Taxpayer Agreement Guaranty 12/15/14 TAXPAYER AGREEMENT GUARANTY
This Taxpayer Agreement Guaranty (the "Guaranty"), executed this 15`h day of
December, 2014, by Pedcor Investments, a limited liability company(the"Guarantor"), in favor of The City of
Carmel Redevelopment Commission ("CRC"), Witnesses:
Recitals
WHEREAS, CRC, Carmel City Center, LLC ("CCC"), CCC West, LLC ("CCC West"), and
CCC Phase II, LLC("CCC Phase II")have executed that certain Project Agreement(Second Component/Park
East/Second Component Public Improvements)dated December 15,2014(the"Second Component Project
Agreement");
WHEREAS, CCC West and CCC Phase II,jointly and severally,are the"Second Component
Developer");
WHEREAS, all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Second Component Project Agreement;
WHEREAS,pursuant to the Second Component Project Agreement,Guarantor is obligated
to execute and deliver the Taxpayer Agreement Guaranty to CRC at the Closing;
WHEREAS, this Guaranty is the "Taxpayer Agreement Guaranty" required to be executed
and delivered pursuant to the Second Component Project Agreement;
WHEREAS, "Obligors"shall mean individually and collectively,as applicable,CCC and each
Affiliated Entity that owns a Component Site, the Kent Project Site, and/or the Office Building Site;
WHEREAS,"Guaranteed Obligations"shall mean all obligations,liabilities,and indebtedness
of the Obligors to CRC at any time and from time to time existing under the Taxpayer Agreements, including,
without limitation, all reasonable attorneys' fees and other costs and expenses incurred by CRC in the
enforcement or collection thereof; whether such obligations, liabilities, and indebtedness are direct, indirect,
fixed, contingent, liquidated, unliquidated, joint, several, or joint and several;
WHEREAS, Guarantor is executing this Guaranty to satisfy the requirements of the Second
Component Project Agreement;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged hereby, Guarantor covenants and agrees as follows:
1. Guarantee. Guarantor absolutely and unconditionally guarantees the full and prompt performance
of the Guaranteed Obligations (including, without limitation, the obligations of the Obligors to make full and
prompt PIATT Payments (as defined in the Taxpayer Agreements)); provided that if: (a) during any
semi-annual period: (i) there is no uncured default or breach by Guarantor under this Guaranty; and (ii) no
deficient sum payable by Guarantor to CRC; and (ii) with respect to that semi-annual period, CRC timely
receives the full amount of the Total Increment Estimate (as set forth on Exhibit A), then CRC shall not have
the right to call on this Guaranty, even though CRC may have not received the full amount due to it under one
or more of the Taxpayer Agreements. In effect, Guarantor is guaranteeing, for each semi-annual period,
aggregate payment under the Taxpayer Agreements to the extent of the full Total Increment Estimate This
Guaranty shall continue in full force and effect until all of the Guaranteed Obligations are performed in full.
2. Waivers. Guarantor expressly waives: (a) demand, notice of demand and dishonor, protest and
notice of protest, and nonperformance of the Guaranteed Obligations; and (b) diligence in: (i) enforcing the
Guaranteed Obligations; (ii) the exercise of rights or remedies under the Second Component Project
Agreement or the Taxpayer Agreements; or(iii)bringing suit against the Second Component Developer, any
of the Obligors, or any other party. CRC shall be under no obligation: (a) to notify Guarantor of: (i) its
acceptance of this Guaranty; or (ii) the failure of the Obligors to fully perform any of the Guaranteed
Obligations; or (b) to use diligence in: (i) preserving the liability of the Second Component Developer, any of
the Obligors, or any other party; or (ii) bringing suit to enforce performance of the Guaranteed Obligations.
To the full extent allowed by applicable law, Guarantor waives all defenses: (a)given to sureties or guarantors
at law or in equity, other than the actual performance of the Guaranteed Obligations; and (b) based upon
questions as to the validity,legality,or enforceability of the Guaranteed Obligations. Guarantor unconditionally
waives: (a) any claim or other right now existing or hereafter arising against the Second Component
Developer, any of the Obligors, or any other party that arises from, or by virtue of, the existence or
performance of this Guaranty (including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or to payment); and(b)any right to participate or share in any right,
remedy, or claim of CRC.
3. Rights. CRC,without: (a)authorization from,or notice to,Guarantor;and/or(b)impairing or affecting
the liability of Guarantor hereunder; from time to time,at its discretion and with or without consideration, may:
(a) alter, compromise, accelerate, or extend the time or manner for the performance of the Guaranteed
Obligations; (b) release, discharge, or increase the obligations of the Second Component Developer or any
Obligor; (c)add, release, discharge, or increase the obligations of any other endorsers, sureties, guarantors,
or other obligors; (d) make changes of any sort whatever in the terms or conditions of: (i) performance of the
Guaranteed Obligations; or(ii) doing business with the Second Component Developer, any of the Obligors,
or any other party; and (e)settle or compromise with the Second Component Developer, any of the Obligors,
or any other party on such terms and conditions as CRC may determine to be in its best interests. No
exercise, or failure to exercise, by CRC of any right or remedy in any way shall: (a) affect: (i) any of the
obligations of Guarantor hereunder; or (ii) any collateral or security furnished by Guarantor; or (b) give
Guarantor any recourse against CRC.
4. Continuing Liability. Notwithstanding the incapacity, death, disability, dissolution, or termination of
the Second Component Developer, any of the Obligors, or any other person or entity, the liability of Guarantor
hereunder shall continue. The failure by CRC to file or enforce a claim against the Second Component
Developer, any of the Obligors, or any other party shall not affect the liability of Guarantor hereunder.
Guarantor shall not be released from liability hereunder if recovery from the Second Component Developer,
any of the Obligors, or any other party: (a) becomes barred by any statute of limitations; or(b) otherwise is
restricted, prevented, or unavailable.
5. Action by CRC. CRC shall not be required to pursue any other rights or remedies before invoking
the benefits of this Guaranty. Specifically, CRC shall not be required to exhaust its rights and remedies
against the Second Component Developer, any of the Obligors, or any other surety, guarantor, or other
obligor. CRC may maintain an action on this Guaranty, regardless of whether: (a) the Second Component
Developer or any of the Obligors is joined in such action; or (b) a separate action is brought against the
Second Component Developer and/or any of the Obligors.
6. Default. Guarantor absolutely and unconditionally covenants and agrees that, if any of the Obligors
defaults for any reason in the performance of all or any part of the Guaranteed Obligations, then, upon
demand, and notwithstanding any other term or condition of this Guaranty (including, without limitation, any
proviso or clause in Section 1), Guarantor shall reimburse CRC for all costs and expenses(including,without
limitation, reasonable attorneys' fees and court costs) incurred by CRC in: (a) exercising its rights and
remedies under Taxpayer Agreements in connection with the failure of the Obligor to perform the Guaranteed
Obligations; and/or(b) the enforcement of this Guaranty against Guarantor; which costs and expenses shall
bear interest at the rate of 12% per annum from the date incurred until the date paid; in all cases without:
(a) further notice of default or dishonor; and (b) any notice with respect to any matter or occurrence having
been given to Guarantor previous to such demand.
7. Representations. Guarantor represents and warrants to CRC that: (a) this Guaranty is the legal,
valid, and binding obligation of Guarantor in accordance with its terms and conditions; (b) there is no action
or proceeding at law or in equity, or by or before any court or governmental instrumentality or agency, now
pending against or, to the knowledge of Guarantor, threatened against, Guarantor that may materially and
adversely affect the financial condition Guarantor; (c) all balance sheets, earnings statements, and other
financial data that have been or hereafter may be furnished to CRC in connection with this Guaranty do and
shall represent fairly the financial condition of Guarantor as of the dates on which, and for the periods for
which, such balance sheets, earning statements, and other data are furnished; (d) all other information,
reports, and other papers and data furnished to CRC shall be: (i) accurate and correct in all respects at the
time given; and (ii)complete, such that CRC is given a true and accurate reporting of the subject matter; and
(e) Guarantor is solvent.
8. Covenants. Upon receipt of a written request at least five business days in advance, Guarantor shall
allow the head of the CRC finance committee to review reasonable information with respect to Guarantor's
assets, liabilities, obligations, and income; provided that: (a) such review shall be conducted at the offices of
Guarantor in Carmel, Indiana; and (b) no such information may be removed by the head of the CRC finance
committee from the premises at which such information is reviewed. Guarantor agrees that it shall answer
reasonable questions posed by the head of the CRC finance committee with respect to such financial
information. In addition, Guarantor shall satisfy and comply with each and every of the financial and reporting
covenants set forth on Exhibit B (including, without limitation, requirements that Guarantor: (a) maintains
specified net worth and liquidity levels, if and to the extent set forth on Exhibit B; and (b) notifies CRC of any
drop below the specified net worth and liquidity levels that are specified on Exhibit B).
9. Governing Law. This Guaranty shall be deemed to have been made under, and shall be governed
by, the laws of the State of Indiana. All proceedings arising in connection with this Guaranty shall be tried and
litigated only in the state courts in Hamilton County, Indiana, or the federal courts with venue that includes
Hamilton County, Indiana. Guarantor waives, to the extent permitted under applicable law: (a) the right to a
trial by jury; and (b) any right Guarantor may have to: (i) assert the doctrine of "forum non conveniens"; or
(ii) object to venue.
10. Miscellaneous. The rights of CRC are cumulative and shall not be exhausted: (a) by its exercise of
any of its rights and remedies against Guarantor under this Guaranty or otherwise; or (b) by any number of
successive actions; until and unless each and all of the obligations of Guarantor under this Guaranty have
been paid, performed, satisfied, and discharged in full. This Guaranty shall not be modified or amended,
except by a writing signed by CRC and Guarantor. This Guaranty shall: (a) bind Guarantor and its
successors, assigns, and legal representatives; and (b) inure to the benefit of all transferees, credit
participants, endorsees, successors, and assigns of CRC; provided that: (a)without the prior written consent
of CRC, Guarantor shall not assign or transfer this Guaranty or any of its obligations hereunder, including,
without limitation, that Guarantor shall not: (i)attempt any such assignment or transfer; (ii)engage in or permit
any transaction or series of transactions that effectively would result in such an assignment or transfer; or
(iii) permit any such assignment or transfer to occur by operation of law or court order; and (b) any such
attempted or purported assignment or transfer shall be void and have no force or effect. As the status or
identity of the parties owning any of the Component Sites,the Kent Project Site,and/or the Office Building Site
changes, the status and identity of the Obligors shall change automatically, without any action by any party,
so that: (a) each Obligor referenced in this Guaranty is the owner of a Component Site, the Kent Project Site,
and/or the Office Building Site and bound by the respective Taxpayer Agreement; and (b) each owner of a
Component Site, the Kent Project Site, and/or the Office Building Site is an Obligor and bound by the
respective Taxpayer Agreement. At the request of CRC,accompanied by execution copies, Guarantor shall
execute and deliver a memorandum of this Agreement for recording.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty this 15'h day of
December, 2014.
PEDCOR INVESTMENT A LIMITED
LIABILITY OMP NY
By:
Printed: �ruGG /` e„,04, /e
Title:
Pies ; 11c1) 4" y- C.b
INDEX TO EXHIBITS
Exhibit A Total Increment Estimate - Year by year
Exhibit B Net worth, liquidity, and reporting requirements
c ARKEI4 CITY:CENTER
A1.11,$$.1V1 E Nt PRO.JECtION S:F00:17)A1*
FAST:10.DISTRICT
..... „ .
.A:ifizni I rig:0.'8...r-ix Rare 1'.;-,s0'.11r1,11-or=p1, 1.113.4550%.•
,,I;ssrring0toyr.11.1.401,-;'41911-2.wtiscss,.....4.lo.te. 0,00.%.
( ifistrIral: 1.4'1901) ...,..,.....,,..._...._,.....,...-.
rgligitaiki,", .
.'.(4P7P111.4S.!=44''' .::.311-x'.1,,..a' '•..Es11NP,TP..);7":•:'
'..t.40,4:44010:**.1.4 ,;T:O.TAti .t*.4.t114=:2;'-:4*00/t$11jk-:
05• 044 1 - Etz-453% -
U/10/14 I - -
1
05/:19/1 5. 1 .. L$4 53%
1 V I.J'If0frtf, i -
[
05141.1.6, [ - i.f4453%, -
II WI iV.W [ - 1.f:4'.■.:3% -
[
09.300
21: .LtilliilY - 1M5.1%, -
1
li. 054048- 1 22691,1 77 4245,3% 209360 1
34 EOM 1 .249107T 1.343•11%: .209;360 I.
I•
05/101111 ; 50 741,C111 118',433';?, 46k1.76.1
I . •- • ' .
41 11/1.0/19 1 10,34.1,913 1.,8453% .464170
I 000/.2:f.k 1 6.3496,265. v845,314, 589,5.39..i
, •...:: . t
.51 1140/20. 1 3896265• ):,-4:53%• 589,539 1
I. 05/19121 i •7491,059 14;4.5,-,,,,,',,: 661A58:1
6 1440/2 I I 71 11 059 1.46.;•.$31,-1-. 661.45.3..
05(10/22. I .7T,..691i59, 1::),:•453%,• 06I15s 1
,... 1
71 14110,722. 1 /I 691•,059, Li,45:1,q',,:
0540/23. I 1.1:691-,951/ 1:84Vi-C, 66145/4 I.
fil 1140123 1 71611059 I.4,433:5‘i .661?451
I
• 0540/24 " 71,691,059
I • " .-661:4Sg 1
91 11/11I0� 4: 71;691;059-: 1.1453%, •661,45.8-1
I .Q.V.10/25: 7491:059: Il1453.% 661445 g:I
. .
WI- 15/1.0it25- -71,691,059: L8453.%. 661,458 I
....,...• .
I 05/10/26, 7091,059. 11.8453%. .661,458 1
111 111.1.0,26: 1 71:691:„059. 1.8454. 661-A58 I
.... .. .. .
0540/27 I 71;690159 LY,4S1v1i. 66144.'": .1
•12-1 1:111 0/27• I 71;691i:059 1.1145,* 6 •1;458•I
. ...
I 05/1-012.g'. 1 It691659.• LA4'j- : 661.,458.i
131 11110/28- I 71.,691,059. 1:84i*: 661;458 I
05/10/29' [ 7-1,6191.4059-; 1-,t4551 i. 46,145,1
141 1:110-0/79. 1 '74091:059: 1:043-41, 661454 ,
r.7:1,691,059: 1--$453%-. 661,458
151 3,1410/30- 1 71,691,059: r...8453%.: .601,458
i 0500131 . 71.,691:,059 1:803.% 058
661 1
f6:1 I 1„/E0R.1 I 7,I,691,059, 1.845Y.vit• 661;08 I
1 ' -
1 05/10/32- i 71;691,059: i W 311,c1:: 66)45:8 I.
IT t1/4.0132-- 1 71,691;059' 10)14' 061:5458 i
I 1101:,059 1.$454 661.458 F
1 -
ill 1 IA 0/33.: 1 1: 71,691;059.: i-g4s3.9A- '661058 1
1. 05/110/34. I 1149059-' 11141513w 61,45&
191 .1140/34' 1. _7091,059 Lg45.3%. •66-.1.,45.8
. 1. 051 0/35:. I 7),69),05(,-)- ImoK, 66l14• 8
20 1.0065:: I. 71;091;059' t',...45.304.' /i61,48
• 05(.0(36. 1 7.1„:691,059: U'153% .66 1:,4 5 8
94. 11 II 0136i. 1 •716 Ci1;059 17.453!-.4. 661.05g
0 5/10(1 I• 1
/ t...6 ,09 i 4454
66 44
221 i VI 037 7191,059 58
04 .2:% .661.4:5g
. _ . . .
04410/118- 7:1;691059' 1 g45.1,'?, .661458 1
231 1140/38. 709059- 1,845 345 661,458 I.
OSA 0/39.• I 7169%059' 443.4.• 661.458 1
241 11110139- I 11014)591 1,A453%, 661.458 1
1 05110140 I 7,1,697i 059'. I.8453.% 661,458
...
':
251' )1110/40.:.. .7jfi91,059 !,:ti.0.3%-..
1 .661-,45-8
28,9921i
.1
EXHIBIT B
Net Worth, Liquidity, and Reporting Requirements
Liquidity
Guarantor must maintain $4,000,000.00 of liquid assets; provided that, in lieu of satisfying this liquidity
requirement, Guarantor may modify the Letter of Credit to provide CRC with the right to draw thereon if there
are defaults under this Guaranty.
For purposes of this Exhibit, liquid assets are cash, bearer instruments, and/or instruments for which there
is an established national market in which the asset can be liquidated and converted into cash within ten
business days.
Net Worth
Guarantor and Pedcor Construction Management, LLC ("Pedcor CM"), must maintain a combined net worth
of at least the amount determined by multiplying the outstanding principal balance of the Bonds at the time
of determination by 1.5(the"Net Worth Minimum"). The determination of whether Guarantor and Pedcor CM,
have maintained the Net Worth Minimum shall be established by the most recent consistently prepared
financial statements of Guarantor and Pedcor CM (each,a Financial Statement"),which Financial Statements
have been audited by a qualified, independent CPA.
Reporting
Guarantor shall maintain consistently prepared financial statements. If Guarantor fails to satisfy the
requirements of this Exhibit, then,within ten days after Guarantor determines that it has failed to satisfy such
requirements, Guarantor shall deliver written notice of such failure to CRC.
Prior to each September 30 during the term of this Guaranty, Guarantor shall provide to CRC a certificate
executed by an executive officer of each of Guarantor and Pedcor CM, pursuant to which certificate each of
Guarantor and Pedcor CM shall certify that, based upon the audited Financial Statements of Guarantor and
Pedcor CM for the annual period ending the immediately previous December 31 (the "Determination Date"),
the combined net worth of Guarantor and Pedcor CM on the Determination Date was equal to, or greater
than, the Net Worth Minimum.