregate principal amount of the Bonds; and WHEREAS, based upon the Report, the Findings and the resolution adopted by the EDC pertaining to the Project, the City hereby finds and determines that the financing approved by the EDC for the Project will be of benefit to the health and general welfare of the City and its citizens, complies with the provisions of the Act and the amount necessary to finance the costs of the Project, will require the issuance, sale and delivery of one or more series of economic development revenue bonds in an aggregate principal amount not to exceed $12,000,000; -2- NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA THAT: SECTION 1. It is hereby found that the financing of the Project for the economic development facilities referred to in the Agreement approved by the EDC and presented to this Council, the issuance and sale of revenue bonds in one or more series and designated as the "City of Carmel, Indiana, Taxable Economic Development Revenue Bonds, Series 2013 (Legacy Project)" (the `Bonds"), the transfer of the proceeds of the Bonds to the Borrower for the financing of a portion of the costs of the Project, the payment of the Bonds from TIF Revenues (as defined in the Trust Indenture) and note payments of the Borrower under the Agreement and the Note, and the securing of said Bonds under the Trust Indenture complies with the purposes and provisions of the Act and will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens. SECTION 2. The proceeds of the Bonds will be used for financing the costs of the Project for the economic development facilities of the Borrower to be located within the portion of the Legacy Project Economic Development Area in the area on the west side of River Road at 146th Street on the far northeast side of the City, as previously designated by the Carmel Redevelopment Commission. SECTION 3. At the public hearing held before the EDC, the EDC considered whether the Project would have an adverse competitive effect on any similar facilities already constructed or operating within the City, and subsequently found, based on the Findings approved in connection with the Report, that the Project would not have an adverse competitive effect. This Council hereby confirms the findings set forth in the EDC's resolution and -3- concludes that the Project will not have an adverse competitive effect on any other similar facilities already constructed or operating within the City, and the facilities will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens. SECTION 4. The City shall issue its Bonds in a total maximum principal amount not to exceed Twelve Million Dollars ($12,000,000). The Bonds shall mature no later than twenty-five (25) years from the date of the first interest payment thereon. The Bonds shall bear interest at a rate or rates not exceeding eight percent (8%) per annum. The Bonds are to be issued for the purpose of procuring funds to pay the costs of the Project, capitalized interest and costs of issuance of the Bonds, as more particularly set forth in the Trust Indenture and the Agreement, incorporated herein by reference. The Bonds will be payable as to principal, premium, if any, and interest from TIF Revenues and the note payments made by the Borrower, if any, under the Agreement and the Note or as otherwise provided in the above-described Trust Indenture. The Bonds shall be issued in fully registered form in denominations of One Hundred Thousand Dollars ($100,000) and integral multiples of One Dollar ($1.00) in excess thereof or as otherwise provided in the Trust Indenture, and shall be redeemable as provided in the Trust Indenture. Payments of principal and interest are payable in lawful money of the United States of America by check mailed or delivered to the registered owners thereof as provided in the Trust Indenture. Pursuant to Indiana Code 36-7-12-25(b), the Bonds shall never constitute a general obligation of, an indebtedness of, or a charge against the general credit of the City nor are the Bonds payable in any manner from revenues raised by taxation except for the pledged TIF Revenues. -4- SECTION 5. The Mayor of the City (the "Mayor") and the Clerk-Treasurer of the City (the "Clerk-Treasurer") are authorized and directed to sell the Bonds to the original purchasers thereof pursuant to a purchase or placement agreement (the "Sale Agreement"), among the City, the Borrower and a designated purchaser, underwriter or placement agent (the "Sale Agent") (as determined by the Mayor and/or the Clerk-Treasurer), at the purchase prices set forth therein, and on the terms and conditions described therein. The Bonds may be offered and sold pursuant to an offering document (the "Offering Document") in form and substance satisfactory to the Mayor or the Clerk-Treasurer and consistent with the parameters of this Ordinance and such Offering Document may be made available and distributed in such manner, at such times, for such periods and in such number of copies as such officers may determine in consultation with the City's financial advisor. The Mayor or the Clerk-Treasurer is authorized to (i) deem a preliminary Offering Document as "nearly final" if required under Rule 15c2-12 under the Securities Exchange Act of 1934; (ii)provide the Offering Document to the Sale Agent, prior to the time the Sale Agent purchases, offers or places the Bonds, for purposes of marketing such Bonds; and (iii) finalize the Offering Document with such changes in form or substance as are necessary and appropriate. SECTION 6. The substantially final forms of the Agreement, the Note, the Trust Indenture and the Bonds approved by the EDC are hereby approved (such documents, together with the Sale Agreement and the Offering Document are herein collectively referred to as the "Financing Documents"). The Mayor and the Clerk-Treasurer are, and each of them is, authorized and directed to execute, attest and affix or imprint by any means the corporate seal of the City, acknowledge and deliver, in the name and on behalf of the City, the Financing -5- Documents, and all other material instruments, agreements, closing papers, certificates, assignments or other documents, to be executed or accepted by it in substantially the forms submitted to the City or its counsel and not inconsistent with the Financing Documents, with such changes therein not inconsistent with this Ordinance and not substantially adverse to the City as may be permitted by the Act and approved by the officers executing the same on behalf of the City without further approval of the Council or of the EDC; provided, however, that no such modification or addition shall change the maximum principal amount of, interest rate on, or terms of the Bonds described in Indiana Code 36-7-12-27(a) as set forth in this Ordinance without further consideration by the Council. The approval of such changes by such officers, to the extent such are not substantially adverse to the City, shall be conclusively evidenced by the execution and attestation or acceptance of receipt of any of the foregoing documents by such officers. The signatures of the Mayor and the Clerk-Treasurer on the Bonds may be either manual or facsimile signatures. A copy of each of the Financing Documents will be available from the Clerk-Treasurer upon request. The Clerk-Treasurer is authorized to arrange for delivery of such Bonds to the Trustee named in the Trust Indenture, and payment for the Bonds will be made to the Trustee named in the Trust Indenture and after such payment, the Bonds will be delivered by the Trustee to the purchasers thereof. The Bonds shall be originally dated the date of issuance and delivery thereof. SECTION 7. The provisions of this Ordinance and the Trust Indenture securing the Bonds shall constitute a contract binding between the City and the holders of the Bonds, and after the issuance of said Bonds, this Ordinance shall not be repealed or amended in any respect -6- which would adversely affect the rights of such holders so long as said Bonds or the interest thereon remains unpaid. SECTION 8. This Ordinance shall be effective upon its passage by the Council and approval by the Mayor of the City, in accordance with Indiana Code 36-4-6 et seq. PASSED AND ADOPTED by the Common Council of the City of Carmel, Indiana this k 1 D day of N 2013, by a vote of 7 ayes and Z) nays. COMMON COUN IL FOR THE CITY OF CARMEL / Ad r.-----/ i<b r-,( Pr;i iding Offi er / Kevin D. Rider r q_ Richard L. Sharp. harp, reside t Pro Tempore Carol Schleif , ) - `' / 4 ri---A—Z.. ''' t •nald E. Carter W. Eric Seidensticker 1 'iAV/A SF inkam ' uc' nyder ATTEST: AL,„,..)get,A, Diana L. Cordray, IAMC, Clerk-Tjeasurer -7- Presented by me to the Mayor of the City of Carmel, Indiana this � g day of 2013, at 7 as �.M. 1 6(it.".7 Diana L. Cordray, IAMC, Cler .LTreasurer Approved by me, Mayor of the City of Carmel, Indiana, this 12 day of N 2013, at 1 aS lames C r.inard, Mayor ATTEST Diana L. Cordray, IAMC, Clerk-Treas er Prepared by: Richard C. Starkey Barnes & Thornburg LLP 11 S. Meridian Street Indianapolis, Indiana 46204 -8- RESOLUTION NO. fIrK?)'' A RESOLUTION OF THE ECONOMIC DEVELOPMENT COMMISSION OF THE CITY OF CARMEL, INDIANA, REGARDING FINANCING FOR FALCON NEST II LLC, AND ALL MATTERS RELATED THERETO WHEREAS, the Economic Development Commission (the "Co linission") of the City of Carmel, Indiana (the "City"), is a commission operating and existing url�'cder and pursuant to the authority of Indiana Code 36-7-11.9 and Indiana Code 36-7-12, each as amended (collectively, the "Act"); and WHEREAS, the Commission is authorized by the Act to investigate, study and survey the need for job opportunities, industrial diversification, water services and pollution control facilities in the City, and to recommend action to improve or promote job opportunities, industrial diversification, water services and the availability of pollution control facilities in the City; and WHEREAS, Falcon Nest II LLC (the "Borrower") has requested that the Commission and the City consider a proposal to finance under the Act a project for the purpose of financing the costs of the acquisition, construction, and installation of certain infrastructure improvements for economic development facilities of the Borrower to be located in a portion of the Legacy Project Economic Development Area in the area on the west side of River Road south of 146th Street in the northeast portion of the City together with all authorized costs incurred in connection therewith, including the costs of issuance of the Bonds (as hereinafter defined) therefor (collectively, the "Project"); and WHEREAS, the Commission has studied the Project and the proposed financing of a portion of the Project and the effect thereof on the health, prosperity, economic stability and general welfare of the City and its citizens; and WHEREAS, the creation of employment opportunities and additional payroll in the City to be achieved by the Project will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens; and WHEREAS, the Commission has held a public hearing for itself and on behalf of the Common Council of the City (the "Common Council"), duly noticed, in connection with the financing of a portion of the Project; NOW, THEREFORE, BE IT RESOLVED, by the Economic Development Commission of the City of Carmel, Indiana, as follows: SECTION 1. The Commission finds that the proposed financing of the Project referred to in the forms of (i) the Agreement, by and between the Borrower and the City (the "Agreement"); and (iii) the Trust Indenture, by and between the City and a corporate trustee to be selected by the City with the approval of the Borrower, which approval shall not be unreasonably withheld (the "Trust Indenture" and, together with the Agreement, the "Financing Documents"), complies with the purposes and provisions of the Act and will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens. SECTION 2. The proposed financing of a portion of the Project for the Borrower and the substantially final forms of the Financing Documents relating to the issuance and sale of an aggregate principal amount of not to exceed Twelve Million Dollars ($12,000,000) of economic development revenue bonds of the City for such financing, along with the form of Ordinance to be adopted by the Common Council, are hereby approved. SECTION 3. The Mayor and Clerk-Treasurer of the City are authorized to make such changes in the Financing Documents without the subsequent approval of this Commission or of the Common Council as are necessary or appropriate to effect the intent of this Resolution and as are permissible under the Act, all to be evidenced by the execution of the Financing Documents by the Mayor of the City and the attestation thereof by the Clerk-Treasurer of the City. SECTION 4. The Commission has held a hearing open to the public and has subsequently considered whether the Project will have an adverse competitive effect on any similar facilities already constructed and operating in or about the City and makes the following special findings of fact based upon the evidence presented: a. No member of the public or competitor has presented any evidence of any kind establishing that the Project would have any adverse competitive effect in any respect. b. In the absence of any evidence of any adverse competitive effect, the benefits to the public clearly indicate that the Project should be supported by the issuance of the City's economic development revenue bonds. SECTION 5. The Report of the Commission relating to the financing of the Project, and the Findings of Fact attached thereto, are hereby approved. SECTION 6. The Commission hereby approves and ratifies the prior publication of the notice of public hearing regarding the Project required by Section 24(a) of the Act. SECTION 7. The Secretary of the Commission shall initial and then insert a copy of the forms of Financing Documents approved by this Resolution in the Minute Book of this Commission. A copy of this Resolution and the other documents approved by this Resolution and the form of Ordinance shall be presented in their substantially final forms by the Secretary of this Commission to the Clerk-Treasurer of the City for presentation to the Common Council. -2- Adopted this 22' day of October, 2013, by the Economic Development Commission of the City of Carmel, Indiana. ECONOMIC DEVELOPMENT COMMISSION OF THE CITY OF CARMEL, INDIANA Presiden Vice President Secretary INDS01 RCS 1422416v2 -3- REPORT OF THE ECONOMIC DEVELOPMENT COMMISSION OF THE CITY OF CARMEL, INDIANA, CONCERNING THE PROPOSED FINANCING OF ECONOMIC DEVELOPMENT FACILITIES FOR FALCON NEST II LLC The Economic Development Commission (the "Commission") of the City of Carmel, Indiana (the "City"), proposes to recommend to the Common Council of the City, that it loan proceeds in the amount not to exceed Twelve Million Dollars ($12,000,000) of an economic development revenue bond financing to Falcon Nest II LLC (the "Borrower"), to be applied to a portion of the costs of the acquisition, construction, installation and equipping of certain infrastructure improvements for economic development facilities of the Borrower to be located in a portion of the Legacy Project Economic Development Area in the area on the west side of River Road south of 146th Street in the northeast portion of the City together with all authorized costs incurred in connection therewith (collectively, the "Project"). A portion of the bond proceeds will be applied to the costs of issuance of the revenue bonds. The total cost of the Project, which will be financed by the proceeds of such bonds, is presently estimated not to exceed Twelve Million Dollars ($12,000,000). Except for the infrastructure improvements being financed from the proceeds of the bonds, no additional public works or services will be necessary or desirable on account of the Project. As set out in the attached "Findings of Fact Regarding the Competitive Impact of the Shops on Main Project," which findings of fact are incorporated herein, the Commission has concluded that the proposed Project will not have an adverse competitive effect on similar facilities already constructed or operating in or near the City. It is further estimated that upon the completion of the acquisition, construction, installation and equipping of the Project, the Project will result in the creation of approximately 325 jobs with an estimated total annual payroll between $6,200,000 and $7,000,000, and provide continued future opportunities for employment. * * * Adopted this 22nd day of October, 2013, by the Economic Development Commission of the City of Carmel, Indiana. ECONOMIC DEVELOPMENT COMMISSION OF THE CITY OF CARMEL, INDIANA r I're _-nt J L) -) Vice President i40 Se rc etary INDS01 RCS 1422417v1 -2- FINDINGS OF FACT REGARDING THE COMPETITIVE IMPACT OF THE LEGACY PROJECT Based on a careful consideration of evidence and testimony submitted to the Economic Development Commission (the "Commission") of the City of Cannel, Indiana (the "City"), the Commission hereby makes the following findings of fact with respect to the competitive impact on similar facilities already constructed or operating in the City, as a result of a proposed economic development facilities project of Falcon Nest II LLC (the "Borrower"). 1. The economic development facilities project to be financed consists of a portion of the costs of the acquisition, construction, installation and equipping of certain infrastructure improvements, including, without limitation, road and street improvements, utility improvements and related site improvements, which are being constructed in order to provide infrastructure to support a multi-purpose commercial and residential real estate development (collectively, the "Project"), to be constructed in the area within the City heretofore designated as the "Legacy Project Allocation Area" located within the Legacy Project Economic Development Area (the "Area"). 2. The total cost of the Project is estimated to range from Two Hundred Fifty Million Dollars ($250,000,000) to Three Hundred Million Dollars ($300,000,000) (it being understood, however, that the exact cost of the Project will depend on the future tenants and owners of the property being developed by the Borrower). The cost of the portion of the Project to be financed with the proposed economic development revenue bonds of the City, including costs in connection with the issuance of such bonds, will not exceed Twelve Million Dollars ($12,000,000). 3. It is presently estimated that upon completion of the acquisition, construction, installation and equipping of the Project, the Project will result in the creation of approximately 325 jobs with an estimated total annual payroll ranging between Six Million Two Hundred Thousand Dollars ($6,200,000) and Seven Million Dollars ($7,000,000), and will provide continued future opportunities for employment (it being understood, however, that the exact number of jobs and total annual payroll will depend upon the future tenants and owners of the property being developed by the Borrower and their employment needs). 4. The Project will be of benefit to the health, prosperity, economic stability and general welfare of the City and its citizens and complies with the purposes and provisions of Indiana Code 36-7-11.9 and Indiana Code 36-7-12, each as amended. 5. The Project will not have an adverse competitive effect on similar facilities already constructed or operating in the City. * * * Adopted this 22n1 day of October, 2013, by the Economic Development Commission of the City of Carmel, Indiana. ECONOMIC DEVELOPMENT COMMISSION OF THE CITY OF CARMEL,liresi•-nt / ■1•44\,t0 _(),LOAvv--) Vice President , Secretary INDS01 RCS 1422418v1 -2- BDDB01 5709473v1 AGREEMENT BETWEEN FALCON NEST II LLC, as Borrower AND CITY OF CARMEL, INDIANA, as Issuer $12,000,000 CITY OF CARMEL, INDIANA, ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2013 (LEGACY PROJECT) Dated as of November 1, 2013 Certain of the rights of the Issuer hereunder have been assigned to Regions Bank, as Trustee, as of the date hereof relating to the above-referenced Series 2013 Bonds, from the Issuer. TABLE OF CONTENTS Page ARTICLE I. DEFINITIONS AND EXHIBITS 3 Section 1.1. Terms Defined 3 Section 1.2. Rules of Interpretation 6 Section 1.3. Exhibits 6 ARTICLE II. REPRESENTATIONS; LOAN OF SERIES 2013 BOND PROCEEDS 7 Section 2.1. Representations by Issuer 7 Section 2.2. Representations by Borrower 7 Section 2.3. Loan of Series 2013 Bond Proceeds by Issuer 8 ARTICLE III. PARTICULAR COVENANTS OF THE BORROWER 9 Section 3.1. Consent to Assignments to Trustee 9 Section 3.2. Payment of Principal, Premium and Interest; Payments Pledged 9 Section 3.3. Maintenance of Corporate Existence 11 Section 3.4. Trustee's Right to Perform Borrower's Covenants; Advances 11 Section 3.5. Indemnity 12 Section 3.6. Issuance of Substitute Series 2013 Note 13 Section 3.7. Payment of Expenses of Issuance of Series 2013 Bonds 13 Section 3.8. Funding of Indenture Funds; Investments 13 Section 3.9. Other Amounts Payable by the Borrower 13 Section 3.10. Credits on Series 2013 Note 14 Section 3.11. Completion of Project. 14 Section 3.12. Sale, Substitution, or Lease of Facilities 16 ARTICLE IV. PREPAYMENT OF SERIES 2013 NOTE 17 Section 4.1. Optional Prepayment 17 Section 4.2. Mandatory Prepayment 17 Section 4.3. Notice of Prepayment 17 ARTICLE V. EVENTS OF DEFAULT AND REMEDIES THEREFOR 18 Section 5.1. Events of Default 18 Section 5.2. Trustee May Enforce Demand 19 Section 5.3. Remedies Cumulative 20 Section 5.4. Delay or Omission Not a Waiver 20 Section 5.5. Waiver of Extension, Appraisement or Stay Laws 20 Section 5.6. Remedies Subject to Provisions of Law 20 -i- ARTICLE VI. IMMUNITY 21 Section 6.1. Immunity 21 ARTICLE VII. SUPPLEMENTS AND AMENDMENTS TO THIS AGREEMENT 22 Section 7.1. Supplements and Amendments to this Agreement 22 ARTICLE VIII.DEFEASANCE 23 Section 8.1. Defeasance 23 ARTICLE IX. MISCELLANEOUS PROVISIONS 24 Section 9.1. Agreement for Benefit of Parties Hereto 24 Section 9.2. Severability 24 Section 9.3. Limitation on Interest 24 Section 9.4. Addresses for Notice and Demands 24 Section 9.5. Successors and Assigns 25 Section 9.6. Counterparts 25 Section 9.7. Governing Law 25 (End of Table of Contents) -ii- AGREEMENT This is an AGREEMENT (the "Agreement") dated as of November 1, 2013, between FALCON NEST LLC, a limited liability company duly organized and validly existing under the Iaws of the State of Indiana (the "Borrower"), and the CITY OF CARMEL, INDIANA, a municipal corporation duly organized and validly existing under the laws of the State of Indiana (the "Issuer"). PRELIMINARY STATEMENT WHEREAS, Indiana Code 36-7-11.9 and Indiana Code 36-7-12, each as amended (collectively, the "Act"), authorizes and empowers the Issuer to issue revenue bonds and to lend the proceeds thereof for the purpose of financing costs of construction of infrastructure and for diversification of economic development and promotion of job opportunities in or near such Issuer, and vests the Issuer with powers that may be necessary to enable it to accomplish such purposes; WHEREAS, on May 21, 2009, the City of Carmel Redevelopment Commission (the "Redevelopment Commission") adopted a declaratory resolution (the "Declaratory Resolution") establishing the Legacy Project Economic Development Area (the "Area") located within the corporate boundaries of the Issuer and, following a public hearing, the Declaratory Resolution was confirmed by a confirmatory resolution adopted on October 15, 2009; WHEREAS, the Declaratory Resolution approved the economic development plan (the "Plan") for the Area, which Plan contained specific recommendations for economic development in the Area, and the Declaratory Resolution established an allocation area in accordance with IC 36-7-14-39, as amended (the "Allocation Area"), for the purpose of capturing property taxes generated from the incremental assessed value of real property located in the Allocation Area; WHEREAS, the Issuer, upon finding that the Project (as hereinafter defined) and the proposed financing of the construction thereof will create additional employment opportunities in the jurisdiction of the Issuer, will benefit the health, prosperity, economic stability and general welfare of the Issuer and its citizens and will comply with the purposes and provisions of the Act, adopted an ordinance approving the proposed financing; WHEREAS, the Issuer intends to issue its Taxable Economic Development Revenue Bonds, Series 2013 (Legacy Project), in the aggregate principal amount of not to exceed Twelve Million Dollars ($12,000,000) (the "Series 2013 Bonds") pursuant to the Trust Indenture dated as of November 1, 2013 (the "Indenture"), between the Issuer and Regions Bank, as Trustee (the "Trustee"), and to lend the proceeds of the Series 2013 Bonds pursuant to the provisions of this Agreement to the Borrower to finance certain infrastructure improvements in, serving or benefiting the Area, as more fully set forth in Exhibit A attached hereto (the "Project"); WHEREAS, this Agreement provides for the repayment by the Borrower of the loan of the proceeds of the Series 2013 Bonds and further provides for the Borrower's repayment obligation to be evidenced by the Borrower's Note, Series 2013 (the "Series 2013 Note"), in substantially the form attached hereto as Exhibit B; WHEREAS, pursuant to the Indenture, the Issuer will pledge and assign the Series 2013 Note and assign certain of its rights under this Agreement to the Trustee as security for the Series 2013 Bonds; and WHEREAS, the Series 2013 Bonds issued under the Indenture will be payable solely out of (i)the payments to be made by the Borrower on the Series 2013 Note issued hereunder; (ii) TIF Revenues; or (iii) Series 2013 Bond proceeds and proceeds of condemnation and insurance; NOW, THEREFORE, in consideration of the premises, the loan of the proceeds of the Series 2013 Bonds to be made by the Issuer, the acceptance of the Series 2013 Note by the Issuer, and of other good and valuable consideration, the receipt of which is hereby acknowledged, the Borrower has executed and delivered this Agreement. This Agreement is executed upon the express condition that if the Borrower shall pay or cause to be paid all indebtedness hereunder and shall keep, perform and observe all and singular the covenants and promises expressed in the Series 2013 Note and this Agreement to be kept, performed and observed by the Borrower, then this Agreement and the rights hereby granted shall cease, determine and be void, this Agreement otherwise to remain in full force and effect. The Borrower and the Issuer hereby further covenant and agree as follows: -2- ARTICLE I. DEFINITIONS AND EXHIBITS Section 1.1. Terms Defined. In addition to the words and terms elsewhere defined in this Agreement or the Indenture, the following words and terms as used in this Agreement shall have the following meanings unless the context or use indicates another or different meaning or intent: "Act" means, collectively, Indiana Code 36-7-11.9 and 36-7-12, each as amended. "Annual Fees" means annual Trustee Fees and annual fees related to monitoring Tax Increment. "Area" means the Legacy Project Economic Development Area and the Allocation Area, as established by the Redevelopment Commission. "Bonds" means the City of Carmel, Indiana, Taxable Economic Development Revenue Bonds, Series 2013 (Legacy Project). "Bond Counsel" means a nationally recognized firm of municipal bond attorneys acceptable to the Trustee. "Bond Fund"means the Bond Fund established by Section 4.2 of the Indenture. "Bondholder" or "owner of a Bond" or any similar term means the owner of a Bond. "Borrower" means Falcon Nest II, a limited liability company duly organized and validly existing under the laws of the State of Indiana and qualified to do business in the State of Indiana, or any successors thereto permitted under Section 3.3 hereof "Construction Fund" means the Construction Fund established in Section 4.3 of the Indenture. "Costs of Construction" means the following categories of costs of providing for an "economic development project" as defined and set forth in the Act: (i) the "Bond Issuance Costs," namely, the costs, fees and expenses incurred or to be incurred by the Issuer, the Redevelopment Commission, and the Borrower in connection with the issuance and sale of the Series 2013 Bonds, including underwriting or other financing fees (including applicable counsel fees), the fees and disbursements of Bond Counsel, the acceptance fee of the Trustee, application fees and expenses, publication costs, the filing and recording fees in connection with any filings or recording necessary under the Indenture or to perfect the lien thereof, the out-of-pocket costs of the Issuer, the fees and disbursements of counsel to the Borrower, the fees and disbursements of the Borrower's accountants, the fees and disbursements of counsel to the Issuer and Redevelopment Commission, the fees and disbursements of counsel to the purchasers of -3- the Series 2013 Bonds, the costs of preparing or printing the Series 2013 Bonds and the documentation supporting the issuance of the Series 2013 Bonds, the costs of reproducing documents, and any other costs of a similar nature reasonably incurred; (ii) the cost of insurance of all kinds that may be required or necessary in connection with the construction of the Project; (iii) all costs and expenses of site preparation, environmental remediation and abatement and engineering services, including the costs of the Issuer, the Redevelopment Commission or the Borrower for test borings, surveys, estimates, plans and specifications and preliminary investigation therefor, and for supervising construction, as well as for the performance of all other duties required by or consequent upon the proper construction of the Project; (iv) all costs and expenses which the Issuer, Redevelopment Commission, or the Borrower shall be required to pay, under the terms of any contract or contracts (including the architectural and engineering, development, and legal services with respect thereto), for the construction of the Project; and (v) any sums required to reimburse the Issuer, the Redevelopment Commission, or the Borrower for advances made by either of them for any of the above items or for any other costs incurred and for work done by either of them which are properly chargeable to the Project. "Counsel" means an attorney duly admitted to practice law before the highest court of any state and, without limitation, may include legal counsel for either the Issuer or the Borrower. "Facilities" means the commercial and residential development project to be located in the Legacy Project Economic Development Area. "Fitch" means Fitch Ratings, or any successor rating agency thereto. "Government Obligations" means (a) direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America are pledged, (b) obligations issued by a person controlled or supervised by and acting as an instrumentality of the United States of America, the payment of the principal of and premium, if any, and interest on which is fully guaranteed as a full faith and credit obligation of the United States of America (including any securities described in (a) or (b) issued or held in book-entry form on the books of the Department of Treasury of the United States of America or Federal Reserve Bank), (c) certificates or receipts representing direct ownership interests in obligations or specified portions (such as principal or interest) of obligations described in (a) or (b), which obligations are held by a custodian in safekeeping on behalf of such certificates or receipts, or (d) senior, unsubordinated obligations of the Federal National Mortgage Association of Federal Home Loan Mortgage Corporation; provided, that with respect to obligations of the sort described in clause (d), (i) such obligations are rated in the highest rating category for such obligation by any of Moody's, S&P or Fitch, and (ii) in the event that any Series 2013 Bonds are defeased with -4- such obligations in whole or in part, those obligations shall be concurrently rated in the highest rating category for such obligations by any of Moody's, S&P or Fitch. "Indenture" means the Trust Indenture dated as of November 1, 2013, between the Issuer and the Trustee, and all amendments and supplements thereto. "Issuer" means the City of Carmel, Indiana, a municipal corporation duly organized and validly existing under the laws of the State. "Loan" means the loan by the Issuer to the Borrower of the proceeds of the sale of the Series 2013 Bonds. "Moody's"means Moody's Investors Service or any successor rating agency thereto. "Net Proceeds," when used with respect to any insurance or condemnation award, means the gross proceeds from the insurance or condemnation award remaining after payment of all expenses (including attorneys' fees and expenses and any expenses of the Trustee or the Issuer) incurred in the collection of such gross proceeds. "Project"means certain infrastructure improvements in, serving or benefiting the Area, as more particularly described in Exhibit A attached hereto. "Qualified Investments" means, to the extent permitted by the laws of the State, (i) Government Obligations; (ii) bonds, debentures, participation certificates or notes issued by any of the following: Federal Farm Credit Banks, Federal Financing Bank, Federal Home Loan Banks, Federal National Mortgage Association or Federal Home Loan Mortgage Corporation; (iii) certificates of deposit, time deposits and other interest-bearing deposit accounts with any banking institution, including the Trustee, which are insured by the Federal Deposit Insurance Corporation; (iv) any money market fund, sweep account, mutual fund or trust, which may be funds or trusts of the Trustee or Paying Agent, as shall invest solely in a portfolio of obligations described in (i) or (ii) above or money market funds rated in the highest category by Moody's or S&P; (v) repurchase agreements with the Trustee or any of its affiliated banks or any other bank having a net worth of at least $100,000,000 secured by a pledge and physical delivery (except in the case of securities issued in book-entry form, which shall be registered in the name of the Trustee) to the Trustee of obligations described in (i) or(ii) hereof; (vi) municipal obligations the interest on which would be excluded from the gross income of the owners thereof for federal tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended, if (a)rated in one of the three highest rating categories of either Moody's or S&P at the time of purchase, or (b) if fully secured by securities guaranteed as to principal and interest by the United States of America; and (vii) stock of a Qualified Regulated Investment Company which invests solely in obligations described in (vi) above. "Redevelopment Commission" means the City of Carmel Redevelopment Commission. "S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill Company, Inc., or any successor rating agency thereto. -5- "State"means the State of Indiana. "Tax Increment" means all real property tax proceeds attributable to the assessed valuation within the Area as of each assessment date in excess of the base assessed value. The incremental assessed value is multiplied by the current property tax rate (per $100 assessed value). "TIF Revenues" means Tax Increment received by the Redevelopment Commission and pledged to the Issuer pursuant to a resolution adopted on April 22, 2009, by the Redevelopment Commission, consisting of an amount of Tax Increment equal to 100% of the debt service due on the Series 2013 Bonds, plus Annual Fees, for a term not to exceed the term of the Series 2013 Bonds. "Trustee" means the trustee and/or co-trustee at the time serving as such under the Indenture, and shall initially mean Regions Bank. Section 1.2. Rules of Interpretation. For all purposes of this Agreement, except as otherwise expressly provided, or unless the context otherwise requires: (a) "This Agreement" means this instrument as originally executed and as it may from time to time be supplemented or amended pursuant to the applicable provisions hereof (b) All references in this instrument to designated "Articles," "Sections" and other subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as originally executed. The words "herein," "hereof' and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. (c) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular and the singular as well as the plural. (d) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles as consistently applied. (e) Any terms not defined herein but defined in the Indenture shall have the same meaning herein. (f) The terms defined elsewhere in this Agreement shall have the meanings herein prescribed for them. Section 1.3. Exhibits. The following Exhibits are attached to and by reference made a part of this Agreement. Exhibit A. Project Description. Exhibit B. Form of Series 2013 Note. (End of Article I) -6- ARTICLE II. REPRESENTATIONS; LOAN OF SERIES 2013 BOND PROCEEDS Section 2.1. Representations by Issuer. The Issuer represents and warrants that: (a) The Issuer is a municipal corporation organized and existing under the laws of the State of Indiana. Under the provisions of the Act, the Issuer is authorized to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder. The Issuer has been duly authorized to execute and deliver this Agreement. The Issuer agrees that it will do or cause to be done all things within its control and necessary to preserve and keep in full force and effect its existence. (b) The Issuer agrees to provide funds from the issuance of the Series 2013 Bonds to loan to the Borrower for financing the construction of the Project for the benefit of the holders of the Series 2013 Bonds, to create additional employment opportunities in Carmel, Indiana and to benefit the health, prosperity, economic stability and general welfare of the Issuer and its citizens, and to secure the Series 2013 Bonds by pledging certain of its rights and interest in this Agreement and the Series 2013 Note to the Trustee. (c) The Issuer represents that the Series 2013 Note will be assigned to the Trustee pursuant to the Indenture and that no further assignment is contemplated by the Issuer, since the Issuer recognizes that the Series 2013 Note has not been registered under the Securities Act of 1933. Section 2.2. Representations by Borrower. The Borrower represents and warrants that: (a) It is a limited liability company duly organized and validly existing under the laws of the State of Indiana and authorized to do business in the State of Indiana, is not in violation of any laws in any manner material to its ability to perform its obligations under this Agreement and the Series 2013 Note, has full power to enter into and perform its obligations under this Agreement and the Series 2013 Note, and by proper action has duly authorized the execution and delivery of this Agreement and the issuance of the Series 2013 Note. (b) The Project is of the type authorized and permitted by the Act. (c) All of the proceeds from the Series 2013 Bonds (including any income earned on the investment of such proceeds) will be used for Costs of Construction. (d) The Borrower intends to operate the Facilities, or cause the Facilities for which the Project is being constructed to be operated, as an economic development facility under the Act, until the expiration or earlier termination of this Agreement as provided herein. (e) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, including execution and delivery of the Series 2013 Note, nor the fulfillment of or compliance with the terms and conditions of this Agreement, will contravene the Borrower's operating agreement or any law or governmental rule, regulation or -7- order presently binding on the Borrower or conflict with or result in a breach of the terms, conditions or provisions of any agreement or instrument to which Borrower is now a party or by which it is bound, or constitute a default under any of the foregoing, or result in the creation or imposition of any liens, charges, or encumbrances whatsoever upon any of the property or assets of the Borrower under the terms of any instrument or agreement. (f) The execution, delivery and performance by the Borrower of this Agreement and the Series 2013 Note do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any federal, state or other governmental authority or agency not previously obtained or performed. (g) This Agreement and the Series 2013 Note have been duly executed and delivered by the Borrower and constitute the legal, valid and binding agreements of the Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights in general. The enforceability of the Borrower's obligations under said documents is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). (h) There are no actions, suits or proceedings pending, or, to the knowledge of the Borrower, threatened, before any court, administrative agency or arbitrator which, individually or in the aggregate, might result in any material adverse change in the financial condition of the Borrower or might impair the ability of the Borrower to perform its obligations under this Agreement or the Series 2013 Note. (i) No event has occurred and is continuing which with the lapse of time or the giving of notice would constitute an event of default under this Agreement or the Series 2013 Note. (j) The Borrower reasonably anticipates that it will create, either directly or indirectly, additional jobs and employment opportunities at the Facilities related to the Project. Section 2.3. Loan of Series 2013 Bond Proceeds by Issuer. Concurrently with the execution and delivery hereof, the Issuer is issuing the Series 2013 Bonds and is lending the proceeds from the sale thereof to the Borrower by making the deposits and payments specified in Section 3.1 of the Indenture. Such Loan is being evidenced by the execution and delivery by the Borrower of the Series 2013 Note substantially in the form attached hereto as Exhibit B. (End of Article II) -8- ARTICLE III. PARTICULAR COVENANTS OF THE BORROWER Section 3.1. Consent to Assignments to Trustee. The Borrower acknowledges and consents to the pledge and assignment of the Series 2013 Note and the assignment of the Issuer's rights hereunder to the Trustee pursuant to the Indenture and agrees that the Trustee may enforce the rights, remedies and privileges granted to the Issuer hereunder to receive payments under Sections 3.5, 3.7 and 3.9 hereof and to execute and deliver supplements and amendments to this Agreement pursuant to Section 7.1 hereof. Section 3.2. Payment of Principal, Premium and Interest; Payments Pledged. (a) The Borrower will duly and punctually pay the principal of, premium, if any, and interest on the Series 2013 Note at the rates and the places and in the manner mentioned in the Series 2013 Note and this Agreement according to the true intent and meaning thereof and hereof as follows: on or before any Interest Payment Date for the Series 2013 Bonds or any other date that any payment of interest, premium, if any, or principal is required to be made in respect of the Series 2013 Bonds pursuant to the Indenture, until the principal of, premium, if any, and interest on the Series 2013 Bonds shall have been fully paid or provision for the payment thereof shall have been made in accordance with the Indenture, it will pay in immediately available funds a sum which, together with any moneys available for such payment in the Series 2013 Bond Fund (including, without limitation, any TIF Revenues), will enable the Trustee to pay the amount payable on such date as principal of(whether at maturity or upon redemption or acceleration or otherwise), premium, if any, and interest on the Series 2013 Bonds as provided in the Indenture. Section 4.4 of the Indenture provides that the Issuer shall transfer to the Series 2013 Bond Fund on each January 1 and July 1, beginning on January 1, 2014, the TIF Revenues for the payment of the principal and interest on the Series 2013 Bonds due during the bond year ending on the next succeeding February 1, plus Annual Fees, which transfers shall be a credit against and serve to reduce the Borrower's obligations to make payments under the Series 2013 Note and this Agreement. (b) Except for Annual Fees paid from the TIF Revenues pursuant to Section 4.4 of the Indenture, the Borrower also agrees to pay directly to the Trustee so long as there are Series 2013 Bonds outstanding (i) all fees, charges and expenses, including agent and counsel fees, of the Trustee and the paying agents incurred under the Indenture, as and when the same become due; (ii) all costs incident to the payment of the principal of, premium, if any, and interest on the Series 2013 Bonds as the same become due and payable, including all costs and expenses in connection with the call, redemption and payment of Series 2013 Bonds; (iii) an amount sufficient to reimburse the Issuer for all expenses incurred by the Issuer under this Agreement and in connection with the performance of its obligations under this Agreement or the Indenture; (iv) all expenses incurred in connection with the enforcement of any rights under this Agreement or the Indenture by the Issuer, the Trustee or the holders of the Series 2013 Bonds; and (v) all other payments of whatever nature which the Borrower has agreed to pay or assume under the provisions of this Agreement; provided, however, that the Borrower may, without creating a default under this Agreement, contest in good faith the necessity for any such extraordinary -9- services and extraordinary expenses and the reasonableness of any such fees, charges or expenses. (c) The Borrower covenants and agrees with and for the express benefit of the Issuer, the Trustee and the owners of the Series 2013 Bonds that all payments pursuant hereto and to the Series 2013 Note shall be made by the Borrower on or before the date the same become due, and the Borrower shall perform all of its other obligations, covenants and agreements hereunder, without notice or demand (except as provided herein), and without abatement, deduction, reduction, diminution, waiver, abrogation, set-off, counterclaim, recoupment, defense or other modification or any right of termination or cancellation arising from any circumstance whatsoever, whether now existing or hereafter arising, and regardless of any act of God, contingency, event or cause whatsoever, and irrespective (without limitation) of whether the Project or the Borrower's title to the Facilities or any part thereof is defective or nonexistent, or whether the Borrower's revenues are sufficient to make such payments, and notwithstanding any damage to, or loss, theft or destruction of, the Project or Facilities or any part thereof, expiration of this Agreement, any failure of consideration or frustration of purpose, the taking by eminent domain or otherwise of title to or of the right of temporary use of, all or any part of the Project or Facilities, legal curtailment of the Borrower's use thereof, whether with or without the approval of the Issuer, any change in the tax or other laws of the United States of America, the State of Indiana, or any political subdivision of either thereof, any change in the Issuer's legal organization or status, or any default of the Issuer hereunder, and regardless of the invalidity of any portion of this Agreement; and the Borrower hereby waives the provisions of any statute or other law now or hereafter in effect impairing or conflicting with any of its obligations, covenants or agreements under this Agreement or which releases or purports to release the Borrower therefrom. Nothing in this Agreement shall be construed as a waiver by the Borrower of any rights or claims the Borrower may have against the Issuer under this Agreement or otherwise, but any recovery upon such rights and claims shall be had from the Issuer separately, it being the intent of this Agreement that the Borrower shall be unconditionally and absolutely obligated without right of set-off or abatement, to perform fully all of its obligations, agreements and covenants under this Agreement for the benefit of the holders of the Series 2013 Bonds. (d) As long as the Series 2013 Bonds are outstanding, the Borrower covenants to pay all property tax bills for its property in the Area (including the Facilities) owned by the Borrower, its affiliates and its subsidiaries before the tax bills are delinquent, subject to the Borrower's right to contest in good faith any property tax assessments. (e) It is understood and agreed that all payments made by Borrower pursuant to this Section 3.2 and the Series 2013 Note are pledged to the Trustee pursuant to the granting clauses of the Indenture. The Borrower assents to such pledge and hereby agrees that, as to the Trustee, its obligation to make such payments shall be absolute and shall not be subject to any defense or any right of set-off, counterclaim or recoupment arising out of any breach by the Issuer or the Trustee of any obligation to the Borrower, whether hereunder or otherwise, or out of any indebtedness or liability at any time owing to the Borrower by the Issuer. The Issuer hereby directs the Borrower, and the Borrower hereby agrees, to pay to the Paying Agent at its principal office all said amounts payable by the Borrower pursuant to this Section 3.2 and the Series 2013 Note. -10- (f) The obligations of the Borrower to make the required payments and to perform and observe the other agreements on its part shall be absolute and unconditional, irrespective of any defense or any rights of set-off, recoupment or counterclaim it might otherwise have against the Issuer, and the Borrower shall pay absolutely during the term of this Agreement the payments to be made on account of the Loan and all other payments required thereunder free of any deductions and without abatement, diminution or set-off; and until such time as the principal of, premium, if any, and interest on the Series 2013 Bonds shall have been fully paid, or provision for the payment thereof shall have been made in accordance with the Indenture, the Borrower: (i) will not suspend or discontinue any payments of the Loan; (ii) will perform and observe all of its other agreements contained in this Agreement; and (iii) will not terminate this Agreement for any cause, including, without limiting the generality of the foregoing, failure of the Borrower to complete the Facilities, the occurrence of any acts or circumstances that may constitute failure of consideration, eviction or constructive eviction, destruction of or damage to the Project or the Facilities, commercial frustration of purpose, any change in the tax laws of the United States of America or of the State of Indiana or any political subdivision of either thereof, or any failure of the Issuer or the Trustee to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Agreement or the Indenture. (g) It is understood and agreed that Borrower shall be obligated to continue to pay the amounts specified herein and in the Series 2013 Note whether or not the Facilities are damaged, destroyed or taken in condemnation and that there shall be no abatement of any such payments and other charges by reason thereof. Section 3.3. Maintenance of Corporate Existence. The Borrower agrees that it will maintain its existence, will not dissolve or otherwise dispose of all or substantially all of its assets, and will not consolidate with another entity or permit one or more other entities to consolidate with it; provided, that the Borrower may, without violating the agreement contained in this Section 3.3, consolidate with another entity or permit one or more other entities to consolidate with it, or transfer to another entity organized under the laws of one of the states of the United States of America all or substantially all of its assets as an entirety and thereafter dissolve,provided (a)the Borrower shall be the surviving entity, or (b) the successor, resulting or transferee entity (if other than the Borrower), as the case may be, (i) is organized under the laws of one of the states of the United States, (ii) assumes in writing all of the obligations of the Borrower herein, including the obligations of the Borrower under this Agreement, and (iii) has a net worth, as computed under generally accepted accounting principles, that is no less than the net worth of the Borrower immediately prior to the consolidation, or the Borrower shall have obtained the prior written consent of the Requisite Bondholders (as defined in the Indenture). The consent required in (iii) above shall not be unreasonably withheld, conditioned or delayed by the Requisite Bondholders. Any sale, lease or other disposition of the Facilities or any portion thereof is subject to the conditions of Section 3.12 hereof Section 3.4. Trustee's Right to Perform Borrower's Covenants; Advances. In the event the Borrower shall fail to (i) complete the construction of the Project, or (ii) fail to make any other payment or perform any other act required to be performed hereunder, then and in each -11- such case the Trustee, upon not less than 5 days' prior written notice to the Borrower, may (but shall not be obligated to) remedy such default for the account of the Borrower and make advances for that purpose. No such performance or advance shall operate to release the Borrower from any such default, and any sums so advanced by the Trustee shall be repayable by the Borrower on demand and shall bear interest at the prime rate of interest charged by the Trustee from time to time, from the date of the advance until repaid. Section 3.5. Indemnity. The Borrower will pay, and protect, indemnify and save the State, the Issuer (including members, directors, officials, officers, agents, attorneys and employees thereof), the holders of the Series 2013 Bonds, the Trustee and the Paying Agent harmless from and against all liabilities, losses, damages, costs, expenses (including attorneys' fees and expenses of the Issuer, the Trustee and the Paying Agent), causes of actions, suits, claims, demands and judgments of any nature arising from or relating to: (a) The acceptance or administration of the Indenture by the Trustee thereunder or the performance of the Issuer's duties thereunder, except that if liability arises from such Trustee's gross negligence or willful misconduct in connection with such action taken, such indemnification shall not extend to the Trustee; (b) Violation of any agreement or condition of this Agreement or the Indenture, except by the Issuer or the Trustee; (c) Violation of any contract, agreement or restriction by the Borrower relating to the Project or the Facilities, or a part thereof; (d) Violation of any law, ordinance or regulation arising out of the ownership, occupancy or use of the Project or the Facilities, or a part thereof; (e) Undertaking construction of the Project or the Facilities; (f) Any act, failure to act, or misrepresentation by the Borrower, or any of the Borrower's agents, contractors, servants, employees or licensees; (g) Any act, omitted act, or misrepresentation by the Issuer in connection with or in the performance of any obligation related to the issuance, sale, delivery of(or failure to issue, sell or deliver) the Series 2013 Bonds under this Agreement or the Indenture, or any other agreement executed by or on behalf of the Issuer (provided that nothing in this clause should be construed to indemnify or release the Issuer from any liability which it would otherwise have had arising from the intentional misrepresentation, gross negligence or willful misconduct on the part of the Issuer other than as contemplated in this Agreement); and (h) The authorization, issuance, sale, trading, redemption, or servicing of the Series 2013 Bonds and the provision of any information or certification furnished by the Borrower in connection therewith, concerning the Series 2013 Bonds, the Project and the Facilities, including the Borrower. -12- The foregoing shall not be construed to prohibit the Borrower from pursuing its remedies against either the Issuer or the Trustee for damages to the Borrower resulting from personal injury or property damage caused by the intentional misrepresentation or willful misconduct of either the Issuer or the Trustee. The indemnifications set forth herein shall survive the termination of this Agreement and/or the resignation or removal of the Trustee. Section 3.6. Issuance of Substitute Series 2013 Note. Upon the surrender of any Series 2013 Note, the Borrower will execute and deliver to the holder thereof a new Series 2013 Note dated the date of the Series 2013 Note being surrendered but with appropriate notations thereon to reflect payments of principal and interest thereon; provided, however, that there shall never be outstanding at any one time more than one Series 2013 Note. Section 3.7. Payment of Expenses of Issuance of Series 2013 Bonds. The Borrower agrees to be liable for and pay any filing expenses, trustee's acceptance fees, commitment fees, legal fees, printing expenses and other fees and expenses incurred or to be incurred by or on behalf of the Issuer, the Trustee and the Paying Agent in connection with or as an incident to the issuance and sale of the Series 2013 Bonds. Pursuant to Section 4.3 of the Indenture, the Issuer has authorized the use of certain proceeds of the Series 2013 Bonds to defray the Borrower's obligations under this Section 3.7. Section 3.8. Funding of Indenture Funds; Investments. The Issuer shall deposit with the Trustee all proceeds from the sale of the Series 2013 Bonds in the manner specified in Article 3.1 of the Indenture, and the Trustee shall deposit such proceeds in the manner specified in Article 3.1 of the Indenture. The Borrower and the Issuer agree that all moneys in any fund established by the Indenture may, at the written direction of the Borrower, be invested in Qualified Investments. The Trustee is hereby authorized to trade with itself in the purchase and sale of securities for such investments, and may charge its ordinary and customary fees, for such trades, including cash sweep account fees. The Trustee shall not be liable or responsible for any loss resulting from any such investment. All such investments shall be held by or under the control of the Trustee, and any income resulting therefrom shall be applied in the manner specified in the Indenture. Although the Issuer and the Borrower each recognizes that it may obtain a broker confirmation or written statement containing comparable information at no additional cost, the Issuer and the Borrower hereby agree that confirmations of permitted investments are not required to be issued by the Trustee for each month in which a monthly statement is rendered. No statement need be rendered for any fund or account if no activity occurred in such fund or account during such month. Section 3.9. Other Amounts Payable by the Borrower. Except for Annual Fees paid from TIF Revenues pursuant to Section 4.4 of the Indenture, the Borrower covenants and agrees to pay the following: -13- (a) All reasonable fees, charges and expenses, including agent and counsel fees and expenses, of the Trustee incurred under the Indenture, as and when the same become due. (b) All reasonable costs incident to the payment of the principal of, premium, if any, and interest on the Series 2013 Bonds as the same become due and payable, including all reasonable costs and expenses in connection with the call, redemption and payment of Series 2013 Bonds. (c) An amount sufficient to reimburse the Issuer for all expenses reasonably incurred by the Issuer under this Agreement and in connection with the performance of its obligations under this Agreement or the Indenture. (d) All reasonable expenses incurred in connection with the enforcement of any rights under this Agreement or the Indenture by the Issuer, the Trustee or the holders of the Series 2013 Bonds. (e) All other payments of whatever nature which the Borrower has agreed to pay or assume under the provisions of this Agreement. Notwithstanding anything in this Section 3.9 to the contrary, the Borrower may, without creating an event of default as herein defined, after making the payments required by this Section 3.9, contest in good faith the necessity for any such services, fees, charges or expenses of the Issuer or the Trustee. Section 3.10. Credits on Series 2013 Note. Notwithstanding any provision contained in this Agreement or in the Indenture to the contrary, in addition to any credits on the Series 2013 Note resulting from the payment or prepayment thereof from other sources: (a) subject to the provisions of Article IV hereof with respect to partial prepayment of the Series 2013 Note, any moneys deposited by the Trustee in the Series 2013 Bond Fund for payment on the Series 2013 Bonds (including, without limitation, any Series 2013 Bond proceeds to be used for Capitalized Interest Costs and any TIF Revenues) shall be credited against the obligation of the Borrower to pay the principal, premium, if any, and interest on the Series 2013 Note as the same become due; and (b) the principal amount of Series 2013 Bonds acquired by the Borrower and delivered to the Paying Agent, or acquired by the Paying Agent and canceled, shall be credited against the obligation of the Borrower to pay the principal of the Series 2013 Note evidencing the loan made by the Issuer with the proceeds of the sale of Series 2013 Bonds maturing on the maturity date of the Series 2013 Bonds so acquired and delivered or canceled, including in connection with any mandatory sinking fund payment for Series 2013 Bonds subject to a mandatory sinking fund requirement. Section 3.11. Completion of Project. (a) The Borrower agrees that it will make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions with any other persons, firms or corporations -14- and in general do all things reasonably within its power which may be requisite or proper, all for the acquisition, construction, installation and equipping of the Project and the Facilities and, upon completion, the Borrower will operate and maintain the Facilities in such manner as reasonably within the Borrower's power so as to conform with all applicable zoning, planning, building, environmental and other applicable governmental regulations and so as to be consistent with the Act. The Borrower intends to use and operate the Facilities as a business constituting an economic development facility under the Act while the Series 2013 Bonds are outstanding and knows of no reason why the Facilities will not be so used and operated. In the event the moneys in the Construction Fund should not be sufficient to pay in full the costs to be paid therefrom, the Borrower agrees, for the benefit of the Issuer and the holders of the Series 2013 Bonds and in order to fulfill the purposes of the Act, to complete the construction of the Project and to pay that portion of the costs therefor as may be in excess of the moneys available therefor in the Construction Fund. The Issuer does not make any warranty, either express or implied, that the moneys, which will be paid into the Construction Fund and which under the provisions of this Agreement will be available for payment of the costs of the construction of the Project, will be sufficient to pay all the costs which will be incurred in that connection. The Borrower agrees that if after exhaustion of the moneys in the Construction Fund the Borrower should pay pursuant hereto any portion of the Costs of Construction of the Project, it shall not be entitled to any reimbursement therefor from the Issuer, the Trustee, or the holders of any of the Series 2013 Bonds, nor shall it be entitled to any diminution in or abatement or postponement of the amounts payable hereunder or under the Series 2013 Note. (b) At the request of the Borrower, the Issuer has, in the Indenture, authorized and directed the Trustee to make payments from the Construction Fund to pay the Costs of Construction, or to reimburse the Borrower for any Costs of Construction paid by it. The Borrower agrees to direct such requisitions to the Trustee as may be necessary to effect payments out of the Construction Fund in accordance with this Section 3.11. (c) The completion date of the Project shall be evidenced to the Trustee and the Issuer by a certificate signed by an authorized representative of the Borrower stating that, except for amounts retained by the Trustee at the Borrower's direction for any Costs of Construction not then due and payable or being contested in good faith, (i) the construction of the Project has been completed and any and all labor, services, materials and supplies used in such construction have been paid for and (ii) all other items necessary in connection with the Project have been constructed and all costs and expenses incurred in connection therewith have been paid. Notwithstanding the foregoing, such certificate shall state that it is given without prejudice to any rights against third parties which exist at the date of such certificate or which may subsequently come into being. Upon receipt of such certificate, the Trustee shall in accordance with Section 4.3(c) of the Indenture transfer all moneys then in the Construction Fund (except any amount retained as aforesaid by the Trustee for any Costs of Construction) to the Series 2013 Bond Fund for redemption, as directed by the Issuer. The Trustee shall use any amount transferred to the Series 2013 Bond Fund from the original Loan together with interest thereon to redeem the Series 2013 Bonds as provided in Section 5.1 of the Indenture. -15- Section 3.12. Sale, Substitution, or Lease of Facilities. The Borrower may sell, lease or transfer or otherwise dispose of the Facilities or any portion thereof only if the sale, lease or transfer or other disposition shall not relieve the Borrower from liability for all payments due under this Agreement and the performance of all of the other obligations of this Agreement, except as permitted by Section 3.3 hereof. (End of Article III) -16- ARTICLE IV. PREPAYMENT OF SERIES 2013 NOTE Section 4.1. Optional Prepayment. The Series 2013 Note may be prepaid, in whole or in part, on any date at the principal amount thereof without premium, plus accrued interest to the date fixed for redemption. In order to exercise such option to prepay the Series 2013 Note, in whole or in part, the Borrower must cause funds to be deposited with the Trustee to pay the principal of, premium, if any, and accrued interest on the portion of the Series 2013 Note to be prepaid and the corollary redemption of the Series 2013 Bonds. Any amount so paid which is less than the full unpaid principal amount of the Series 2013 Bonds shall be credited against the installment or installments of principal due on the Series 2013 Note corresponding to the maturity of the Series 2013 Bonds being redeemed, and shall also be a credit against any mandatory sinking fund obligation and the corresponding Series 2013 Note obligation with respect thereto in the sequence in which such mandatory sinking fund obligation becomes due. Section 4.2. Mandatory Prepayment. Redemption of Series 2013 Bonds with proceeds derived under Section 3.10 hereof shall be deemed prepayment of the Series 2013 Note in the same amount as the amount of the Series 2013 Bonds redeemed. Section 4.3. Notice of Prepayment. The Borrower shall give the Trustee not less than fifteen (15) days' prior written notice of any prepayment of the Series 2013 Note pursuant to Sections 4.1 and 4.2 hereof, which notice shall designate the date of prepayment and the amount thereof, indicate the section or subsection pursuant to which prepayment shall occur, and direct the redemption of the Series 2013 Bonds in the amounts corresponding to the Series 2013 Note to be prepaid. (End of Article IV) -17- ARTICLE V. EVENTS OF DEFAULT AND REMEDIES THEREFOR Section 5.1. Events of Default. (a) The occurrence and continuance of any of the following events shall constitute an"event of default"hereunder: (i) failure of the Borrower to pay any installment of interest, principal, or any premiums on the Series 2013 Note when the same shall become due and payable, whether at maturity or upon any date fixed for prepayment or by acceleration or otherwise; (ii) failure of the Borrower to observe and perform any other covenant, condition or provision hereof and to remedy such default within 30 days after notice thereof from the Trustee to the Borrower, unless the Requisite Bondholders shall have consented thereto; (iii) the entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Borrower in an involuntary case under any applicable bankruptcy, insolvency or similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or other similar official) of the Borrower or for any substantial part of its property, or ordering the windup or liquidation of its affairs; or the filing and pendency for thirty days without dismissal of a petition initiating an involuntary case under any other bankruptcy, insolvency or similar law; (iv) the commencement by the Borrower of any voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, whether consent by it to an entry to an order for relief in an involuntary case and under any such law or to the appointment of or the taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of the Borrower or of any substantial part of its property, or the making by it of any general assignment for the benefit of creditors, or the failure of the Borrower generally to pay its debts as such debts become due, or the taking of corporate action by the Borrower in furtherance of any of the foregoing; or (v) Any event of default under Section 7.1 of the Indenture. (b) During the occurrence and continuance of any event of default hereunder, the Trustee, as assignee of the Issuer pursuant to the Indenture, shall have the rights and remedies hereinafter set forth, in addition to any other remedies herein or by law provided. (c) Upon the occurrence of an event of default described in this Section 5.1: (i) Acceleration. The Trustee may, and shall if directed by Requisite Bondholders, by written notice to the Borrower, declare the principal of the Series 2013 Note (if not then due and payable), and the interest accrued thereon to be due and payable immediately, and upon any such declaration the principal of the Series 2013 Note and the -18- interest accrued on the Series 2013 Note shall become and be immediately due and payable, anything in the Series 2013 Note or in this Agreement contained to the contrary notwithstanding. The Issuer's obligation to pay TIF Revenues shall not be subject to acceleration. (ii) Right to Bring Suit, Etc. The Trustee, with or without entry, personally or by attorney, may in its discretion, proceed to protect and enforce its rights by a suit or suits in equity or at law, whether for damages or for the specific performance of any covenant or agreement contained in the Series 2013 Note or this Agreement or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy, as the Trustee shall deem most effectual to protect and enforce any of its rights or duties hereunder; provided, however, that all costs incurred by the Trustee and the Issuer under this Article shall be paid to the Issuer and the Trustee by the Borrower on demand. (iii) Waiver of Events of Default. If after any event of default occurs and prior to the Trustee's exercise of any of the remedies provided in this Agreement, the Borrower has completely cured such default, then in every case such default will be waived, rescinded and annulled by the Trustee by written notice given to the Borrower. In addition, if the acceleration of the maturity of the Series 2013 Bonds has been annulled and rescinded in accordance with the provisions of the Indenture, then the acceleration of all loan payments and any other outstanding indebtedness under this Agreement will likewise be annulled and rescinded. No such waiver, annulment or rescission will affect any subsequent default or impair any right or remedy consequent thereon. Section 5.2. Trustee May Enforce Demand. In case the Borrower shall have failed to pay such principal and interest and other amounts upon demand, the Trustee, in its own name, may institute such actions or proceedings at law or in equity for the collection of the amounts so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Borrower and collect the moneys adjudged or decreed to be payable out of the property of the Borrower wherever situated, in the manner provided by law. The Trustee shall, if permitted by law, be entitled to recover judgment as aforesaid either before or after or during the pendency of any proceedings for the enforcement of the lien of this Agreement; and the right of the Trustee to recover such judgment shall not be affected by the exercise of any other right, power or remedy for the enforcement of the provisions of this Agreement. Any moneys thus collected by the Trustee under this Section shall be applied by the Trustee as follows: FIRST: to the payment of all reasonable advances by the Issuer or the Trustee with interest at the prime rate of interest charged by the Trustee from time to time, and all reasonable expenses and disbursements. -19- SECOND: to the payment of the amounts then due and unpaid upon the Series 2013 Note in respect of which such money shall have been collected, ratably and without preference or priority of any kind, according to the amounts due and payable upon the Series 2013 Note, upon presentation of the Series 2013 Note and the notation thereon of such payment, if partly paid, and upon surrender thereon if fully paid. Section 5.3. Remedies Cumulative. No remedy herein conferred upon or reserved to the Trustee is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Section 5.4. Delay or Omission Not a Waiver. No delay or omission of the Trustee to exercise any right or power accruing upon any event of default shall impair any such right or power, or shall be construed to be a waiver of any such event of default or an acquiescence therein; and every power and remedy given by this Agreement to the Trustee may be exercised from time to time and as often as may be deemed expedient by the Trustee. Section 5.5. Waiver of Extension, Appraisement or Stay Laws. To the extent permitted by law, the Borrower will not during the continuance of any event of default hereunder insist upon, or plead, or in any manner whatever claim or take any benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants and terms of performance of this Agreement; and the Borrower hereby expressly waives all benefits or advantage of any such law or laws and covenants not to hinder, delay or impede the execution of any power herein granted or delegated to the Trustee, but to suffer and permit the execution of every power as though no such law or laws had been made or enacted. Section 5.6. Remedies Subject to Provisions of Law. All rights, remedies and powers provided by this Article may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law in the premises, and all the provisions of this Article V are intended to be subject to all applicable mandatory provisions of law which may be controlling in the premises and to be limited to the extent necessary so that they will not render this Agreement invalid or unenforceable under the provisions of any applicable law. (End of Article V) -20- ARTICLE VI. IMMUNITY Section 6.1. Immunity. No covenant or agreement contained in the Series 2013 Bonds, this Agreement or the Indenture shall be deemed to be a covenant or agreement of any member of the Issuer or the Redevelopment Commission or of any officer or employee of the Issuer, the Redevelopment Commission or their legislative and fiscal bodies in his or her individual capacity, and neither the members of the Issuer or the Redevelopment Commission, nor any officer or employee of the Issuer executing the Series 2013 Bonds, shall be liable personally on the Series 2013 Bonds or be subject to any personal liability or accountability by reason of the issuance of the Series 2013 Bonds. (End of Article VI) -21- ARTICLE VII. SUPPLEMENTS AND AMENDMENTS TO THIS AGREEMENT Section 7.1. Supplements and Amendments to this Agreement. Subject to the provisions of Article X of the Indenture,the Borrower and the Issuer may from time to time enter into such supplements and amendments to this Agreement as to them may seem necessary or desirable to effectuate the purposes or intent hereof. (End of Article VII) -22- ARTICLE VIII. DEFEASANCE Section 8.1. Defeasance. If the Borrower shall pay and discharge or provide, in a manner satisfactory to the Trustee, for the payment and discharge of the whole amount of the Series 2013 Note at the time outstanding, and shall pay or cause to be paid all other sums payable hereunder, or shall make arrangements satisfactory to the Trustee for such payment and discharge, and if provision shall have been made for the satisfaction and discharge of the Indenture as provided therein, then and in that case, all property, rights and interest hereby conveyed or assigned or pledged shall revert to the Borrower, and the estate, right, title and interest of the Trustee therein shall thereupon cease, terminate and become void; and this Agreement, and the covenants of the Borrower contained herein shall be discharged, and the Trustee in such case on demand of the Borrower and at its cost and expense, shall execute and deliver to the Borrower a proper instrument or proper instruments acknowledging the satisfaction and termination of this Agreement, and shall convey, assign and transfer or cause to be conveyed, assigned or transferred, and shall deliver (except for any TIF Revenues) or cause to be delivered, to the Borrower, all property, including money, then held by the Trustee together with the Series 2013 Note marked paid or cancelled. (End of Article VIII) -23- ARTICLE IX. MISCELLANEOUS PROVISIONS Section 9.1. Agreement for Benefit of Parties Hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon, or to give to, any person other than the parties hereto,their successors and assigns, and the holder of the Series 2013 Note, any right, remedy or claim under or by reason of this Agreement or any covenant, condition or stipulation hereof; and the covenants, stipulations and agreements in this Agreement contained are and shall be for the sole and exclusive benefit of the parties hereto, their successors and assigns, the Trustee and the holder of the Series 2013 Note. Section 9.2. Severability. In case any one or more of the provisions contained in this Agreement or in the Series 2013 Note shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. Section 9.3. Limitation on Interest. No provisions of this Agreement or of the Series 2013 Note shall require the payment or permit the collection of interest in excess of the maximum permitted by law. If any excess of interest in such respect is herein or in the Series 2013 Note provided for, or shall be adjudicated to be so provided for herein or in the Series 2013 Note, neither the Borrower nor its successors or assigns shall be obligated to pay such interest in excess of the amount permitted by law, and the right to demand the payment of any such excess shall be and hereby is waived, and this provision shall control any provisions of this Agreement and the Series 2013 Note inconsistent with this provision. Section 9.4. Addresses for Notice and Demands. All notices, demands, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, postage prepaid, with proper address as indicated below. The Issuer, the Borrower, the Trustee and the Paying Agent may, by written notice given by each to the others, designate any address or addresses to which notices, demands, certificates or other communications to them shall be sent when required as contemplated by this Agreement. Until otherwise provided by the respective parties, all notices, demands, certificates and communications to each of them shall be addressed as follows: To the Issuer: City of Carmel, Indiana One Civic Square Carmel, Indiana 46032 Attn: Clerk-Treasurer Telephone No.: (317) 571-2414 FAX No.: (317) 571-2410 -24- To the Borrower: Falcon Nest II LLC Attn: Telephone No.: Fax No.: With a copy to: Telephone: To the Trustee: Regions Bank Attn: Corporate Trust Services One Indiana Square, Suite 115 Indianapolis, Indiana 46204 Telephone No: (317) 221-6275 Fax No.: (317) 221-6010 Section 9.5. Successors and Assigns. Whenever in this Agreement any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included and all the covenants, promises and agreements in this Agreement contained by or on behalf of the Borrower, or by or on behalf of the Issuer, shall bind and inure to the benefit of the respective successors and assigns, whether so expressed or not; provided, however, that the Borrower may not assign its rights or obligations under this Agreement without the consent of the holders of the Series 2013 Bonds, which may be withheld in their absolute discretion, unless Section 3.3 of this Agreement has been complied with. Section 9.6. Counterparts. This Agreement is being executed in any number of counterparts, each of which is an original and all of which are identical. Each counterpart of this Agreement is to be deemed an original hereof and all counterparts collectively are to be deemed but one instrument. Section 9.7. Governing Law. It is the intention of the parties hereto that this Agreement and the rights and obligations of the parties hereunder and the Series 2013 Note and the rights and obligations of the parties thereunder, shall be governed by and construed and enforced in accordance with, the laws of the State. (End of Article IX) -25- IN WITNESS WHEREOF, the Issuer and the Borrower have caused this Agreement to be executed in their respective names, and the Issuer and the Borrower have caused their corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the date first above written. FALCON NEST II LLC, an Indiana limited liability company By: CITY OF CARMEL, INDIANA By James Brainard, Mayor (SEAL) Attest: Diana L. Cordray, Clerk-Treasurer EXHIBIT A PROJECT DESCRIPTION The Project to be financed by the Series 2013 Bonds consists of the acquisition, construction and installation of infrastructure improvements in the Legacy Project Economic Development Area. A-1 EXHIBIT B FALCON NEST LLC, NOTE, SERIES 2013 FOR VALUE RECEIVED, the undersigned, FALCON NEST LLC (the "Borrower"), a limited liability company organized and existing in good standing under the laws of the State of Indiana, hereby promises to pay to the order of the City of Carmel, Indiana (the "Issuer"), in immediately available funds, the principal sum of$12,000,000, or so much thereof as shall have been advanced by the Issuer to the Borrower, and interest thereon, during the term of the Agreement dated as of November 1, 2013 (the "Agreement"), between the Borrower and the Issuer, commencing one business day prior to January 15, 2014, and on the business day prior to each January 15 and July 15 thereafter, a sum which will equal the principal and interest which will become due on the next day on the Series 2013 Bonds (as hereinafter defined), all subject to the credits described in the Agreement and to the presence of other available money for such installment in the Series 2013 Bond Fund under the Trust Indenture (including, without limitation, any TIF Revenues (as defined in said Trust Indenture)) dated as of November 1, 2013 (the "Trust Indenture"), between the Issuer and Regions Bank, as trustee (the "Trustee"). Payments of both principal and interest are to be endorsed to the Trustee and are to be made directly to the Trustee for the account of the Issuer pursuant to such endorsement. Such endorsement is to be made as security for the payment of the bonds designated "City of Carmel, Indiana, Taxable Economic Development Revenue Bonds, Series 2013 (Legacy Project)" (the "Series 2013 Bonds"). All of the terms, conditions and provisions of the Indenture are, by this reference thereto, incorporated herein as a part of this Note. This Note is issued pursuant to the Agreement and is entitled to the benefits and is subject to the conditions thereof. The obligations of Borrower to make the payments required hereunder shall be absolute and unconditional without any defense or right of set-off, counterclaim or recoupment by reason of any default by Issuer under the Agreement or under any other agreement between Borrower and Issuer or out of any indebtedness or liability at any time owing to the Borrower by the Issuer or for any other reason. The principal of this Note is subject to prepayment prior to maturity in the manner stated in the Agreement. In certain events and in the manner set forth in the Agreement, the entire principal amount of this Note and the interest accrued thereon may be declared to be due and payable. In certain events and in the manner set forth in the Agreement, the Borrower shall be obligated to pay additional amounts. The Borrower hereby unconditionally waives diligence, presentment, protest, notice of dishonor and notice of default of the payment of any amount at any time payable to the Issuer under or in connection with this Note. All amounts payable hereunder are payable with reasonable attorneys fees and costs of collection and without relief from valuation and appraisement laws. B-1 In any case where the date of payment hereunder shall be in the City of Indianapolis, Indiana, a Saturday, Sunday or a legal holiday or a day on which banking institutions are authorized by law to close, then such payment shall be made on the next preceding business day with the same force and effect as if made on the date of payment hereunder. All terms used in this Note which are defined in the Agreement shall have the meanings assigned to them in the Agreement. IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and attested by its duly authorized officer all as of , 2013. Issue Date: , 2013 FALCON NEST LLC, an Indiana limited liability company By: Printed: Title: ATTEST: By: Printed: Title: B-2 ENDORSEMENT Pay, without recourse, to Regions Bank, as trustee under the within-mention Trust Indenture. CITY OF CARMEL, INDIANA By James Brainard, Mayor (SEAL) Attest: Diana L. Cordray, Clerk-Treasurer INDS01 RCS 1423350v2 B-3 TRUST INDENTURE BETWEEN CITY OF CARMEL, INDIANA, as Issuer AND REGIONS BANK, as Trustee Not to Exceed $12,000,000 CITY OF CARMEL, INDIANA, TAXABLE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2013 (LEGACY PROJECT) Dated as of November 1, 2013 TABLE OF CONTENTS Page ARTICLE I. DEFINITIONS AND EXHIBITS 4 Section 1.1. Terms Defined 4 Section 1.2. Rules of Interpretation 7 Section 1.3. Exhibits 7 ARTICLE II. THE SERIES 2013 BONDS 9 Section 2.1. Authorized Amount of Series 2013 Bonds 9 Section 2.2. Issuance of Series 2013 Bonds 9 Section 2.3. Payment on Series 2013 Bonds 9 Section 2.4. Execution; Limited Obligation 10 Section 2.5. Authentication 11 Section 2.6. Form of Series 2013 Bonds 11 Section 2.7. Delivery of Series 2013 Bonds 19 Section 2.8. Mutilated, Lost, Stolen, or Destroyed Series 2013 Bonds 19 Section 2.9. Registration and Exchange of Series 2013 Bonds; Persons Treated as Owners 20 Section 2.10. Book Entry System 20 ARTICLE III. Section 3.1 APPLICATION OF SERIES 2013 BOND PROCEEDS 24 ARTICLE IV. REVENUE AND FUNDS 25 Section 4.1. Source of Payment of Series 2013 Bonds 25 Section 4.2. Series 2013 Bond Fund 25 Section 4.3. Construction Fund 26 Section 4.4. TIF Revenues 27 Section 4.5. Trust Funds 27 Section 4.6. Investment 28 ARTICLE V. REDEMPTION OF SERIES 2013 BONDS BEFORE MATURITY 29 Section 5.1. Redemption Dates and Prices 29 Section 5.2. Notice of Redemption 29 Section 5.3. Cancellation 29 Section 5.4. Redemption Payments 29 -i- Section 5.5. Partial Redemption of Series 2013 Bonds 30 ARTICLE VI. GENERAL COVENANTS 31 Section 6.1. Payment of Principal and Interest 31 Section 6.2. Performance of Covenants 31 Section 6.3. Ownership; Instruments of Further Assurance 32 Section 6.4. Filing of Indenture, Agreement and Security Instruments 32 Section 6.5. List of Bondholders 32 Section 6.6. Rights Under Agreement 32 Section 6.7. Investment of Funds 33 Section 6.8. Non-presentment of Series 2013 Bonds 33 Section 6.9. Direction of Bondholders 33 ARTICLE VII. DEFAULTS AND REMEDIES 34 Section 7.1. Events of Default 34 Section 7.2. Acceleration 34 Section 7.3. Remedies; Rights of Bondholders 34 Section 7.4. Right of Bondholders to Direct Proceedings 35 Section 7.5. Application of Moneys 35 Section 7.6. Remedies Vested In Trustee 36 Section 7.7. Rights and Remedies of Bondholders 36 Section 7.8. Termination of Proceedings 37 Section 7.9. Waivers of Events of Default 37 ARTICLE VIII. THE TRUSTEE AND PAYING AGENT 39 Section 8.1. Acceptance of the Trusts 39 Section 8.2. Fees, Charges and Expenses of Trustee and Paying Agent 42 Section 8.3. Notice to Bondholders if Default Occurs 42 Section 8.4. Intervention by Trustee 42 Section 8.5. Successor Trustee 42 Section 8.6. Resignation by the Trustee 42 Section 8.7. Removal of the Trustee 43 Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary Trustee 43 Section 8.9. Concerning Any Successor Trustees 43 Section 8.10. Trustee Protected in Relying Upon Resolutions, etc 43 Section 8.11. Appointment of Paying Agent and Registrar; Resignation or Removal of Paying Agent 43 ARTICLE IX. SUPPLEMENTAL INDENTURES 45 Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders 45 Section 9.2. Supplemental Indentures Requiring Consent of Bondholders 45 -ii- ARTICLE X. AMENDMENTS TO THE AGREEMENT 47 Section 10.1. Amendments, etc., to Agreement Not Requiring Consent of Bondholders47 Section 10.2. Amendments, etc., to Agreement Requiring Consent of Bondholders 47 Section 10.3. No Amendment May Alter Series 2013 Note 47 ARTICLE XI. MISCELLANEOUS 48 Section 11.1. Satisfaction and Discharge 48 Section 11.2. Defeasance of Series 2013 Bonds 48 Section 11.3. Cancellation of Series 2013 Bonds 49 Section 11.4. Application of Trust Money 50 Section 11.5. Consents, etc., of Bondholders 50 Section 11.6. Limitation of Rights 50 Section 11.7. Severability 51 Section 11.8. Notices 51 Section 11.9. Counterparts 51 Section 11.10. Applicable Law 51 Section 11.11. Immunity of Officers and Directors 51 Section 11.12. Holidays 52 (End of Table of Contents) -iii- TRUST INDENTURE THIS TRUST INDENTURE (the "Indenture") dated as of the first day of November, 2013, between the CITY OF CARMEL, INDIANA (the "Issuer"), a municipal corporation duly organized and existing under the laws of the State of Indiana, and REGIONS BANK, an Alabama banking corporation, having a designated corporate trust office in the City of Indianapolis, Indiana, as trustee (the "Trustee"), WITNESSETH: WHEREAS, Indiana Code 36-7-11.9 and Indiana Code 36-7-12, each as amended (collectively, the "Act"), authorizes and empowers the Issuer to issue revenue bonds and to lend the proceeds therefrom for the purpose of financing economic development facilities and vests such Issuer with powers that may be necessary to enable it to accomplish such purposes; and WHEREAS, in accordance with the provisions of the Act, the Issuer has induced Falcon Nest II LLC, an Indiana limited liability company (the "Borrower"), to proceed with the Project (as defined herein), as more particularly described in Exhibit A attached hereto, in the jurisdiction of the Issuer by offering to issue its Taxable Economic Development Revenue Bonds, Series 2013 (Legacy Project), in the aggregate principal amount of not to exceed Twelve Million Dollars ($12,000,000) (the "Series 2013 Bonds") pursuant to this Indenture and to loan the proceeds thereof to the Borrower pursuant to the Agreement, dated as of November 1, 2013 (the "Agreement"), for the purpose of paying a portion of the costs of the Project, including capitalized interest; and WHEREAS, the execution and delivery of this Indenture and the issuance of revenue bonds under the Act as herein provided have been in all respects duly and validly authorized by proceedings duly passed on and approved by the Issuer; and WHEREAS, after giving notice in accordance with the Act and Indiana Code 5-3-1, as amended, the Carmel Economic Development Commission (the "Economic Development Commission") held a public hearing on behalf of itself and the Issuer and adopted a resolution finding that the Project and the proposed financing thereof will (i) create additional employment opportunities in the jurisdiction of the Issuer; (ii) benefit the health, prosperity, economic stability and general welfare of the Issuer and its citizens; and (iii) comply with the purposes and provisions of the Act; and WHEREAS, the Act provides that such Series 2013 Bonds may be secured by a trust indenture between the Issuer and a corporate trustee; and WHEREAS, Indiana Code 36-7-14, as amended, provides that a redevelopment commission of a city may pledge certain incremental property taxes to pay, in whole or in part, amounts due on the Series 2013 Bonds; and WHEREAS, the City of Carmel Redevelopment Commission (the "Redevelopment Commission") has, by resolution, dedicated and pledged to the Issuer the TIF Revenues (as hereinafter defined) for the payment of the principal and interest on the Series 2013 Bonds, thereby offsetting the loan repayment relating to the Series 2013 Bonds, as provided herein; and WHEREAS, the Agreement provides for the repayment by the Borrower of the loan of the proceeds of the Series 2013 Bonds to the extent that TIF Revenues are not sufficient and the granting of certain security by the Borrower to secure the repayment of such Loan by the Borrower and further provides for the Borrower's repayment obligation to be evidenced by the Borrower's Note, Series 2013 ("Series 2013 Note") in substantially the form attached thereto as Exhibit B; and WHEREAS, pursuant to this Indenture, the Issuer will endorse the Series 2013 Note without recourse and assign certain of its rights under the Agreement as security for the Series 2013 Bonds, which are payable solely and only out of the payments to be made by the Borrower with respect to the Series 2013 Note, after taking into account TIF Revenues, except to the extent paid out of Series 2013 Bond proceeds; and WHEREAS, the execution and delivery of this Indenture and the issuance of the Series 2013 Bonds hereunder have been in all respects duly and validly authorized by an ordinance duly passed and approved by the Common Council of the Issuer; NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to secure the payment of the principal of and interest and premium, if any, on the Series 2013 Bonds to be issued under this Indenture according to their tenor, purport and effect, and in order to secure the performance and observance of all the covenants and conditions herein and in the Series 2013 Bonds contained, and in order to declare the terms and conditions upon which the Series 2013 Bonds are issued, authenticated, delivered, secured and accepted by all persons who shall from time to time be or become holders thereof, and for and in consideration of the mutual covenants herein contained, of the acceptance by the Trustee of the trust hereby created, and of the purchase and acceptance of the Series 2013 Bonds by the holders thereof, the Issuer has executed and delivered this Indenture and by these presents does hereby convey, grant, assign, pledge and grant a security interest in, unto the Trustee, its successor or successors and its or their assigns forever, with power of sale, all and singular, the property hereinafter described ("Trust Estate"): GRANTING CLAUSE DIVISION I The Series 2013 Note, which has been endorsed by the Issuer to the order of the Trustee and pledged by the Issuer to the Trustee, and all sums payable in respect of the indebtedness evidenced thereby; DIVISION II All right, title and interest of the Issuer in and to the TIF Revenues (such pledge to be effective as set forth in Indiana Code 5-1-14-4, as amended, and Indiana Code 36-7-14-39, as amended, without filing or recording of this Indenture or any other instrument), the Agreement -2- (except the rights reserved to the Issuer) and all moneys and the Qualified Investments held by the Trustee from time to time in the Funds and Accounts created hereunder; TO HAVE AND TO HOLD the same unto the Trustee, and its successor or successors and its or their assigns forever; IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth, to secure the payment of the Series 2013 Bonds to be issued hereunder, and premium, if any, payable upon redemption or prepayment thereof, and the interest payable thereon, and to secure also the observance and performance of all the terms, provisions, covenants and conditions of this Indenture, and for the benefit and security of all and singular the holders of all Series 2013 Bonds issued hereunder, and it is hereby mutually covenanted and agreed that the terms and conditions upon which the Series 2013 Bonds are to be issued, authenticated, delivered, secured and accepted by all persons who shall from time to time be or become the holders thereof, and the trusts and conditions upon which the pledged moneys and revenues are to be held and disbursed, are as follows: (The remainder of this page intentionally left blank) -3- ARTICLE I. DEFINITIONS AND EXHIBITS Section 1.1. Terms Defined. In addition to the words and terms elsewhere defined in this Indenture, the following words and terms as used in this Indenture shall have the following meanings unless the context or use indicates another or different meaning or intent: "Accounts" means the accounts created pursuant to Article IV hereof. "Additional Parity TIF Revenue Pledges" means any addition pledges of TIF Revenues issued on a parity with the Series 2013 Bonds in accordance with the provisions of the resolutions of the Redevelopment Commission authorizing the pledge of TIF Revenues for the benefit of the holders of the Series 2013 Bonds. "Annual Fees" means annual Trustee Fees and annual fees related to monitoring Tax Increment. "Area" means the Legacy Project Economic Development Area and the allocation area that is coterminous therewith, as established and expanded by the Redevelopment Commission. "Authorized Representative"means any officer of the Borrower. "Bondholder"means a holder of a Series 2013 Bond. "Book Entry System" means the book entry system described in Section 2.10 of this Indenture. "Borrower" means Falcon Nest II LLC, a limited liability company duly organized and validly existing under the laws of the State of Indiana. "Costs of Construction" means the following categories of costs of providing for an economic development project under the Act: (i) the "Bond Issuance Costs," namely the costs, fees and expenses incurred or to be incurred by the Issuer, the Redevelopment Commission and the Borrower in connection with the issuance and sale of the Series 2013 Bonds, including placement or other financing fees (including applicable counsel fees), the fees and disbursements of bond counsel, fees of the Issuer's and Redevelopment Commission's financial advisor, the initial annual fee and acceptance fee of the Trustee, application fees and expenses, publication costs, the filing and recording fees in connection with any filings or recording necessary under this Indenture or to perfect the lien thereof, the out-of-pocket costs of the Issuer, the fees and disbursements of counsel to the Borrower, the fees and disbursements of the Borrower's accountants, the fees and disbursements of counsel to the Issuer and Redevelopment Commission, the fees and disbursements of counsel to the purchasers of the Series 2013 Bonds, the costs of preparing or printing the Series 2013 Bonds and the -4- documentation supporting the issuance of the Series 2013 Bonds, the costs of reproducing documents, and any other costs of a similar nature reasonably incurred; (ii) the cost of insurance of all kinds that may be required or necessary in connection with the construction of the Project; (iii) all costs and expenses of site preparation and engineering services, including the costs of Issuer, Redevelopment Commission, or Borrower for test borings, surveys, estimates, plans and specifications and preliminary investigation therefor, and for supervising construction, as well as for the performance of all other duties required by or consequent upon the proper construction of the Project; (iv) all costs and expenses which the Issuer, Redevelopment Commission, or the Borrower shall be required to pay under the terms of any contract or contracts (including the architectural and engineering, development, and legal services with respect thereto) for the construction of the Project; and (v) any sums required to reimburse the Issuer or the Borrower for advances made by either of them subsequent to the date of the reimbursement resolution adopted by the Common Council of the Issuer for any of the above items or for any other costs incurred and for work done by either of them which are properly chargeable to the Project. "Event of Default" means those events of default specified in and defined by Section 7.1 hereof. "Fiscal Year" shall mean a period of twelve consecutive months constituting the fiscal year of the Borrower commencing on the first day of January of any year and ending on the last day of December of such year, both inclusive, or such other period as hereafter may be established from time to time for budgeting and accounting purposes by the Borrower or by the governing body of any successor entity to the Borrower. "Funds"means the funds created pursuant to Article IV hereof "Indenture" means this instrument as originally executed or as it may from time to time be amended or supplemented pursuant to Article IX hereof "Interest Payment Date" with respect to the Series 2013 Bonds means each January 15 and July 15, commencing January 15, 2014. "Interest Rate"means percent ( %)per annum. "Issuer" means the City of Carmel, Indiana, a municipal corporation organized and validly existing under the laws of the State of Indiana or any successor to its rights and obligations under the Agreement and this Indenture. -5- "Agreement"means the Agreement dated as of November 1, 2013, between the Borrower and the Issuer, and all amendments and supplements thereto. "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel who may be an employee of or counsel to the Borrower and who shall be satisfactory to the Trustee in its reasonable discretion. "Outstanding" or "Series 2013 Bonds outstanding" means all Series 2013 Bonds which have been duly authenticated and delivered by the Trustee under this Indenture, except: (a) Series 2013 Bonds canceled after purchase in the open market or because of payment at, or redemption prior to, maturity; (b) Series 2013 Bonds for the redemption of which cash or investments (but only to the extent that the full faith and credit of the United States of America are pledged to the timely payment thereof) shall have been theretofore deposited with the Trustee (whether upon or prior to the maturity or redemption date of any such Series 2013 Bonds); provided, that if such Series 2013 Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given or arrangements satisfactory to the Trustee shall have been made therefor, or waiver of such notice satisfactory in form to the Trustee shall have been filed with the Trustee; and (c) Series 2013 Bonds in lieu of which others have been authenticated under Section 2.8. "Paying Agent" means Regions Bank, and any successor paying agent or co-paying agent. "Project" means certain road and utility infrastructure improvements in, serving or benefiting the Area, as more particularly described in Exhibit A attached hereto. "Purchaser" means Falcon Nest II LLC. "Qualified Investments" shall have the meaning assigned in the Agreement. "Record Date"means the first day of the month preceding any Interest Payment Date. "Redevelopment Commission"means the City of Cannel Redevelopment Commission. "Requisite Bondholders" means the holders of sixty-six and two-thirds percent (662/3%) in aggregate principal amount of Series 2013 Bonds. "Series 2013 Bonds" means the City of Carmel, Indiana, Taxable Economic Development Revenue Bonds, Series 2013 (Legacy Project), in the aggregate principal amount of not to exceed Twelve Million Dollars ($12,000,000). "Series 2013 Note" shall have the meaning assigned in the Agreement. -6- "Tax Increment" means all real property tax proceeds attributable to the assessed valuation within the Area as of each assessment date in excess of the base assessed value. The incremental assessed value is multiplied by the current property tax rate (per $100 assessed value). "TIF Revenues" means Tax Increment received by the Redevelopment Commission and pledged to the Issuer pursuant to a resolution adopted on April 22, 2009, by the Redevelopment Commission, consisting of an amount of Tax Increment equal to 100% of the debt service due on the Series 2013 Bonds, plus Annual Fees, for a term not to exceed the term of the Series 2013 Bonds. "Trust Estate" means the funds and accounts, Series 2013 Note, TIF Revenues and other assets described in the Granting Clauses of this Indenture. "Trustee"means Regions Bank, and any successor trustee or co-trustee. "Trustee Fees" means all reasonable fees of the Trustee relating to the Series 2013 Bonds. Section 1.2. Rules of Interpretation. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (a) "This Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended pursuant to the applicable provisions hereof. (b) All references in this instrument to designated "Articles," "Sections" and other subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as originally executed. The words "herein," "hereof' and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. (c) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular and the singular as well as the plural. (d) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles as consistently applied. (e) Any terms not defined herein but defined in the Agreement shall have the same meaning herein. (f) The terms defined elsewhere in this Indenture shall have the meanings herein prescribed for them. Section 1.3. Exhibits. The following Exhibits are attached to and by reference made a part of this Indenture: Exhibit A: Project Description Exhibit B: Costs of Issuance -7- (End of Article I) -8- ARTICLE II. THE SERIES 2013 BONDS Section 2.1. Authorized Amount of Series 2013 Bonds. No Series 2013 Bonds may be issued under the provisions of this Indenture except in accordance with this Article. The principal amount of the Series 2013 Bonds (other than Series 2013 Bonds issued in substitution therefor pursuant to Section 2.8 hereof) that may be issued is hereby expressly limited to Twelve Million Dollars ($12,000,000). Section 2.2. Issuance of Series 2013 Bonds. The Series 2013 Bonds shall be designated "City of Carmel, Indiana, Taxable Economic Development Revenue Bonds, Series 2013 (Legacy Project)." The Series 2013 Bonds shall be originally issuable in fully registered form without coupons in denominations of$100,000 and any $1 integral multiples in excess thereof and shall be lettered and numbered 2013R-1 and upward. Interest on the Series 2013 Bonds shall be paid to the owners of such Series 2013 Bonds (determined as of the close of business of the Record Date next preceding each Interest Payment Date) at the registered addresses of such owners as they shall appear on the registration books of the Trustee notwithstanding the cancellation of any such Series 2013 Bonds upon any exchange or transfer thereof subsequent to the Record Date and prior to such Interest Payment Date, except that, if and to the extent that there shall be a default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the owners in whose name any such Series 2013 Bonds (or any Series 2013 Bond issued upon transfer or exchange thereof) are registered at the close of business of the Record Date next preceding the date of payment of such defaulted interest. Payment of interest to all Bondholders shall be by check drawn on the main office of the Paying Agent and mailed to such Bondholder one business day prior to each Interest Payment Date. A new record date may be established by the Trustee for the payment of defaulted interest. The Series 2013 Bonds shall be dated as of the date of their delivery. Interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest on the Series 2013 Bonds shall be payable on each January 15 and July 15, commencing on January 15, 2014. The Series 2013 Bonds shall bear interest at the Interest Rate from the Interest Payment Date next preceding the date of authentication thereof, unless such date of authentication shall be subsequent to a Record Date, in which case they shall bear interest from the Interest Payment Date with respect to such Record Date; provided, however, that if, as shown by the records of the Trustee, interest on the Series 2013 Bonds shall be in default, Series 2013 Bonds issued in exchange for Series 2013 Bonds surrendered for transfer or exchange shall bear interest from the date to which interest has been paid in full on the Series 2013 Bonds or, if no interest has been paid on the Series 2013 Bonds, from the date of issuance and delivery of the Series 2013 Bonds. Series 2013 Bonds authenticated on or prior to January 1, 2014, shall bear interest from the date of delivery of the Series 2013 Bonds. The Series 2013 Bonds shall mature on January 15, 2038. Section 2.3. Payment on Series 2013 Bonds. The principal of and interest on the Series 2013 Bonds shall be payable in any coin or currency of the United States of America which, at -9- the respective dates of payment thereof, is legal tender for the payment of public and private debts. The final payments on the Series 2013 Bonds shall be payable at the principal corporate trust office of the Trustee. All other payments on the Series 2013 Bonds shall be made to the person appearing on the Series 2013 Bond registration books of the Trustee as the registered owner of the Series 2013 Bonds by check mailed to the registered owner thereof as shown on the registration books of the Trustee, or, if payment is made to a depository, by wire transfer of immediately available funds on the interest payment date. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Trustee shall be instructed to wire transfer payments by 1:00 p.m. (New York City time) so that such payments are received at the depository by 2:30 p.m. (New York City time). Section 2.4. Execution; Limited Obligation. The Series 2013 Bonds shall be executed on behalf of the Issuer with the manual or facsimile signature of its Mayor and attested with the manual or facsimile signature of its Clerk-Treasurer and shall have impressed or printed thereon the corporate seal of the Issuer. Such facsimiles shall have the same force and effect as if such officer had manually signed each of the Series 2013 Bonds. If any officer whose signature or facsimile signature shall appear on the Series 2013 Bonds shall cease to be such officer before the delivery of such Series 2013 Bonds, such signature or such facsimile shall, nevertheless, be valid and sufficient for all purposes, the same as if he had remained in office until delivery. The Series 2013 Bonds, and the interest payable thereon, do not and shall not represent or constitute a debt of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof within the meaning of the provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and credit of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof. The Series 2013 Bonds, as to both principal and interest, are not an obligation or liability of the State of Indiana, or of any political subdivision or taxing authority thereof, but are a special limited obligation of the Issuer and are payable solely and only from the Trust Estate, consisting of funds and accounts held under this Indenture, the TIF Revenues and payments to be made on the Series 2013 Note issued under the Agreement pledged and assigned for their payment in accordance with this Indenture. Neither the faith and credit nor the taxing power of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof is pledged to the payment of the principal of, premium, if any, or interest on the Series 2013 Bonds. The Series 2013 Bonds do not grant the owners or holders thereof any right to have the Issuer, the State of Indiana or its General Assembly, or any political subdivision or taxing authority of the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of, premium, if any, or interest on the Series 2013 Bonds. No covenant or agreement contained in the Series 2013 Bonds or this Indenture shall be deemed to be a covenant or agreement of the Redevelopment Commission, the Economic Development Commission, the Issuer or of any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Economic Development Commission or the Issuer in his or her individual capacity, and neither the Redevelopment Commission, the Economic Development Commission, the Issuer nor any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Economic Development Commission or the Issuer executing the Series 2013 Bonds shall be liable -10- personally on the Series 2013 Bonds or be subject to any personal liability or accountability by reason of the issuance of the Series 2013 Bonds. Section 2.5. Authentication. No Series 2013 Bond shall be valid or obligatory for any purpose or entitled to any security or benefit under this Indenture unless and until the certificate of authentication on such Series 2013 Bond substantially in the form herein below set forth shall have been duly executed by the Trustee, and such executed certificate of the Trustee upon any such Series 2013 Bond shall be conclusive evidence that such Series 2013 Bond has been authenticated and delivered under this Indenture. The Trustee's certificate of authentication on any Series 2013 Bond shall be deemed to have been executed by it if signed by an authorized officer of the Trustee, but it shall not be necessary that the same officer sign the certificate of authentication on all of the Series 2013 Bonds issued hereunder. Section 2.6. Form of Series 2013 Bonds. The Series 2013 Bonds and the Trustee's certificate of authentication to be endorsed thereon shall be substantially in the forms set forth below with such appropriate variations, omissions and insertions as are permitted or required by this Indenture or deemed necessary by the Trustee. (Form of Series 2013 Bond) [Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.] UNITED STATES OF AMERICA STATE OF INDIANA COUNTY OF HAMILTON CITY OF CARMEL, INDIANA, TAXALBE ECONOMIC DEVELOPMENT REVENUE BOND, SERIES 2013 (LEGACY PROJECT) No. 2013R- INTEREST MATURITY ORIGINAL AUTHENTICATION RATE DATE DATE DATE January 15, 20_ PRINCIPAL AMOUNT: NOT TO EXCEED TWELVE MILLION DOLLARS ($12,000,000) -11- REGISTERED OWNER: STAR FINANCIAL BANK The City of Carmel, Indiana (the "Issuer"), a municipal corporation duly organized and existing under the laws of the State of Indiana, for value received, hereby promises to pay in lawful money of the United States of America to the Registered Owner listed above, but solely from the payments on the Series 2013 Note (as hereinafter defined) and TIF Revenues (as defined in the hereinafter-defined Indenture), pledged and assigned for the payment hereof (subject to any Additional Parity TIF Revenue Pledges), the Principal Amount set forth above or such lesser amount as has been advanced and remains unpaid on the Maturity Date specified above, unless this Series 2013 Bond shall have previously been called for redemption and payment of the redemption price made or provided for or unless payments shall be accelerated as provided in the Indenture, and to pay interest on the unpaid principal amount hereof in like money, but solely from those payments and TIF Revenues, at the Interest Rate specified above per annum payable on January 15, 2014, and on each January 15 and July 15 thereafter (each an "Interest Payment Date") until the Principal Amount advanced is paid in full. The proceeds of this Bond may be advanced from time to time at the request of the Borrower. As advances are made in the form of approved expenditures on the Project, the unpaid principal amount of this Bond shall be the total amounts advanced by the Registered Owner from time to time, less any prior redemption of the principal amount due, as set forth on Exhibit A hereto. The principal amounts advanced shall be evidenced by the execution by the Borrower of a Disbursement Request in form and substance satisfactory to the Issuer and Registered Owner. The principal and premium, if any, of this Series 2013 Bond are payable at the office of Regions Bank, as Trustee, in the City of Indianapolis, Indiana, or at the principal office of any successor trustee or paying agent, or, if payment is made to a depository, by wire transfer of immediately available funds on the payment date. This Series 2013 Bond is one of the Issuer's Economic Development Revenue Bonds, Series 2013 (Legacy Project) (herein the "Series 2013 Bonds") which are being issued pursuant to Ordinance No. D-2156-13, adopted by the Common Council of the Issuer on November 18, 2013 (the "Bond Ordinance") and under the hereinafter described Indenture in the aggregate principal amount of not to exceed Twelve Million Dollars ($12,000,000). The Series 2013 Bonds are being issued for the purpose of providing funds to finance costs of construction of certain infrastructure improvements in, serving or benefiting the Area (as defined in the Indenture) (collectively, the "Project"), by lending such funds to Falcon Nest II LLC (the "Borrower"), pursuant to the Agreement dated as of November 1, 2013 (the "Agreement"), between the Borrower and the Issuer, which prescribes the terms and conditions under which the Borrower shall repay such loan and pursuant to which the Borrower will execute and deliver to the Issuer its Series 2013 Note (the "Series 2013 Note") in a principal amount equal to the principal amount of such Series 2013 Bonds in order to evidence such loan. The Series 2013 Bonds are issued under and entitled to the security of a Trust Indenture dated as of November 1, 2013 (the "Indenture") duly executed and delivered by the Issuer to Regions Bank, as Trustee (the term "Trustee" where used herein referring to the Trustee or its -12- successors), pursuant to which Indenture the TIF Revenues (as defined in the Indenture) and the Series 2013 Note and all rights of the Issuer under the Agreement, except certain rights to payment for expenses, indemnity rights and rights to perform certain discretionary acts as set forth in the Agreement, are pledged and assigned by the Issuer to the Trustee as security for the Series 2013 Bonds (subject to any Additional Parity TIF Revenue Pledges). THE OWNER OF THIS SERIES 2013 BOND, BY ACCEPTANCE OF THIS SERIES 2013 BOND, HEREBY AGREES TO ALL OF THE TERMS AND PROVISIONS IN THE INDENTURE AND THIS SERIES 2013 BOND AND ACKNOWLEDGES THAT: 1. It is an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the "1933 Act")), purchasing Series 2013 Bonds for its own account or for the account of another such institutional "accredited investor", and it is acquiring the Series 2013 Bonds for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the 1933 Act. It has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of its investment in the Series 2013 Bonds and invest in or purchase securities similar to the Series 2013 Bonds in the normal course of its business, and it and any investor accounts for which it is acting are able to bear the economic risk of their or the Issuer's investment for an indefinite period of time. It confirms that neither the Issuer nor any person acting on its behalf has offered to sell the Series 2013 Bonds by, and that it has not been made aware of the offering of the Series 2013 Bonds by, any form of general solicitation or general advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or a broadcast over television or radio. 2. It is familiar with the Issuer and the Borrower; it has received such information concerning the Issuer and the Borrower, the Series 2013 Bonds and the TIF Revenues (as defined in the Indenture) as it deems to be necessary in connection with investment in the Series 2013 Bonds. It has received, read and commented upon copies of the Indenture and the Agreement. Prior to the purchase of the Series 2013 Bonds, it has been provided with the opportunity to ask questions of and receive answers from the representatives of the Issuer and the Borrower concerning the terms and conditions of the Series 2013 Bonds, the tax status of the Series 2013 Bonds, legal opinions and enforceability of remedies and the security therefor, and to obtain any additional information needed in order to verify the accuracy of the information obtained to the extent that the Issuer and the Borrower possess such information or can acquire it without unreasonable effort or expense. It is not relying on Barnes & Thornburg LLP or H.J. Umbaugh & Associates for information concerning the financial status of the Issuer or the Borrower or the ability of the Issuer or the Borrower to honor their respective financial obligations or other covenants under the Series 2013 Bonds, the Indenture or the Agreement. It understands that the projection of TIF Revenues prepared in connection with the issuance of the Series 2013 Bonds has been based on estimates of the investment in real property provided by the Borrower. 3. It is acquiring the Series 2013 Bonds for its own account with no present intent to resell; and will not sell, convey, pledge or otherwise transfer the Series 2013 Bonds without prior compliance with applicable registration and disclosure requirements of state and federal securities laws. -13- 4. It understands that the Series 2013 Bonds have not been registered under the 1933 Act and, unless so registered, may not be sold without registration under the 1933 Act or an exemption therefrom. It is aware that it may transfer or sell the Series 2013 Bonds only if the Trustee shall first have received (i) a satisfactory opinion of counsel that the sale or transfer will not violate the 1933 Act, the Securities Exchange Act of 1934 and the Investment Company Act of 1940 and regulations issued pursuant to such Acts, or (ii) a no-action letter of the staff of the Securities and Exchange Commission that the staff will recommend that no action be taken with respect to such sale or transfer, or (iii) a certificate stating that it reasonably believes that the transferee is a "Qualified Institutional Buyer" within the meaning of Section (a) of Rule 144A ("Rule 144A") promulgated by the Securities and Exchange Commission pursuant to the 1933 Act and has informed the transferee of the transfer restrictions applicable to the Series 2013 Bonds and that the transferor may be relying upon Rule 144A with respect to the transfer of the Series 2013 Bonds. 5. It understands that the sale or transfer of the Series 2013 Bonds in principal amounts less than $100,000 is prohibited other than through a primary offering. 6. It has investigated the security for the Series 2013 Bonds, including the availability of TIF Revenues, to its satisfaction, and it understands that the Series 2013 Bonds are payable from loan repayments from the Borrower under the Agreement, offset by available TIF Revenues (subject to any Additional Parity TIF Revenue Pledges). It further understands that the Issuer does not have the power or the authority to levy a tax to pay the principal of or interest on the Series 2013 Bonds. In addition, it understands that there is no assurance that, subsequent to the issuance of the Series 2013 Bonds, the reassessment of property in the State of Indiana or any currently proposed or subsequently enacted, promulgated or court-ordered changes in the law relating to the assessment or taxation of real property in the State of Indiana, will not materially adversely affect the amount of TIF Revenues available to be collected and pledged for payment of the Series 2013 Bonds. 7. It recognizes that the opinions it has received express the professional judgment of the attorneys participating in the transaction as to the legal issues addressed herein. It also recognizes that by rendering such opinions, the attorneys do not become insurers or guarantors of that expression of professional judgment, of the transaction opined upon, or of the future performance of parties to such transaction, nor does the rendering of the opinions guarantee the outcome of any legal dispute that may arise out of the transaction. 8. It understands that interest on the Series 2013 Bonds is taxable for federal income tax purposes. 9. It understands that the Issuer's pledge of TIF Revenues is on a parity with any Additional Parity TIF Revenue Pledges. The Series 2013 Bonds are issuable in registered form without coupons in the denominations of $100,000 and any $1 integral in excess thereof The sale or transfer of this Series 2013 Bond in principal amounts of less than $100,000 is prohibited other than through a primary offering. This Series 2013 Bond is transferable by the registered holder hereof in person -14- or by its attorney duly authorized in writing at the payment office of the Trustee (Regions Bank, Attention: Corporate Trust), but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture and upon surrender and cancellation of this Series 2013 Bond. Upon such transfer a new registered Series 2013 Bond will be issued to the transferee in exchange therefor. The Issuer, the Trustee and the Paying Agent may deem and treat the Registered Owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and premium, if any, hereon and interest due hereon and for all other purposes, and neither the Issuer nor the Trustee nor the Paying Agent shall be affected by any notice to the contrary. If sufficient funds are on deposit in the Bond Fund pursuant to Sections 4.1 and 4.2 of the Agreement, the Series 2013 Bonds shall be subject to redemption prior to maturity at the option of the Issuer and at the direction of the Borrower, on any date, upon thirty (30) days' notice, in whole or in part in such order of maturity as the Issuer shall direct and by lot within maturities on any date, from any moneys made available for that purpose, at face value without premium, plus accrued interest to the date fixed for redemption. The Series 2013 Bonds shall be redeemed upon the occurrence of certain events described in Section 5.1(c) of the Agreement, if sufficient funds for such redemption are on deposit with the Trustee. When called for redemption as a result of any such event, the Series 2013 Bonds shall be subject to redemption by the Issuer in whole on any date at a redemption price of 100% of the principal amount of the Series 2013 Bonds being redeemed plus accrued interest to the redemption date and without premium. If any of the Series 2013 Bonds are called for redemption as aforesaid, notice thereof identifying the Series 2013 Bonds to be redeemed will be given by mailing a copy of the redemption notice by first class mail not less than thirty (30) days nor more than sixty (60) days prior to the date fixed for redemption to the Registered Owner of the Series 2013 Bonds to be redeemed at the address shown on the registration books; provided, however, that failure to give such notice by mailing, or any defect therein with respect to any registered Series 2013 Bond, shall not affect the validity of any proceedings for the redemption of other Series 2013 Bonds. All Series 2013 Bonds so called for redemption will cease to bear interest on the specified redemption date, provided funds for their redemption are on deposit at the place of payment at that time, and shall no longer be protected by the Indenture and shall not be deemed to be outstanding under the provisions of the Indenture. This Series 2013 Bond shall be initially issued in a Book Entry System (as defined in the Indenture). The provisions of this Series 2013 Bond and of the Indenture are subject in all respects to the provisions of the Letter of Representations between the Issuer and The Depository Trust Company, or any substitute agreement, effecting such Book Entry System. This Series 2013 Bond is transferable by the Registered Owner hereof at the payment office of the Trustee upon surrender and cancellation of this Series 2013 Bond and on -15- presentation of a duly executed written instrument of transfer, and thereupon a new Series 2013 Bond or Series 2013 Bonds of the same aggregate principal amount and maturity and in authorized denominations will be issued to the transferee or transferees in exchange therefor. The Series 2013 Bonds, and the interest payable thereon, do not and shall not represent or constitute a debt of the Issuer within the meaning of the provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and credit of the Issuer. The Series 2013 Bonds, as to both principal and interest, are not an obligation or liability of the State of Indiana, or of any political subdivision or taxing authority thereof, but are a special limited obligation of the Issuer payable solely and only from the trust estate, consisting of funds and accounts held under the Indenture, the TIF Revenues and payments to be made on the Series 2013 Note issued under the Agreement pledged and assigned for their payment in accordance with the Indenture ("Trust Estate"). Neither the faith and credit nor the taxing power of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof is pledged to the payment of the principal of, premium, if any, or interest on this Series 2013 Bond. The Series 2013 Bonds do not grant the owners or holders thereof any right to have the Issuer, the State of Indiana or its General Assembly, or any political subdivision or taxing authority of the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of, premium, if any, or interest on the Series 2013 Bonds. No covenant or agreement contained in the Series 2013 Bonds or the Indenture shall be deemed to be a covenant or agreement of the City of Carmel Redevelopment Commission ("Redevelopment Commission"), the Carmel Economic Development Commission, the Issuer or of any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Carmel Economic Development Commission or the Issuer in his or her individual capacity, and neither the Redevelopment Commission, the Carmel Economic Development Commission, the Issuer nor any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Carmel Economic Development Commission or the Issuer executing the Series 2013 Bonds shall be liable personally on the Series 2013 Bonds or be subject to any personal liability or accountability by reason of the issuance of the Series 2013 Bonds. The holder of this Series 2013 Bond shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any event of default under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all the Series 2013 Bonds issued under the Indenture and then outstanding may become or may be declared due and payable before the stated maturity thereof, together with interest accrued thereon. Modifications or alterations of the Indenture, or of any supplements thereto, may be made to the extent and in the circumstances permitted by the Indenture. The Issuer's obligation to pay TIF Revenues shall not be subject to acceleration. It is hereby certified that all conditions, acts and things required to exist, happen and be performed under the laws of the State of Indiana and under the Indenture precedent to and in the issuance of this Series 2013 Bond, exist, have happened and have been performed, and that the -16- issuance, authentication and delivery of this Series 2013 Bond have been duly authorized by the Issuer. This Series 2013 Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Indenture until the certificate of authentication hereon shall have been duly executed by the Trustee. IN WITNESS WHEREOF, the City of Carmel, Indiana, in Hamilton County, has caused this Series 2013 Bond to be executed in its name and on its behalf by the manual or facsimile signature of its Mayor and its corporate seal to be hereunto affixed manually or by facsimile and attested to by the manual or facsimile signature of its Clerk-Treasurer all as of the Original Date set forth above. CITY OF CARMEL, INDIANA By James Brainard, Mayor (Seal) Attest: Diana L. Cordray, Clerk-Treasurer (FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION) This Series 2013 Bond is one of the Series 2013 Bonds described in the within-mentioned Indenture. REGIONS BANK, as Trustee By Authorized Officer ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Print or Typewrite Name and Address) the within Series 2013 Bond and all rights, title and interest thereon, and hereby irrevocably constitutes and -17- appoints attorney to transfer the within Series 2013 Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: SIGNATURE GUARANTEED: NOTICE: Signature(s) must be guaranteed by NOTICE: The signature to this assignment an eligible guarantor institution participating in must correspond with the name of the a Securities Transfer Association recognized registered owner as it appears upon the face of signature guarantee program. the within Series 2013 Bond in every particular, without alteration or enlargement or any change whatever. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: UNIF TRAN MIN ACT -- Custodian (Cust) (Minor) under Uniform Transfers to Minors Act (State) TEN COM -- as tenants in common JT TEN -- as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list. (End of Series 2013 Bond Form) Exhibit A SCHEDULE OF OUTSTANDING BALANCE OF CITY OF CARMEL,INDIANA ECONOMIC DEVELOPMENT -18- REVENUE BONDS,SERIES 2013 (LEGACY PROJECT) Amount of Acknowledgment of Advance or Amount of Outstanding Acknowledgment Holder of Note(if Date Credit Payment Balance of City other than Borrower) Section 2.7. Delivery of Series 2013 Bonds. Upon the execution and delivery of this Indenture, the Issuer shall execute and deliver to the Trustee the Series 2013 Bonds in the aggregate principal amount of not to exceed Twelve Million Dollars ($12,000,000). The Trustee shall authenticate such Series 2013 Bonds and deliver them to the purchasers thereof upon receipt of: (a) A copy, duly certified by the Clerk-Treasurer of the Issuer, of the ordinance adopted and approved by the Issuer authorizing the execution and delivery of the Agreement and this Indenture and the issuance of the Series 2013 Bonds. (b) A copy, duly certified by the Secretary of the Redevelopment Commission, of the resolution adopted and approved by the Redevelopment Commission pledging the TIF Revenues to the payment of the Series 2013 Bonds. (c) Executed counterparts of the Agreement and this Indenture. (d) The Series 2013 Note in the same principal amount as the principal amount of the Series 2013 Bonds, duly executed by the Borrower and endorsed by the Issuer to the order of the Trustee. (e) A written request of the Issuer to the Trustee requesting the Trustee to authenticate, or cause to be authenticated, and deliver the Series 2013 Bonds in the principal amount of not to exceed Twelve Million Dollars ($12,000,000) to the purchasers thereof. (f) Such other documents as shall be required by the Purchaser. The proceeds of the Series 2013 Bonds shall be paid over to the Trustee and deposited to the credit of various Funds as provided under Article III hereof. Section 2.8. Mutilated, Lost, Stolen, or Destroyed Series 2013 Bonds. If any Series 2013 Bond is mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee may authenticate a new Series 2013 Bond of like date, maturity and denomination as that mutilated, lost, stolen or destroyed; provided that, in the case of any mutilated Series 2013 Bond, such mutilated Series 2013 Bond shall first be surrendered to the Issuer, and in the case of any lost, stolen or destroyed Series 2013 Bond, there shall be first furnished to the Trustee evidence of -19- such loss, theft or destruction satisfactory to the Trustee, together with indemnity satisfactory to it. If any such Series 2013 Bond shall have matured, instead of issuing a duplicate Series 2013 Bond, the Issuer may pay the same without surrender thereof; provided, however, that in the case of a lost, stolen or destroyed Series 2013 Bond, there shall be first furnished to the Trustee evidence of such loss, theft or destruction satisfactory to the Trustee, together with indemnity satisfactory to it. The Trustee may charge the holder or owner of such Series 2013 Bond with its reasonable fees and expenses in this connection. Any Series 2013 Bond issued pursuant to this Section 2.8 shall be deemed part of the original series of Series 2013 Bonds in respect of which it was issued and an original additional contractual obligation of the Issuer. Section 2.9. Registration and Exchange of Series 2013 Bonds; Persons Treated as Owners. The Issuer shall cause books for the registration and for the transfer of the Series 2013 Bonds as provided in this Indenture to be kept by the Trustee, which is hereby constituted and appointed the registrar of the Issuer (the "Registrar"). Upon surrender for transfer of any fully registered Series 2013 Bond at the principal office of the Trustee, duly endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Trustee and duly executed by, the registered owner or his attorney duly authorized in writing, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new fully registered Series 2013 Bond or Series 2013 Bonds of the same series and maturity for a like aggregate principal amount. The execution by the Issuer of any fully registered Series 2013 Bond without coupons of any denomination shall constitute full and due authorization of such denomination, and the Trustee shall thereby be authorized to authenticate and deliver such registered Series 2013 Bond. The Trustee shall not be required to transfer or exchange any fully registered Series 2013 Bond during the period between the Record Date and any interest payment date of such Series 2013 Bond, nor to transfer or exchange any Series 2013 Bond after the mailing of notice calling such Series 2013 Bond for redemption has been made, nor during a period of fifteen (15) days next preceding mailing of a notice of redemption of any Series 2013 Bonds. As to any fully registered Series 2013 Bond, the person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal or interest thereon shall be made only to or upon the order of the registered owner thereof or its legal representative, but such registration may be changed as hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2013 Bond to the extent of the sum or sums so paid. Section 2.10. Book Entry System. The Issuer has determined that the Series 2013 Bonds may be held by a central depository system pursuant to an agreement between the Issuer and The Depository Trust Company, with transfers of the Series 2013 Bonds to be effected by book entry on the books of the central depository system. The Series 2013 Bonds shall be initially issued in the form of a separate single authenticated fully registered bond for the aggregate principal amount of each separate maturity of the Series 2013 Bonds. Upon initial issuance, the ownership of such Series 2013 Bonds shall be registered in the register kept by the Registrar in the name of Cede & Co., as nominee of The Depository Trust Company. -20- With respect to the Series 2013 Bonds registered in the register kept by the Paying Agent in the name of Cede & Co., as nominee of The Depository Trust Company, the Issuer and the Paying Agent shall have no responsibility or obligation to any other holders or owners (including any beneficial owner ("Beneficial Owner")) of the Series 2013 Bonds with respect to (i) the accuracy of the records of The Depository Trust Company, Cede & Co., or any Beneficial Owner with respect to ownership questions, (ii) the delivery to any Bondholder (including any Beneficial Owner) or any other person, other than The Depository Trust Company, of any notice with respect to the Series 2013 Bonds, including any notice of redemption, or (iii) the payment to any Bondholder (including any Beneficial Owner) or any other person, other than The Depository Trust Company, of any amount with respect to the principal of, or premium, if any, or interest on the Series 2013 Bonds, except as otherwise provided herein. No person other than The Depository Trust Company shall receive an authenticated Series 2013 Bond evidencing an obligation of the Issuer to make payments of the principal of and premium, if any, and interest on the Series 2013 Bonds pursuant to this Indenture. The Issuer and the Registrar and Paying Agent may treat as, and deem The Depository Trust Company or Cede & Co. to be, the absolute holder of each of the Series 2013 Bonds for the purpose of(i)payment of the principal of and premium, if any, and interest on such Series 2013 Bonds; (ii) giving notices of redemption and other notices permitted to be given to Bondholders with respect to such Series 2013 Bonds; (iii) registering transfers with respect to such Series 2013 Bonds; (iv) obtaining any consent or other action required or permitted to be taken by Bondholders; (v) voting; and (vi) for all other purposes whatsoever. The Paying Agent shall pay all principal of and premium, if any, and interest on the Series 2013 Bonds only to or upon the order of The Depository Trust Company, and all such payments shall be valid and effective fully to satisfy and discharge the Issuer's and the Paying Agent's obligations with respect to principal of and premium, if any, and interest on the Series 2013 Bonds to the extent of the sum or sums so paid. Upon delivery by The Depository Trust Company to the Issuer of written notice to the effect that The Depository Trust Company has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions herein with respect to consents, the words " Cede & Co." in this Indenture shall refer to such new nominee of The Depository Trust Company. Notwithstanding any other provision hereof to the contrary, so long as any Series 2013 Bond is registered in the name of Cede & Co. as nominee of The Depository Trust Company, all payments with respect to the principal of and premium, if any, and interest on such Series 2013 Bond and all notices with respect to such Series 2013 Bond shall be made and given to The Depository Trust Company as provided in a representation letter from the Issuer to The Depository Trust Company. Upon receipt by the Issuer of written notice from The Depository Trust Company to the effect that The Depository Trust Company is unable or unwilling to discharge its responsibilities and if no substitute depository can be found which is willing and able to undertake the functions of The Depository Trust Company hereunder upon reasonable and customary terms, then the Series 2013 Bonds shall no longer be restricted to being registered in the register of the Issuer kept by the Registrar in the name of Cede & Co., as nominee of The Depository Trust Company, but may be registered in whatever name or names the Bondholders transferring or exchanging Series 2013 Bonds shall designate, in accordance with the provisions of this Indenture. -21- If the Issuer determines that it is in the best interest of the Bondholders that they be able to obtain certificates for the Series 2013 Bonds, the Issuer may notify The Depository Trust Company and the Registrar, whereupon The Depository Trust Company will notify the Beneficial Owners of the availability through The Depository Trust Company of certificates for the Series 2013 Bonds. In such event, the Registrar shall prepare, authenticate, transfer and exchange certificates for the Series 2013 Bonds as requested by The Depository Trust Company and any Beneficial Owners in appropriate amounts, and whenever The Depository Trust Company requests the Issuer and the Registrar to do so, the Registrar and the Issuer will cooperate with The Depository Trust Company by taking appropriate action after reasonable notice (i)to make available one or more separate certificates evidencing the fully registered Series 2013 Bonds of any Beneficial Owner's Depository Trust Company account or (ii)to arrange for another securities depository to maintain custody of certificates for and evidencing the Series 2013 Bonds. If the Series 2013 Bonds shall no longer be restricted to being registered in the name of a depository trust company, the Registrar shall cause the Series 2013 Bonds to be printed in blank in such number as the Registrar shall determine to be necessary or customary; provided, however, that the Registrar shall not be required to have such Series 2013 Bonds printed until it shall have received from the Issuer indemnification for all costs and expenses associated with such printing. In connection with any notice or other communication to be provided to Bondholders by the Issuer or the Registrar with respect to any consent or other action to be taken by Bondholders, the Issuer or the Registrar, as the case may be, shall establish a record date for such consent or other action and give The Depository Trust Company notice of such record date not less than fifteen (15) calendar days in advance of such record date to the extent possible. So long as the Series 2013 Bonds are registered in the name of The Depository Trust Company or Cede & Co. or any substitute nominee, the Issuer and the Registrar and Paying Agent shall be entitled to request and to rely upon a certificate or other written representation from the Beneficial Owners of the Series 2013 Bonds or from The Depository Trust Company on behalf of such Beneficial Owners stating the amount of their respective beneficial ownership interests in the Series 2013 Bonds and setting forth the consent, advice, direction, demand or vote of the Beneficial Owners as of a record date selected by the Registrar and The Depository Trust Company, to the same extent as if such consent, advice, direction, demand or vote were made by the Bondholders for purposes of this Indenture, and the Issuer and the Registrar and Paying Agent shall for such purposes treat the Beneficial Owners as the Bondholders. Along with any such certificate or representation, the Registrar may request The Depository Trust Company to deliver, or cause to be delivered, to the Registrar a list of all Beneficial Owners of the Series 2013 Bonds, together with the dollar amount of each Beneficial Owner's interest in the Series 2013 Bonds and the current addresses of such Beneficial Owners. If the Book Entry System is no longer in effect, registered owners of Series 2013 Bonds may, upon surrender thereof at the principal corporate trust office of the Trustee with a written instrument of transfer satisfactory to the Trustee, exchange a Series 2013 Bond or Series 2013 Bonds for a Series 2013 Bond or Series 2013 Bonds of equal aggregate principal amount of the same maturity and interest rate of any authorized denominations. For every exchange or transfer -22- of Series 2013 Bonds, the Trustee may make a charge sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer, which shall be paid by the person requesting such exchange or transfer as a condition precedent to the exercise of the privilege of making such exchange or transfer. The cost of preparing each new Series 2013 Bond upon each exchange or transfer, and any other expenses of the Trustee incurred in connection therewith (except any applicable tax, fee or other governmental charge) shall be paid by the Issuer. The Trustee shall not be obligated to make any transfer or exchange of any Series 2013 Bond called for redemption within thirty days of the redemption date. (End of Article II) -23- ARTICLE III. APPLICATION OF SERIES 2013 BOND PROCEEDS Section 3.1. Deposit of Funds. The Issuer shall deposit with the Trustee into the Construction Account of the Construction Fund all proceeds from the sale of the Series 2013 Bonds. $ shall be deposited in the Construction Account as the initial draw on the Series 2013 Bonds. The Trustee shall obtain each subsequent advance from the owner of the Series 2013 Bonds upon presentation of a request for an advance or evidence of payments made for expenses paid for Project Costs, listing the payments to be made by the Trustee and signed by the Borrower. The Trustee shall deposit each subsequent advance in the Construction Fund and disburse it as provided in Section 4.3. (End of Article III) -24- ARTICLE IV. REVENUE AND FUNDS Section 4.1. Source of Payment of Series 2013 Bonds. The Series 2013 Bonds herein authorized and all payments to be made by the Issuer hereunder are not general obligations of the Issuer but are limited obligations payable solely from the Trust Estate as authorized by the Act and as provided herein. No covenant or agreement contained in the Series 2013 Bonds or this Indenture shall be deemed to be a covenant or agreement of the Issuer or of any member, director, officer, agent, attorney or employee of the Issuer in his or her individual capacity, and neither the Issuer nor any member, director, officer, agent, attorney, or employee of the Issuer executing the Series 2013 Bonds shall be liable personally on the Series 2013 Bonds or be subject to any personal liability or accountability by reason of the issuance of the Series 2013 Bonds. Section 4.2. Series 2013 Bond Fund. The Trustee shall establish and maintain, so long as any of the Series 2013 Bonds are outstanding, a separate fund to be known as the "Series 2013 Bond Fund." Money in the Series 2013 Bond Fund shall be applied as provided in this Section 4.2. There shall be deposited into the Series 2013 Bond Fund, as and when received, (a) TIF Revenues in an amount not to exceed the combined payments due on the Series 2013 Bonds during the bond year ending on the next succeeding January 15, plus the Annual Fees; (b) all payments received pursuant to the Series 2013 Note; (c) all payments specified in Section 3.2 of the Agreement; (d) any amount remaining in the Construction Fund to be transferred to the Series 2013 Bond Fund pursuant to this Indenture upon completion of the Project, and any amount remaining in the Construction Fund to be transferred to the Series 2013 Bond Fund pursuant to this Indenture upon acceleration of the maturity of the Series 2013 Bonds; (e) all interest and other income derived from investments of Series 2013 Bond Fund moneys as provided herein; and (f) all other moneys received by the Trustee under and pursuant to any of the provisions of the Agreement which are required, or which are accompanied by directions that such moneys are to be paid, into the Series 2013 Bond Fund. The Issuer hereby covenants and agrees that so long as any of the Series 2013 Bonds issued hereunder are outstanding, it will deposit, or cause to be paid to the Trustee for deposit, into the Series 2013 Bond Fund for its account, sufficient sums from revenues and receipts derived from the TIF Revenues, the Series 2013 Note and the Agreement, promptly to meet and pay the principal of, premium, if any, and interest on the Series 2013 Bonds as the same become due and payable, plus the Annual Fees. Nothing herein should be construed as requiring the Issuer to deposit or cause to be paid to the Trustee for deposit into the Series 2013 Bond Fund funds from any source other than receipts derived from the TIF Revenues, the Series 2013 Note and the Agreement. The Clerk-Treasurer of the Issuer shall set aside immediately upon receipt the Tax Increment into the Issuer's allocation fund for the Area as created by IC 36-7-14-39 and transfer the TIF Revenues to the Trustee as set forth in Section 4.4 hereof, subject to any Additional Parity TIF Revenue Pledges. The Trustee is hereby directed to deposit the TIF Revenues into the Series 2013 Bond Fund in the manner prescribed in this Section 4.2 and in Section 4.4 hereof. -25- Moneys in the Series 2013 Bond Fund shall be used by the Trustee to pay interest, premium, if any, and principal on the Series 2013 Bonds as they become due at maturity, redemption or upon acceleration, plus Annual Fees. The Trustee shall transmit such funds to the Paying Agent for the Series 2013 Bonds in sufficient time to ensure that such payment will be made as it becomes due. Section 4.3. Construction Fund. The Issuer shall establish with the Trustee a separate fund to be known as the Construction Fund, to the credit of which the deposits are to be made as required by Section 3.1 hereof. The Construction Fund shall consist of the Construction Account. (a) The Issuer shall use $ from the initial draw to pay costs of issuance set forth in Exhibit B, which shall be wire transferred at closing to the entities listed as authorized by the Mayor and the Clerk-Treasurer. Execution of this Indenture shall be authorization for these payments. (b) On the issue date of the Series 2013 Bonds, the Issuer shall deposit $ from the proceeds of the Series 2013 Bonds into the Construction Account. Except as set forth in subsections (b) and (c) of this Section 4.3, each subsequent advance shall be paid out from time to time by the Trustee to or upon the order of the Issuer and the Borrower to pay, or as reimbursement to the Borrower for payment made, for additional costs of issuance of the Series 2013 Bonds or for other Costs of Construction, upon receipt by the Trustee of the written request signed by the Authorized Representative of the Borrower: (1) stating that the costs of an aggregate amount set forth in such written request have been made or incurred and were necessary for the construction of the Project and were made or incurred in accordance with the construction contracts, plans and specifications, or purchase contracts therefor then in effect or that the amounts set forth in such written request are for allowable Costs of Construction of the Project; (2) stating that the amount paid or to be paid, as set forth in such written request, is reasonable and represents a part of the amount payable for the Costs of Construction of the Project all in accordance with the cost budget; and that such payment was not paid in advance of the time, if any, fixed for payment and was made in accordance with the terms of any contracts applicable thereto and in accordance with usual and customary practice under existing conditions; (3) stating that no part of said costs was included in any written request previously filed with the Trustee under the provisions hereof; (4) stating that such costs are appropriate for the expenditure of proceeds of the Series 2013 Bonds under the Act; and (5) stating a recap of vendors and the amount paid. The Trustee shall rely fully on any such written request delivered pursuant to this Section 4.3(b) and shall not be required to make any investigation in connection therewith. -26- (c) The Issuer shall deliver to the Trustee within fifteen (15) days of completion of the Project a certificate of the Authorized Representative of the Borrower: (i) stating the date that the Project was completed; and (ii) stating that it has made such investigation of such sources of information as are deemed by him to be necessary, including pertinent records of the Issuer, and that it is of the opinion that the Project has been fully paid for, and that no claim or claims exist against the Borrower or the Issuer or against the properties of either out of which a lien based on furnishing labor or material for the Project exists or might ripen; provided, however, that there may be excepted from the foregoing statement any claim or claims out of which a lien exists or might ripen if the Borrower intends to contest such claim or claims, in which event such claim or claims shall be described; provided, further, however, that it shall be stated that funds are on deposit in the Construction Fund sufficient to make payment of the full amount which might in any event be payable in order to satisfy such claim or claims. If such certificate shall state that there is a claim or claims in controversy which create or might ripen into a lien, there shall be filed with the Issuer and the Trustee a certificate of the Borrower when and as such claim or claims shall have been fully paid. If, after payment by the Trustee of all orders theretofore tendered to the Trustee under the provisions of subparagraph (b) of this Section 4.3 and after receipt of the statement mentioned in subparagraph (c)(i) and (ii) of this Section 4.3, there shall remain any balance of moneys in the Construction Fund, the Trustee shall transfer all moneys then in the Construction Fund (except any disputed claims described in the completion certificate required in Section 4.3(c) hereof) to the Series 2013 Bond Fund. The Trustee, as directed in writing by the Issuer at the request of the Borrower, shall use any amount transferred to the Series 2013 Bond Fund to prepay the Series 2013 Note at the earliest redemption date. Section 4.4. TIF Revenues. On or before each January 1 and July 1, commencing July 1, 2014, the Issuer shall transfer to the Series 2013 Bond Fund, all of the TIF Revenues for the payment of the Series 2013 Bonds, plus the Annual Fees. The transfers of TIF Revenues to the Series 2013 Bond Fund shall serve as a credit against the Borrower's obligations under the Series 2013 Note and the Agreement with respect to the Series 2013 Bonds. On or before each January 5 and July 5, the Trustee shall notify the Borrower in writing of the amount of the credit and the amount of any balance due from the Borrower on the next payment date. Any excess TIF Revenues remaining after the payment of interest due shall be used to pay principal on the Bonds, and shall reduce the principal amount of the Bonds accordingly. Section 4.5. Trust Funds. All moneys and securities received by the Trustee under the provisions of this Indenture shall be trust funds under the terms hereof and shall not be subject to -27- lien or attachment of any creditor of the Issuer or of the Borrower. Such moneys shall be held in trust and applied in accordance with the provisions of this Indenture. Section 4.6. Investment. Moneys on deposit in the Funds established in this Article IV hereof shall be invested as provided in Section 6.7 hereof. (End of Article IV) -28- ARTICLE V. REDEMPTION OF SERIES 2013 BONDS BEFORE MATURITY Section 5.1. Redemption Dates and Prices. (a) The Series 2013 Bonds are subject to optional redemption by the Issuer, prior to maturity, at the option of the Borrower, on any date, in whole or in part, in such order of maturity as the Borrower shall direct and by lot within maturities, at face value, without premium, plus accrued interest to the date fixed for redemption. (b) Mandatory Redemption. If funds are on deposit in the Bond Fund for redemption of Series 2013 Bonds pursuant to Sections 4.1 and 4.2 of the Agreement, the Series 2013 Bonds shall be subject to redemption by the Issuer on any date, in whole or in part (in inverse order of maturity), at 100% of the principal amount thereof plus accrued interest to the redemption date and without premium. Section 5.2. Notice of Redemption. In the case of redemption of Series 2013 Bonds pursuant to Section 5.1 hereof, notice of the call for any such redemption identifying the Series 2013 Bonds, or portions of Series 2013 Bonds, to be redeemed shall be given by mailing a copy of the redemption notice by first class mail not less than ten (10) days nor more than sixty (60) days prior to the date fixed for redemption to the registered owner of each Series 2013 Bond to be redeemed at the address shown on the registration books. Such notice of redemption shall specify any applicable CUSIP number and, in the event of a partial redemption the Series 2013 Bond numbers and called amounts of each Series 2013 Bond, the redemption date, redemption price, interest rate, maturity date and the name and address of the Trustee and the Paying Agent; provided, however, that failure to give such notice by mailing, or any defect therein, with respect to any such Series 2013 Bond shall not affect the validity of any proceedings for the redemption of other Series 2013 Bonds. On and after the redemption date specified in the aforesaid notice, such Series 2013 Bonds, or portions thereof, thus called shall not bear interest, shall no longer be protected by this Indenture and shall not be deemed to be outstanding under the provisions of this Indenture, and the holders thereof shall have the right only to receive the redemption price thereof plus accrued interest thereon to the date fixed for redemption. Notice of any redemption hereunder required to be given to the owners with respect to Series 2013 Bonds held under the Book Entry System shall be given by the Trustee only to the Depository Trust Company, or its nominee, as the holder of such Series 2013 Bonds. Section 5.3. Cancellation. All Series 2013 Bonds which have been redeemed in whole shall be canceled and cremated or otherwise destroyed by the Trustee and shall not be reissued, and a counterpart of the certificate of cremation or other destruction evidencing such cremation or other destruction shall be furnished by the Trustee to the Issuer and the Borrower. Section 5.4. Redemption Payments. Prior to the date fixed for redemption, funds shall be deposited with the Trustee to pay, and the Trustee is hereby authorized and directed to apply -29- such funds to the payment of, the Series 2013 Bonds or portions thereof called, together with accrued interest thereon to the redemption date. Upon the giving of notice and the deposit of funds for redemption, interest on the Series 2013 Bonds thus called shall no longer accrue after the date fixed for redemption. No payment shall be made by the Paying Agent upon any Series 2013 Bond until such Series 2013 Bond shall have been delivered for payment or cancellation or the Trustee shall have received the items required by Section 2.8 hereof with respect to any mutilated, lost, stolen or destroyed Series 2013 Bond. Section 5.5. Partial Redemption of Series 2013 Bonds. If fewer than all of the Series 2013 Bonds at the time outstanding are to be called for redemption, the maturities of Series 2013 Bonds or portions thereof to be redeemed shall be selected by the Trustee at the direction of the Borrower. If fewer than all of the Series 2013 Bonds within a maturity are to be redeemed, the Trustee shall select by lot (meaning also random selection by computer) in such manner as the Trustee, in its discretion, may determine, the Series 2013 Bonds or portions of Series 2013 Bonds within such maturity that shall be redeemed. The Trustee shall call for redemption in accordance with the foregoing provisions as many Series 2013 Bonds or portions thereof as will, as nearly as practicable, exhaust the moneys available therefor. Particular Series 2013 Bonds or portions thereof shall be redeemed only in amounts such that the Series 2013 Bonds remaining outstanding thereafter will be in the minimum principal amount of$100,000 and any $1 integral multiples in excess thereof. If less than the entire principal amount of any registered Series 2013 Bond then outstanding is called for redemption, then upon notice of redemption given as provided in Section 5.2 hereof, the owner of such registered Series 2013 Bond shall forthwith surrender such Series 2013 Bond to the Paying Agent in exchange for (a) payment of the redemption price and accrued interest on the principal amount called for redemption and (b) a new Series 2013 Bond or Series 2013 Bonds of like series in an aggregate principal amount equal to the unredeemed balance of the principal amount of such registered Series 2013 Bond, which shall be issued without charge therefor. (End of Article V) -30- ARTICLE VI. GENERAL COVENANTS Section 6.1. Payment of Principal and Interest. The Issuer covenants that it will promptly pay the principal of, premium, if any, and interest on every Series 2013 Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in the Series 2013 Bonds according to the true intent and meaning thereof. The principal, interest and premium, if any, on the Series 2013 Bonds are payable solely and only from the Trust Estate, consisting of funds and accounts held under this Indenture, TIF Revenues and the payments to be made on the Series 2013 Note which payments are hereby specifically pledged and assigned to the payment thereof in the manner and to the extent herein specified (subject to any Additional Parity TIF Revenue Pledges), and nothing in the Series 2013 Bonds or in this Indenture should be considered as pledging any other funds or assets of the Issuer. The Series 2013 Bonds, and the interest payable thereon, do not and shall not represent or constitute a debt of the Issuer within the meaning of the provisions of the constitution or statutes of the State of Indiana or a pledge of the faith and credit of the Issuer. The Series 2013 Bonds, as to both principal and interest, are not an obligation or liability of the State of Indiana, or of any political subdivision or taxing authority thereof, but are a special limited obligation of the Issuer and are payable solely and only from the Trust Estate, consisting of funds and accounts held under this Indenture, the TIF Revenues and payments to be made on the Series 2013 Note issued under the Agreement pledged and assigned for their payment in accordance with this Indenture. Neither the faith and credit nor the taxing power of the Issuer, the State of Indiana or any political subdivision or taxing authority thereof is pledged to the payment of the principal of, premium, if any, or interest on the Series 2013 Bonds. The Series 2013 Bonds do not grant the owners or holders thereof any right to have the Issuer, the State of Indiana or its General Assembly, or any political subdivision or taxing authority of the State of Indiana, levy any taxes or appropriate any funds for the payment of the principal of, premium, if any, or interest on the Series 2013 Bonds. The Issuer has no taxing power with respect to the Series 2013 Bonds. No covenant or agreement contained in the Series 2013 Bonds or this Indenture shall be deemed to be a covenant or agreement of the Redevelopment Commission, the Economic Development Commission, the Issuer or of any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Economic Development Commission or the Issuer in his or her individual capacity, and neither the Redevelopment Commission, the Economic Development Commission, the Issuer nor any member, director, officer, agent, attorney or employee of the Redevelopment Commission, the Economic Development Commission or the Issuer executing the Series 2013 Bonds shall be liable personally on the Series 2013 Bonds or be subject to any personal liability or accountability by reason of the issuance of the Series 2013 Bonds. Section 6.2. Performance of Covenants. The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Series 2013 Bond executed, authenticated and delivered hereunder and in all proceedings of its members pertaining thereto. The Issuer represents that it is duly authorized under the constitution and laws of the State of Indiana to issue the Series 2013 -31- Bonds authorized hereby and to execute this Indenture, and to pledge and assign the Series 2013 Note, pledge the TIF Revenues and assign the Agreement in the manner and to the extent herein set forth; that all action on its part for the issuance of the Series 2013 Bonds and the execution and delivery of this Indenture has been duly and effectively taken, and that the Series 2013 Bonds in the hands of the holders and owners thereof are and will be valid and enforceable obligations of the Issuer according to the import thereof, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws, judicial decisions and principles of equity relating to or affecting creditors' rights generally and subject to the valid exercise of the constitutional powers of the Issuer, the State of Indiana and the United States of America. Section 6.3. Ownership; Instruments of Further Assurance. The Issuer represents that at the time of the pledge and assignment thereof it will lawfully own the Series 2013 Note and that such pledge and assignment and the assignment of the Agreement to the Trustee hereby made will be valid and lawful. The Issuer covenants that it will defend the title to the Series 2013 Note and its interest in the Agreement to the Trustee, for the benefit of the holders and owners of the Series 2013 Bonds against the claims and demands of all persons whomsoever. The Issuer covenants that it will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such indentures supplemental hereto and such further acts, instruments and transfers as the Trustee may reasonably require for the better assuring, transferring, mortgaging, conveying, pledging, assigning and confirming unto the Trustee, the Series 2013 Note, the Agreement and all payments thereon and thereunder pledged hereby to the payment of the principal of, premium, if any, and interest on the Series 2013 Bonds. Section 6.4. Filing of Indenture, Agreement and Security Instruments. The Issuer, upon the written direction and at the sole expense of the Borrower, shall cause this Indenture, the Agreement and all supplements thereto as well as such other security instruments, financing statements and all supplements thereto and other instruments as may be required from time to time to be filed in such manner and in such places as may be required by law in order to fully preserve and protect the lien hereof and the security of the holders and owners of the Series 2013 Bonds and the rights of the Trustee hereunder. This Section 6.4 shall impose no duty to record or file the instruments noted above where filing or recordation is not required by law in order to perfect a security interest. Continuation of financing statements may be filed without consent of the debtor party thereto. Section 6.5. List of Bondholders. The Trustee will keep on file at the principal office of the Trustee a list of names and addresses of the holders of all Series 2013 Bonds. At reasonable times and under reasonable regulations established by the Trustee, said list may be inspected and copied by the Borrower or by holders and/or owners (or a designated representative thereof) of 25% or more in principal amount of Series 2013 Bonds then outstanding, such ownership and the authority of any such designated representative to be evidenced to the satisfaction of the Trustee. Section 6.6. Rights Under Agreement. The Issuer agrees that the Trustee in its name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Borrower under and pursuant to the Agreement for and on behalf of the Bondholders, whether or not the Issuer is in default hereunder. -32- Section 6.7. Investment of Funds. Moneys in the Funds established under this Indenture may be invested in Qualified Investments to the extent and in the manner provided for in Section 3.8 of the Agreement. The Trustee shall not be liable or responsible for any loss resulting from any such investment. The interest accruing thereon and any profit realized from such investments shall be credited, and any loss resulting from such investments shall be charged, to the fund in which the money was deposited. Section 6.8. Non-presentment of Series 2013 Bonds. If any Series 2013 Bond shall not be presented for payment when the principal thereof becomes due, either at maturity, or at the date fixed for redemption thereof, or otherwise, if funds sufficient to pay any such Series 2013 Bond shall have been made available to the Paying Agent for the benefit of the holder or holders thereof, all liability of the Issuer to the holder thereof for the payment of such Series 2013 Bond shall forthwith cease, determine and be completely discharged, and thereupon it shall be the duty of the Paying Agent to hold such funds for five (5) years without liability for interest thereon, for the benefit of the holder of such Series 2013 Bond, who shall thereafter be restricted exclusively to such funds, for any claim of whatever nature on his part under this Indenture or on, or with respect to, such Series 2013 Bond. Any moneys so deposited with and held by the Paying Agent not so applied to the payment of Series 2013 Bonds within five (5) years after the date on which the same shall become due shall be repaid by the Paying Agent to the Borrower, and thereafter, Bondholders shall be entitled to look only to the Borrower for payment, and then only to the extent of the amount so repaid, and the Borrower shall not be liable for any interest thereon and shall not be regarded as a trustee of such money. Section 6.9. Direction of Bondholders. Whenever any action, direction or consent is required of the Trustee, the Trustee shall consult with the holders of the Series 2013 Bonds and shall take such action, give such direction or give such consent as shall be directed by the Requisite Bondholders. (End of Article VI) -33- ARTICLE VII. DEFAULTS AND REMEDIES Section 7.1. Events of Default. Each of the following events is hereby declared an "event of default" hereunder: (a) Payment of any amount payable on the Series 2013 Bonds shall not be made when the same is due and payable; or (b) Any event of default as defined in Section 5.1 of the Agreement shall occur and be continuing; or (c) The Issuer shall default in the due and punctual performance of any other of the covenants, conditions, agreements and provisions contained in the Series 2013 Bonds or in this Indenture or any agreement supplemental hereto on the part of the Issuer to be performed, and such default shall continue for thirty (30) days after written notice specifying such default and requiring the same to be remedied shall have been given to the Issuer and the Borrower by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of the holders of all of the Series 2013 Bonds then outstanding hereunder; or (d) The Issuer shall fail to apply collected TIF Revenues as required by Article IV of this Indenture. Section 7.2. Acceleration. Upon the happening of any event of default specified in Section 7.1 and the continuance of the same for the period, if any, specified in Section 7.1, the Trustee, by notice in writing delivered to the Issuer and the Borrower, shall declare the entire unpaid principal amount of the Series 2013 Bonds then outstanding, and the interest accrued thereon, to be immediately due and payable, unless such event of default is waived pursuant to Section 7.9 hereof. The Issuer's obligation to pay TIF Revenues shall not be subject to acceleration under any circumstances or upon the happening of any event of default under this Indenture. Section 7.3. Remedies; Rights of Bondholders. (a) If an event of default occurs, the Trustee may pursue any available remedy by suit at law or in equity to enforce the payment of the principal of, premium, if any, and interest on the Series 2013 Bonds then outstanding, and to enforce any obligations of the Issuer hereunder and of the Borrower under the Agreement and the Series 2013 Note. (b) Upon the occurrence of an event of default, and if directed so to do by the Requisite Bondholders and indemnified as provided in Section 8.1 hereof, the Trustee shall be obligated to exercise such one or more of the rights and powers conferred by this Article as the Trustee, being advised by counsel, shall deem most expedient in the interests of the Bondholders. (c) No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to the Bondholders) is intended to be exclusive of any other remedy, but each and -34- every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the Bondholders hereunder or now or hereafter existing at law or in equity or by statute. (d) No delay or omission to exercise any right or power accruing upon any event of default shall impair any such right or power or shall be construed to be a waiver of any event of default or acquiescence therein, and every such right and power may be exercised from time to time as may be deemed expedient. (e) No waiver of any event of default hereunder, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent event of default or shall impair any rights or remedies consequent thereon. Section 7.4. Right of Bondholders to Direct Proceedings. Anything in this Indenture to the contrary notwithstanding, the holders of all Series 2013 Bonds then outstanding shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the time, the method and the place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided, that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture, and provided that the Trustee is obligated to pursue its remedies under the provisions of Section 7.2 hereof before any other remedies are sought. Section 7.5. Application of Moneys. All moneys received by the Trustee pursuant to any right given or action taken under the provisions of this Article VII, after payment of the cost and expenses of the proceedings resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or made by the Trustee or the Issuer and the creation of a reasonable reserve for anticipated fees, costs and expenses, shall be deposited into the Series 2013 Bond Fund and all moneys in the Series 2013 Bond Fund shall be applied as follows: (a) Unless the principal of all the Series 2013 Bonds shall have become or shall have been declared due and payable, all such moneys shall be applied: First: To the payment to the persons entitled thereto of all installments of interest then due on the Series 2013 Bonds, in the order of the maturity of the installments of such interest, and if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discrimination or privilege; and Second: To the payment to the persons entitled thereto of the unpaid principal of and premium, if any, of the Series 2013 Bonds which shall have become due (other than Series 2013 Bonds called for redemption for the payment of which moneys are held pursuant to the provisions of this Indenture), in the order of their due dates, with interest on such Series 2013 Bonds from the respective dates upon which they become due, and if the amount available shall not be sufficient to pay in full Series 2013 Bonds due on any particular date, together with such interest, then to the payment ratably, according to the -35- amount of principal due on such date, to the persons entitled thereto without any discrimination or privilege. Third: To the payment of the balance, if any, to the Borrower or its successors or assigns, upon the written request of the Borrower, except for any remaining TIF Revenues (which shall be paid to the Issuer), or to whosoever may be lawfully entitled to receive the same upon its written request, or as any court of competent jurisdiction may direct. (b) If the principal of all the Series 2013 Bonds shall have become due or shall have been declared due and payable, all such moneys shall be applied to the payment of the principal and interest then due and unpaid upon the Series 2013 Bonds, without preference or priority of principal over interest or of interest over any other installment of interest, according to the amounts due respectively for principal and interest, to the persons entitled thereto without any discrimination or privilege. (c) If the principal of all the Series 2013 Bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article VII then, subject to the provisions of subsection (b) of this Section 7.5 in the event that the principal of all the Series 2013 Bonds shall later become due or be declared due and payable, the moneys shall be applied in accordance with the provisions of subsection (a) of this Section 7.5. Whenever moneys are to be applied pursuant to the provisions of this Section 7.5, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an interest payment date unless it shall deem another date more suitable) upon which such application is to be made, and upon such date interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date and shall not be required to make payment to the holder of any Series 2013 Bond until such Series 2013 Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Section 7.6. Remedies Vested In Trustee. All rights of action (including the right to file proof of claims) under this Indenture or under any of the Series 2013 Bonds may be enforced by the Trustee without the possession of any of the Series 2013 Bonds or the production thereof in any trial or other proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any holders of the Series 2013 Bonds, and any recovery of judgment shall, subject to the provisions of Section 7.5 hereof, be for the equal benefit of the holders of the outstanding Series 2013 Bonds. Section 7.7. Rights and Remedies of Bondholders. No holder of any Series 2013 Bond shall have any right to institute any suit, action or proceeding in equity or at law for the -36- enforcement of this Indenture or for the execution of any trust thereof or for the appointment of a receiver or any other remedy hereunder, unless a default has occurred of which the Trustee has been notified or is deemed to have notice as provided in Section 8.1(g) hereof, nor unless also such default shall have become an event of default and the holders of all Series 2013 Bonds then outstanding shall have made written request to the Trustee and shall have offered reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, nor unless also they have offered to the Trustee indemnity as provided in Section 8.1(1) hereof, nor unless the Trustee shall thereafter fail or refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding in its, his, or their own name or names. Such notification, request and offer of indemnity are hereby declared in every case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of this Indenture, and to any action or cause of action for the enforcement of this Indenture, or for the appointment of a receiver or for any other remedy hereunder; it being understood and intended that no one or more holders of the Series 2013 Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice the lien of this Indenture by its, his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of the holders of all Series 2013 Bonds then outstanding. Nothing in this Indenture contained shall, however, affect or impair the right of any Bondholder to enforce the covenants of the Issuer to pay the principal of and interest on each of the Series 2013 Bonds issued hereunder to the respective holders thereof at the time and place, from the source and in the manner in said Series 2013 Bonds expressed. Section 7.8. Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver, or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely, then and in every such case the Issuer, the Borrower and the Trustee shall be restored to their former positions and rights hereunder, respectively, with respect to the Trust Estate, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken. Section 7.9. Waivers of Events of Default. The Trustee may in its discretion waive any event of default hereunder and its consequences and rescind any declaration of maturity of principal of and interest on the Series 2013 Bonds, and shall do so upon the written request of the holders of (1) all the Series 2013 Bonds then outstanding in respect of which default in the payment of principal and/or premium, if any, and/or interest exists, or (2) all Series 2013 Bonds then outstanding in the case of any other default; provided, however, that there shall not be waived (a) any event of default in the payment of the principal of any outstanding Series 2013 Bonds at the date of maturity specified therein, or (b) any default in the payment when due of the interest on any such Series 2013 Bonds unless prior to such waiver or rescission, arrears of interest, with interest (to the extent permitted by law) at the rate borne by the Series 2013 Bonds in respect of which such default shall have occurred on overdue installments of interest or all arrears of payments of principal and premium, if any, when due, as the case may be, and all expenses of the Trustee in connection with such default, shall have been paid or provided for, and in case of any such waiver or rescission, or in case any proceeding taken by the Trustee on account of any such default shall have been discontinued or abandoned or determined adversely, -37- then and in every such case the Issuer, the Trustee and the Bondholders shall be restored to their former positions and rights hereunder, respectively, but no such waiver or rescission shall extend to any subsequent or other default, or impair any right consequent thereon. (End of Article VII) -38- ARTICLE VIII. THE TRUSTEE AND PAYING AGENT Section 8.1. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture and agrees to perform said trusts as a corporate trustee ordinarily would perform said trusts under a corporate indenture, but no implied covenants or obligations shall be read into this Indenture against the Trustee. (a) The Trustee may execute any of the trusts or powers hereof and perform any of its duties by or through attorneys, agents, receivers or employees, but shall not be answerable for the conduct of the same in accordance with the standard specified above, and shall be entitled to advice of counsel concerning all matters of trusts hereof and the duties hereunder, and may in all cases pay such reasonable compensation to all such attorneys, agents, receivers and employees as may reasonably be employed in connection with the trusts hereof. The Trustee may act upon the opinion or advice of any attorney (who may be the attorney or attorneys for the Issuer or the Borrower). The Trustee shall not be responsible for any loss or damage resulting from any action or non-action in good faith in reliance upon such opinion or advice. (b) The Trustee shall not be responsible for any recital herein or in the Series 2013 Bonds (except in respect to the certificate of the Trustee endorsed on the Series 2013 Bonds), or for insuring the property herein conveyed or collecting any insurance moneys, or for the validity of the execution by the Issuer of this Indenture or of any supplements hereto or instruments of further assurance, or for the sufficiency of the security for the Series 2013 Bonds issued hereunder or intended to be secured hereby, or for the value or title of the property herein conveyed or otherwise as to the maintenance of the security hereof; and the Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of the Issuer or on the part of the Borrower under the Agreement;but the Trustee may require of the Issuer or the Borrower full information and advice as to the performance of the covenants, conditions and agreements aforesaid or as to the condition of the property herein conveyed. The Trustee shall have no obligation to perform any of the duties of the Issuer under the Agreement, and the Trustee shall not be responsible or liable for any loss suffered in connection with any investment of funds made by it in accordance with the provisions of this Indenture. (c) The Trustee shall not be accountable for the use of any Series 2013 Bonds authenticated by it or the Paying Agent or delivered hereunder. The Trustee may become the owner of Series 2013 Bonds secured hereby with the same rights as it would have if not Trustee. (d) The Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the owner of any Series 2013 Bond shall be conclusive and binding upon all future owners of the same Series 2013 Bond and upon Series 2013 Bonds issued in exchange therefore or in place thereof -39- (e) As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate signed on behalf of the Issuer or the Borrower by its duly authorized officers as sufficient evidence of the facts therein contained and, prior to the occurrence of a default of which pursuant to the Trustee has been notified as provided in subsection (g) of this Section, or of which under said subsection it is deemed to have notice, shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction or action is necessary or expedient, but may in its discretion secure such further evidence deemed necessary or advisable, but shall in no case be bound to secure the same. The Trustee may accept a certificate of the Issuer or the Borrower under its seal to the effect that an ordinance or resolution in the form therein set forth has been adopted by the Issuer or the Borrower as conclusive evidence that such ordinance or resolution has been duly adopted and is in full force and effect. (f) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its gross negligence or willful misconduct; provided, however, that the provisions of this subsection shall not affect the duties of the Trustee hereunder, including the provisions of Article VII hereof (g) The Trustee shall not be required to take notice or be deemed to have notice of any event of default hereunder (other than payment of the principal and interest on the Series 2013 Bonds) unless the Trustee shall be specifically notified in writing of such default by the Issuer or by the holders of at least twenty-five percent (25%) in aggregate principal amount of all Series 2013 Bonds then outstanding, and all notices or other instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered at the principal corporate trust office of the Trustee, and in the absence of such notice so delivered, the Trustee may conclusively assume there is no default except as aforesaid. (h) The Trustee shall not be personally liable for any debts contracted or for damages to persons or to personal property injured or damaged, or for salaries or nonfulfillment of contracts during any period in which it may be in possession of or managing the Trust Estate. (i) At any and all reasonable times and upon reasonable prior written notice, the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect the Trust Estate, and to take such memoranda from and in regard thereto as may be desired. (j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises. (k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall have the right, but shall not be required, to demand, in respect of the authentication of any Series 2013 Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, in addition to that by the terms hereof required as a condition of such action by the Trustee, deemed desirable for the authentication of -40- any Series 2013 Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee. (1) Before taking any action under this Indenture relating to an event of default or in connection with its duties under this Indenture other than making payments of principal and interest on the Bonds as they become due or causing an acceleration of the Series 2013 Bonds whenever required by this Indenture, the Trustee may require that a satisfactory indemnity bond be furnished for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its gross negligence or willful misconduct in connection with any action so taken. Such indemnity shall survive the termination of this Indenture and the resignation or removal of the Trustee. (m) All moneys received by the Trustee or the Paying Agent shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor the Paying Agent shall be under any liability for interest on any moneys received hereunder except such as may be agreed upon. (n) If any event of default under this Indenture shall have occurred and be continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and shall use the same degree of care as a prudent man would exercise or use in the circumstances in the conduct of his own affairs. (o) The Trustee shall have no responsibility with respect to any information, statement or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Series 2013 Bonds, except for any information provided by the Trustee, and shall have no responsibility for compliance with any state or federal securities laws in connection with the Series 2013 Bonds. (p) The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that (a) the Borrower, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, (b) such originally executed instructions or directions shall be signed by a person as may be designated and authorized to sign for the Borrower or in the name of the Borrower, by an authorized representative of the Borrower, and (c) the Borrower shall provide to the Trustee an incumbency certificate listing such designated persons, which incumbency certificate shall be amended whenever a person is to be added or deleted from the listing. If the Borrower elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee's understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such instructions regardless of whether such instructions conflict with or are inconsistent with a subsequent written instruction. The Borrower agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the -41- Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. Section 8.2. Fees, Charges and Expenses of Trustee and Paying Agent. The Trustee and Paying Agent shall be entitled to payment and/or reimbursement for reasonable fees for their services rendered hereunder and all advances, counsel fees and other expenses reasonably and necessarily made or incurred by the Trustee or Paying Agent in connection with such services. Upon an event of default, but only upon an event of default, the Trustee shall have a right of payment prior to payment on account of interest or principal of, or premium, if any, on any Series 2013 Bond for the foregoing advances, fees, costs and expenses incurred. Section 8.3. Notice to Bondholders if Default Occurs. If an event of default occurs of which the Trustee is by Section 8.1(g) hereof required to take notice or if notice of an event of default be given as in said Section 8.1(g) provided, then the Trustee shall give written notice thereof by registered or certified mail to the last known holders of all Series 2013 Bonds then outstanding shown by the list of Bondholders required by the terms of this Indenture to be kept at the office of the Trustee. Section 8.4. Intervention by Trustee. In any judicial proceeding to which the Issuer is a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests of holders of the Series 2013 Bonds, the Trustee may intervene on behalf of Bondholders and, subject to the provisions of Section 8.1(1), shall do so if requested in writing by the owners of at least twenty-five percent (25%) in aggregate principal amount of all Series 2013 Bonds then outstanding. The rights and obligations of the Trustee under this Section are subject to the approval of a court of competent jurisdiction. Section 8.5. Successor Trustee. Any corporation or association into which the Trustee may be converted or merged, or with which it may be consolidated, or any corporation or association resulting from any such conversion, merger or consolidation, ipso facto, shall be and become successor Trustee hereunder and vested with all of the title to the whole property or trust estate and all the trusts, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that any such successor Trustee shall meet the requirements of a successor Trustee under Section 8.8 hereof. Section 8.6. Resignation by the Trustee. The Trustee and any successor Trustee may at any time resign from the trusts hereby created by giving thirty days' written notice to the Issuer and the Borrower and by registered or certified mail to each registered owner of Series 2013 Bonds then outstanding and to each holder of Series 2013 Bonds as shown by the list of Bondholders required by this Indenture to be kept at the office of the Trustee, and such resignation shall take effect at the end of such thirty (30) days, or upon the earlier appointment of a successor Trustee by the Bondholders or by the Issuer. Such notice to the Issuer and the Borrower may be served personally or sent by registered or certified mail. -42- Section 8.7. Removal of the Trustee. The Trustee may be removed at any time by an instrument or concurrent instruments in writing delivered to the Trustee and to the Issuer and signed by all the Bondholders. Section 8.8. Appointment of Successor Trustee by the Bondholders; Temporary Trustee. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under control of any public officer or officers, or of a receiver appointed by a court, a successor may be appointed by the owners of a majority in aggregate principal amount of Series 2013 Bonds then outstanding, by an instrument or concurrent instruments in writing signed by such owners, or by their attorneys-in-fact, duly authorized; provided, nevertheless, that in case of such vacancy, the Issuer, by an instrument executed by one of its duly authorized officers, may appoint a temporary Trustee to fill such vacancy until a successor Trustee shall be appointed by the Bondholders in the manner above provided; and any such temporary Trustee so appointed by the Issuer shall immediately and without further act be superseded by the Trustee so appointed by such Bondholders. Every such Trustee appointed pursuant to the provisions of this Section shall be a trust company or bank, having a reported capital and surplus of not less than One Hundred Million Dollars ($100,000,000) if there be such an institution willing, qualified and able to accept the trust upon reasonable or customary terms. Section 8.9. Concerning Any Successor Trustees. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Issuer and the Borrower an instrument in writing accepting such appointment hereunder, and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written request of the Issuer, or of its successor, execute and deliver an instrument transferring to such successor Trustee all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and moneys held by it as Trustee hereunder to its successor. Should any instrument in writing from the Issuer be required by any successor Trustee for more fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to be vested in the predecessor, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer. The resignation of any Trustee and the instrument or instruments removing any Trustee and appointing a successor hereunder, together with all other instruments provided for in this Article, shall be filed by the successor Trustee in each office, if any, where this Indenture shall have been filed. Section 8.10. Trustee Protected in Relying Upon Resolutions, etc.. Subject to the conditions contained herein, the resolutions, ordinances, opinions, certificates and other instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence of the facts and conclusions stated therein and shall be full warrant, protection and authority to the Trustee for the release of property and the withdrawal of cash hereunder. Section 8.11. Appointment of Paying Agent and Registrar; Resignation or Removal of Paying Agent. The Trustee is hereby appointed the initial "Paying Agent" under this Indenture. Any Paying Agent may at any time resign and be discharged of the duties and obligations created -43- by this instrument and any supplemental indenture by giving at least sixty (60) days' written notice to the Issuer, the Borrower and the Trustee. Any Paying Agent may be removed at any time by an instrument, filed with such Paying Agent and the Trustee and signed by the Issuer and the Borrower. Any successor Paying Agent shall be appointed by the Issuer at the direction of the Borrower and shall be a bank or trust company duly organized under the laws of any state of the United States or a national banking association, in each case having a capital stock and surplus aggregating at least One Hundred Million Dollars ($100,000,000), willing and able to accept the office on reasonable and customary terms and authorized by law to perform all the duties imposed upon it by this Indenture. In the event of the resignation or removal of any Paying Agent, such Paying Agent shall pay over, assign and deliver any moneys or securities held by it as Paying Agent to its successors, or if there if no successor, to the Trustee. (End of Article VIII) -44- ARTICLE IX. SUPPLEMENTAL INDENTURES Section 9.1. Supplemental Indentures Not Requiring Consent of Bondholders. The Issuer and the Trustee may, without the consent of, or notice to, any of the Bondholders, enter into an indenture or indentures supplemental to this Indenture, as shall not be inconsistent with the terms and provisions hereof, for any one or more of the following purposes: (a) To cure any ambiguity or formal defect or omission in this Indenture; (b) To grant to or confer upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Bondholders or the Trustee or any of them; (c) To subject to this Indenture additional security, revenues, properties or collateral; (d) To make any other change in this Indenture which, in the judgment of the Trustee, is not to the material prejudice of the Trustee, the Borrower, the Issuer or the holders of the Series 2013 Bonds; or (e) To modify, amend or supplement this Indenture in such manner as required to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar Federal statute hereafter in effect, and, if they so determine, to add to this Indenture such other terms, conditions and provisions as may be required by said Trust Indenture Act of 1939, as amended, or similar federal statute. Section 9.2. Supplemental Indentures Requiring Consent of Bondholders. Exclusive of supplemental indentures covered by Section 9.1 hereof, and subject to the terms and provisions contained in this Section 9.2, and not otherwise, the Requisite Bondholders shall have the right, from time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the execution by the Issuer and the Trustee of such other indenture or indentures supplemental hereto as shall be deemed necessary and desirable by the Issuer for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any supplemental indenture; provided however, that nothing in this Section 9.2 contained shall permit or be construed as permitting (except as otherwise permitted in this Indenture) (a) an extension of the stated maturity or reduction in the principal amount of, or reduction in the rate or extension of the time of paying of interest on, or reduction of any premium payable on the redemption of, any Series 2013 Bonds, without the consent of the holder of such Series 2013 Bond, or (b) a reduction in the amount or extension of the time of any payment required by any sinking fund applicable to any Series 2013 Bonds without the consent of the holders of all the Series 2013 Bonds which would be affected by the action to be taken, or(c) the creation of any lien prior to or on a parity with the lien of this Indenture without the consent of the holders of all the Series 2013 Bonds at the time outstanding (provided, however, that nothing herein shall prohibit the Redevelopment Commission from pledging TIF Revenues to other obligations on a parity basis with the Series 2013 Bonds to the -45- extent permitted by the resolutions of the Redevelopment Commission pledging the TIF Revenues for the benefit of the Series 2013 Bonds), or (d) a reduction in the aforesaid aggregate principal amount of Series 2013 Bonds the holders of which are required to consent to any such supplemental indenture, without the consent of the holders of all the Series 2013 Bonds at the time outstanding which would be affected by the action to be taken, or (e) a modification of the rights, duties or immunities of the Trustee, without the written consent of the Trustee, or (f) a privilege or priority of any Series 2013 Bond over any other Series 2013 Bonds, or (g) the deprivation of the holder of any Series 2013 Bonds then Outstanding of the lien hereby created. Anything herein to the contrary notwithstanding, a supplemental indenture under this Article which affects any rights of the Borrower shall not become effective unless and until the Borrower shall have consented in writing to the execution and delivery of such supplemental indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery of any such supplemental indenture together with a copy of the proposed supplemental indenture to be mailed by certified or registered mail to the Borrower at least fifteen (15) days prior to the proposed date of execution and delivery of any such supplemental indenture. (End of Article IX) -46- ARTICLE X. AMENDMENTS TO THE AGREEMENT Section 10.1. Amendments, etc., to Agreement Not Requiring Consent of Bondholders. The Issuer and the Trustee, with the consent of the Borrower shall, without the consent of or notice to the Bondholders, consent to any amendment, change or modification of the Agreement as may be required (i) by the provisions of the Agreement and this Indenture, or (ii) for the purpose of curing any ambiguity or formal defect or omission, or (iii) in connection with any other change therein which, in the judgment of the Trustee, is not to the material prejudice of the Trustee, the Issuer or the holders of the Series 2013 Bonds. Section 10.2. Amendments, etc., to Agreement Requiring Consent of Bondholders. Except for the amendments, changes or modifications as provided in Section 10.1 hereof', neither the Issuer nor the Trustee shall consent to any other amendment, change or modification of the Agreement without the written approval or consent of the Requisite Bondholders given and procured as in Section 9.2 provided. Section 10.3. No Amendment May Alter Series 2013 Note. Under no circumstances shall any amendment to the Agreement alter the Series 2013 Note or the payments of principal and interest thereon, without the consent of the holders of all the Series 2013 Bonds at the time outstanding. (End of Article X) -47- ARTICLE XI. MISCELLANEOUS Section 11.1. Satisfaction and Discharge. All rights and obligations of the Issuer and the Borrower under the Agreement, the Series 2013 Note and this Indenture shall terminate, and such instruments shall cease to be of further effect, and the Trustee shall cancel the Series 2013 Note and deliver it to the Borrower, shall execute and deliver all appropriate instruments evidencing and acknowledging the satisfaction of this Indenture, and shall assign and deliver to the Borrower any moneys and investments in all Funds established hereunder (except moneys or investments held by the Trustee for the payment of principal of, interest on, or premium, if any, on the Series 2013 Bonds, and except for any TIF Revenues, which shall be delivered to the Issuer) when (a) all fees and expenses of the Trustee and the Paying Agent shall have been paid; (b) the Issuer and the Borrower shall have performed all of their covenants and promises in the Agreement, the Series 2013 Note and this Indenture; and (c) all Series 2013 Bonds theretofore authenticated and delivered (i) have become due and payable, or (ii) are to be retired or called for redemption under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee at the expense of the Borrower, or (iii) have been delivered to the Trustee canceled or for cancellation; and, in the case of(i) and (ii) above, there shall have been deposited with the Trustee either cash in an amount which shall be sufficient, or investments (but only to the extent that the full faith and credit of the United States of America are pledged to the timely payment thereof) the principal of and the interest on which when due will provide moneys which, together with the moneys, if any, deposited with the Trustee, shall be sufficient to pay when due the principal or redemption price, if applicable, and interest due and to become due on the Series 2013 Bonds and prior to the redemption date or maturity date thereof, as the case may be; provided, however, that none of the Series 2013 Bonds may be advance refunded if such advance refunding is not permitted by the laws of Indiana. Section 11.2. Defeasance of Series 2013 Bonds. Any Series 2013 Bond shall be deemed to be paid and no longer Outstanding within the meaning of this Article XI and for all purposes of this Indenture when (a)payment of the principal and interest of and premium, if any, on such Series 2013 Bond either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for by irrevocably depositing with the Trustee in trust and irrevocably setting aside exclusively for such payment, (1)moneys sufficient to make such payment or (2) Governmental Obligations maturing as to principal and interest in such amounts and at such times as will ensure the availability of sufficient moneys to make such payment, and (b) all necessary and proper fees, compensation, indemnities and expenses of the Trustee and the Issuer pertaining to the Series 2013 Bonds with respect to which such deposit is made shall have been paid or the payment thereof provided for. At such time as a Series 2013 Bond shall be deemed to be paid hereunder, as aforesaid, such Series 2013 Bond shall no longer -48- be secured by or entitled to the benefits of this Indenture, except for the purposes of any such payment from such moneys or Governmental Obligations. Notwithstanding the foregoing, no deposit under clause (a)(ii) of the immediately preceding paragraph shall be deemed payment of such Series 2013 Bonds as aforesaid until (a) proper notice of redemption of such Series 2013 Bonds shall have been previously given in accordance with Section 5.2 of this Indenture, or if the Series 2013 Bonds are not by their terms subject to redemption within the next succeeding sixty (60) days, until the Borrower shall have given the Trustee in form satisfactory to the Trustee irrevocable instructions to notify, as soon as practicable, the owners of the Series 2013 Bonds, that the deposit required by the preceding paragraph has been made with the Trustee and that the Series 2013 Bonds are deemed to have been paid in accordance with this Section 11.2 and stating the maturity or redemption date upon which moneys are to be available for the payment of the principal of and the applicable redemption premium, if any, on said Series 2013 Bonds, plus interest thereon to the due date thereof; or (b)the maturity of such Series 2013 Bonds. All moneys so deposited with the Trustee as provided in this Section 11.2 may also be invested and reinvested, at the written direction of the Borrower, in Governmental Obligations, maturing in the amounts and at the times as hereinbefore set forth, and all income from all Governmental Obligations in the hands of the Trustee pursuant to this Section 11.2 which is not required for the payment of principal of the Series 2013 Bonds and interest and premium, if any, thereon with respect to which such moneys shall have been so deposited shall be deposited into the Series 2013 Bond Fund as and when realized and collected for use and application in the same manner as are other moneys deposited into the Series 2013 Bond Fund. Notwithstanding any provision of any other Article of this Indenture which may be contrary to the provisions of this Section 11.2, all moneys or Governmental Obligations set aside and held in trust pursuant to the provisions of this Section 11.2 for the payment of Series 2013 Bonds (including premium thereon, if any) shall be applied to and used solely for the payment of the particular Series 2013 Bonds (including the premium thereon, if any) with respect to which such moneys or Governmental Obligations have been so set aside in trust. Anything in Article 9 hereof to the contrary notwithstanding, if moneys or Governmental Obligations have been deposited or set aside with the Trustee pursuant to this Section 11.2 for the payment of Series 2013 Bonds and such Series 2013 Bonds shall not have in fact been actually paid in full, no amendment to the provisions of this Section 11.2 shall be made without the consent of the owner of each Series 2013 Bond affected thereby. The right to register the transfer of or to exchange Series 2013 Bonds shall survive the discharge of this Indenture. Section 11.3. Cancellation of Series 2013 Bonds. If the owner of any Series 2013 Bonds presents that Series 2013 Bond to the Trustee with an instrument satisfactory to the Trustee waiving all claims for payment of that Series 2013 Bond, the Trustee shall cancel that Series 2013 Bond and the Bondholder shall have no further claim against the Trust Estate, the Issuer or the Borrower with respect to that Series 2013 Bond. -49- Section 11.4. Application of Trust Money. All money or investments deposited with or held by the Trustee pursuant to Section 11.1 shall be held in trust for the holders of the Series 2013 Bonds, and applied by it, in accordance with the provisions of the Series 2013 Bonds and this Indenture, to the payment, either directly or through the Paying Agent, to the persons entitled thereto, of the principal (and premium, if any) and interest for the payment of which such money has been deposited with the Trustee; but such money or obligations need not be segregated from other funds except to the extent required by law. Section 11.5. Consents, etc., of Bondholders. Any consent, request, direction, approval, objection or other instrument required by this Indenture to be executed by the Bondholders may be in any number of concurrent writings of similar tenor and may be executed by such Bondholders in person or by agent appointed in writing; provided, however, that whenever this Indenture or the Agreement requires that any such consent or other action be taken by the holders of a specified percentage, fraction or majority of the Series 2013 Bonds outstanding, any such Series 2013 Bonds held by or for the account of the following persons shall not be deemed to be outstanding hereunder for the purpose of determining whether such requirement has been met: the Issuer, any of its members, the Borrower, or the directors, trustees, officers or members of the Borrower. For all other purposes, Series 2013 Bonds held by or for the account of such person shall be deemed to be outstanding hereunder. Proof of the execution of any such consent, request, direction, approval, objection or other instrument or of the writing appointing any such agent and of the ownership of Series 2013 Bonds, if made in the following manner, shall be sufficient for any of the purposes of this Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken under such request or other instrument, namely: (a) The fact and date of the execution by any person of any such writing may be proved by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such writing acknowledged before him the execution thereof, or by affidavit of any witness to such execution. (b) The fact of the holding by any person of Series 2013 Bonds transferable by delivery and the amounts and numbers of such Series 2013 Bonds, and the date of the holding of the same, may be proved by a certificate executed by any trust company, bank or bankers, wherever situated, stating that at the date thereof the party named therein did exhibit to an officer of such trust company or bank or to such banker, as the property of such party, the Series 2013 Bonds therein mentioned if such certificate shall be deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require evidence that such Series 2013 Bonds have been deposited with a bank, bankers or trust company, before taking any action based on such ownership. In lieu of the foregoing, the Trustee may accept other proofs of the foregoing as it shall deem appropriate. For all purposes of this Indenture and of the proceedings for the enforcement hereof, such person shall be deemed to continue to be the holder of such Series 2013 Bond until the Trustee shall have received notice in writing to the contrary. Section 11.6. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Series -50- 2013 Bonds is intended to be or shall be construed to give to any person other than the parties hereto, the Borrower, and the holders of the Series 2013 Bonds, any legal or equitable right, remedy or claim under or in respect to this Indenture or any covenants, conditions and provisions herein contained, this Indenture and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the parties hereto, the Borrower and the holders of the Series 2013 Bonds as herein provided. Section 11.7. Severability. If any provision of this Indenture shall be held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any other provision or provisions hereof or any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, clauses or Sections in this Indenture contained shall not affect the remaining portions of this Indenture or any part thereof Section 11.8. Notices. All notices, demands, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, postage prepaid, with proper address as indicated below. The Issuer, the Borrower and the Trustee may, by written notice given by each to the others, designate any address or addresses to which notices, demands, certificates or other communications to them shall be sent when required as contemplated by this Indenture. Until otherwise provided by the respective parties, all notices, demands, certificates and communications to each of them shall be addressed as provided in Section 9.4 of the Agreement. Section 11.9. Counterparts. This Indenture may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 11.10. Applicable Law. This Indenture shall be governed exclusively by the applicable laws of the State of Indiana. Section 11.11. Immunity of Officers and Directors. No recourse shall be had for the payment of the principal of or premium or interest on any of the Series 2013 Bonds or for any claim based thereon or upon any obligation, covenant or agreement in this Indenture contained against any past, present or future members, officer, directors, agents, attorneys or employees of the Issuer, or any incorporator, member, officer, director, agents, attorneys, employees or trustee of any successor corporation, as such, either directly or through the Issuer or any successor corporation, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such incorporator, members, officers, directors, agents, attorneys, employees or trustees as such is hereby expressly waived and released as a condition of and consideration for the execution of this Indenture and issuance of such Series 2013 Bonds. -51- Section 11.12. Holidays. If any date for the payment of principal or interest on the Series 2013 Bonds is not a business day then such payment shall be due on the first business day thereafter. (End of Article XI) -52- IN WITNESS WHEREOF, the City of Carmel, Indiana, has caused these presents to be signed in its name and behalf by its Mayor and its corporate seal to be hereunto affixed and attested by its Clerk-Treasurer, and to evidence its acceptance of the trusts hereby created, Regions Bank has caused these presents to be signed in its name and behalf by, and its official seal to be hereunto affixed and the same to be attested by, its duly authorized officers, all as of the day and year first above written. CITY OF CARMEL, INDIANA By: James Brainard, Mayor (SEAL) ATTEST: Diana L. Cordray, Clerk-Treasurer -53- REGIONS BANK, as Trustee By: (SEAL) ATTEST: By: -54- EXHIBIT A PROJECT DESCRIPTION The Project to be financed by the Series 2013 Bonds consists of the acquisition, construction and installation of infrastructure improvements in the Legacy Project Economic Development Area. EXHIBIT B COSTS OF ISSUANCE 1. Wallack Somers & Haas, as Redevelopment Commission Counsel 2. Barnes & Thornburg LLP, as Borrower's Counsel and Bond Counsel 3. H.J. Umbaugh& Associates, as Financial Advisor 4. as Trustee INDS01 RCS 1423351v3