Wallack Somers & Haas - RE: Revolving Line of Credit to 4CDC •
WALLACK BARRY Z.WALLACK
MICHAEL S.WALLACK
•
SOMERS GEORGE W.SOMERS
KARL P.HAAS
& HAAS PC JENNIFER R.SHOUP
HARRY F.TODD
Attorneys at Law
RYAN R.WILMERING
November 8, 2011
The City of Carmel Redevelopment Commission
Fowler State Bank
300 East 5`h Street
P.O. Box 511
Fowler, Indiana 47944
Hall, Render, Killian, Heath & Lyman, P.C.
Suite 2000, Box 82064
One American Square
Indianapolis, IN 46282
Re: Revolving Line of Credit (the "Loan") from Fowler State Bank (the "Lender") to
Carmel City Center Community Development Corporation ("the Borrower").
Ladies and Gentlemen:
We are counsel for The City of Carmel Redevelopment Commission ("CRC"), which is a
redevelopment commission established by the Common Council of the City of Carmel, Indiana, pursuant to
Indiana Code 36-7-14, as amended.
A. Documents Executed. In connection with the making by Lender of the Loan to Borrower, CRC has
executed the following documents:
1. Collateral Assignment and Security Agreement of even date herewith executed by
and among Lender, Borrower, and CRC (the "Collateral Assignment");
,2. Grant Agreement of even date herewith executed by and between CRC and
Borrower (the "Grant Agreement"); and
3. Tri-Party Agreement of even date herewith executed by and among Lender,
Borrower, and CRC (the "Tri-Party Agreement").
The Collateral Assignment, the Grant Agreement, and the Tri-Party Agreement, collectively, are the
"Agreements".
B. Documents Reviewed. In connection with the execution by CRC of the Agreements and rendering
this opinion, we have examined the following documents:
1. Resolution Certificate (the "Certificate") of even date herewith with respect to CRC
One Indiana Square, Suite 2300
Indianapolis, Indiana 46204
Tel: 3 1 7.231.9000 www.WSHLaw.com Fax: 317.231.9900
Resolution 2011-9 (the "Resolution");
2. All other proceedings of CRC in connection with the Agreements and the Loan;
3. The executed Agreements,together with all exhibits attached to the Agreements;and
4. Such laws of the State of Indiana as are necessary in order to render this opinion.
C. Opinions Rendered. Based upon the foregoing, in reliance upon the representations set forth in the
Certificate,and subject to the qualifications,assumptions,and exceptions set forth below,it is our opinion that:
1. CRC has been created and is validly existing under the provisions of Indiana
Code 36-7-14, as amended, with the power and authority to: (a) enter into the Agreements;
and (b) satisfy its obligations under the Agreements.
2. All proceedings and actions had, taken, or approved by CRC with regard to: (a) the
authorization, execution, and delivery of the Agreements; and/or (b) the payment or
performance by CRC of its obligations under the Agreements; comply with all applicable laws
of the State of Indiana, and with all applicable resolutions, by-laws, rules, and regulations of
CRC (including, without limitation, the Resolution).
3. None of the proceedings or actions had, taken, or approved by CRC with regard to:
(a) the authorization, execution, and delivery of the Agreements; or (b) the payment or
performance by CRC of its obligations under the Agreements;has been amended, repealed,
rescinded, or revoked (including, without limitation, that the Resolution remains in full force
and effect).
4. None of: (a)the authorization, execution, and delivery of the Agreements; or(b)the
payment or performance by CRC of its obligations under the Agreements; violates any
judgment, order, agreement, or other instrument to which CRC is subject.
5. The Resolution validly authorizes: (a)the execution and delivery of the Agreements;
and (b) the payment or performance by CRC of its obligations under the Agreements. The
Agreements: (a) have been validly executed and delivered by CRC; and (b) are valid and
binding obligations of CRC that, to the full extent permitted by Indiana law, are enforceable
against CRC in accordance with their terms.
6. No litigation of any nature currently is pending or threatened against CRC that seeks
to enjoin or challenge: (a) the authorization, execution, and delivery of the Agreements;
(b) the payment or performance by CRC of its obligations under the Agreements; (c) any
proceedings or actions had, taken, or approved by CRC with regard to the foregoing; or
(d) the validity of the Agreements or the Resolution.
7. To the best of our knowledge,the statements contained in the Certificate are correct.
D. Assumptions. For purposes of this opinion, we have assumed (without independent verification or
investigation) or are otherwise relying upon the following:
1. Lender: (a) is organized and existing under the laws of the State of Indiana; (b) is
authorized to conduct business in the State of Indiana; (c) is qualified to engage in the
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transactions contemplated by the Agreements and all other documents evidencing and/or
securing the Loan (the"Loan Documents"); and (d) has the requisite power and authority to
perform its obligations under the Agreements and all other Loan Documents.
2. The: (a)execution and delivery of the Agreements and all other Loan Documents to
be executed by Lender; and (b) performance by Lender of all obligations under the
Agreements and all other Loan Documents to be executed by Lender; have been authorized
on behalf of Lender.
3. The Agreements and all other Loan Documents to be executed by Lender: (a) have
been validly executed and delivered by Lender; and (b) constitute valid and binding
obligations of Lender that are enforceable against Lender in accordance with their terms.
4. The execution and delivery of the Agreements and all other Loan Documents
executed by Lender were free of intentional or unintentional mistake, undue influence,
duress, fraud, illegality, or criminal activity.
5. Neither Lender nor Lender's attorney has any current actual knowledge of any
reason why any portion of this opinion letter is not accurate.
E. Qualifications. The opinions expressed herein are qualified in their entirety as follows:
1. We are members of the Bar of the State of Indiana, and our opinion relates only to:
(a)the laws of the State of Indiana; and (b)the federal laws of the United States of America;
that currently are in effect and, in our experience, normally are applicable to CRC and the
transactions in which it engages(the"Applicable Laws"). We express no opinion with respect
to any laws other than the Applicable Laws. Accordingly, we express no opinion as to:
(a) compliance with applicable foreign laws; or (b) federal or state securities, anti-fraud,
anti-trust, restraint of trade, or tax statutes, or the rules and regulations promulgated
thereunder.
2. Whenever in our opinion the existence or absence of facts is indicated to be based
on our knowledge, this shall mean that: (a) during the course of our representation of CRC,
no information has come to our attention that would give us current actual knowledge of the
existence or absence of such facts; and (b) we have not undertaken any independent
investigation to determine the existence or absence of such facts;and no inference as to our
knowledge of the existence or absence of such facts otherwise should be drawn from our
representation of CRC.
3. The enforceability of the Agreements may be limited by: (a) the rights of the United
States of America under federal laws to which the laws of the State of Indiana are
subordinate;(b)bankruptcy, insolvency, preference, reorganization, moratorium, liquidation,
and other laws relating to, or affecting, the rights or remedies of creditors and/or relief of
debtors, including, without limitation, fraudulent transfer laws; and (c) general principles of
equity, that may be considered in a proceeding at law or in equity, including, without
limitation, concepts of materiality, marshaling, reasonableness, good faith, and fair dealing,
and other doctrines affecting the enforceability of governmental agreements generally.
4. The: (a) enforceability of the remedies provided by the Agreements; and (b) the
availability of equitable remedies; may be limited where a court of competent jurisdiction finds
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that such remedies were at the time made, or are in application, unconscionable as a matter
of law or contrary to public policy. The enforcement of specific rights under the Agreements
may require: (a) a judgment or decree of a court of competent jurisdiction after prior notice
to CRC; and(b)an opportunity for CRC to be heard by an appropriate tribunal. Enforcement
of rights and remedies may be conditioned upon the conduct of Lender conforming with any
applicable implied covenant of good faith and fair dealing, notwithstanding any language in
the Agreements reserving to Lender, either specifically or in effect, the right to take certain
specified actions in its sole or absolute discretion.
5. We express no opinion as to the enforceability of any provision of the Agreements
that obligates CRC to pay a late charge on overdue payments or an early termination
settlement. To our knowledge,there is no statute in Indiana that either authorizes or prohibits
the collection of a late payment charge or an early termination settlement. Although a late
payment charge or an early termination settlement may constitute consideration paid in
exchange for waiver of the right to refuse a late payment or an early termination, late
payment charges and early termination settlement may be subject to challenge as
unenforceable penalties. We also express no opinion as to: (a) the enforceability of any
provision of any Loan Document other than the Agreements; or (b) the availability of any of
the remedies under any of the Loan Documents other than the Agreements. We further
advise you that certain waivers or releases of rights may be unenforceable or of limited
efficacy. Notwithstanding the qualifications set forth in this paragraph, the provisions
described in this paragraph will not affect the overall validity of the Agreements or, subject
to the other qualifications set forth above, render the Agreements inadequate for the practical
realization by Lender of the principal benefits intended to be provided to Lender thereunder.
This letter is limited to the specific issues addressed herein,and the opinions rendered herein
are limited in all respects to laws and facts existing on the date hereof. No opinion is expressed with respect
to any changes that may occur in such laws and facts after the date of this letter. By rendering this opinion,
we do not undertake to advise you with respect to: (a)any other matter; (b)any change in such laws or facts;
or (c) any change in the interpretations of such laws; that may occur after the date hereof.
This letter: (a) is furnished to you for your benefit may be relied upon by you and your
successors, assigns, and participants in connection with making the Loan to Borrower; and (b) is not to be
used, circulated, quoted in whole or in part, referred to (except in a list of closing documents), or otherwise
relied upon, nor is it to be filed with any governmental agency or other person,without our prior written consent
in each instance.
Very truly yours, f
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Wallack Somers & Haas, PC
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