Tri-Party Agreement - 4CDC - $2,500,000 TRI-PARTY AGREEMENT gg
This Tri-Party Agreement(the"Agreement")is executed November?), 2011, by and among
Fowler State Bank, a banking institution having its principal office at 300 East 5'h Street, P.O. Box 511, Fowler,
Indiana 47944 (the "Lender"), Carmel City Center Community Development Corporation, an Indiana
community development corporation having its principal office at One Indiana Square, Suite 1500.
Indianapolis, Indiana 46204 (the "Borrower"), and The City of Carmel Redevelopment Commission, having
its principal office at City of Carmel, Indiana, 30 West Main Street, Suite 220, Carmel, Indiana 46032("CRC").
1. Definitions.
Accrued Interest shall mean the Base Rate Accrued Interest or the Adjusted Rate Accrued Interest, as
applicable.
Adjusted Outstanding Principal Balance shall mean the outstanding amount, on the Loan Purchase Date,
of: (a) the principal amount of the Loan; plus (b) all Lender Fees (including all outstanding Lender Fees that
are owed by Borrower as a result of a Loan Default). In no event shall the Adjusted Outstanding Principal
Balance exceed $2,500,000.00, plus Lender Fees (including all Lender Fees that are owed by Borrower as
a result of a Loan Default).
Adjusted Purchase Price shall mean the sum of: (a) the Adjusted Rate Accrued Interest; and (b) the
Adjusted Outstanding Principal Balance.
Adjusted Rate Accrued Interest shall mean all interest on the Adjusted Outstanding Principal Balance that
has accrued, and remains unpaid, as of the Loan Purchase Date, regardless of whether such interest has
accrued at the Loan Rate or the Default Rate.
Agency shall mean any applicable: (a)governmental agency, board,commission, or department; or(b)other
judicial, administrative, or regulatory body.
Base Outstanding Principal Balance shall mean the outstanding amount, on the Loan Purchase Date, of
(a)the principal amount of the Loan; plus (b) all Lender Fees, to the extent that such Lender Fees have been
incurred in the absence of a Loan Default; provided that such amount specifically shall exclude all Lender
Fees that are owed by Borrower as a result of a Loan Default. In no event shall the Base Outstanding
Principal Balance exceed $2,500,000.00, plus Lender Fees, to the extent that such Lender Fees have been
incurred in the absence of a Loan Default.
Base Purchase Price shall mean the sum of: (a) the Base Rate Accrued Interest; and (b) the Base
Outstanding Principal Balance.
Base Rate Accrued Interest shall mean all interest on the Base Outstanding Principal Balance that has
accrued at the Loan Rate, and remains unpaid, as of the Loan Purchase Date.
Borrower Loan Default shall mean a Loan Default caused by the failure by Borrower to observe or perform
any obligation under the Loan Documents.
City shall mean the City of Carmel, Indiana.
Code shall mean the Internal Revenue Code of 1986, as amended, and the United States Treasury
Regulations in effect with respect thereto.
Collateral Assignment shall mean that certain Collateral Assignment and Security Agreement of even date
herewith executed by and among Borrower, Lender, and CRC.
CRC Financial Statement shall mean the ISBA Audit Report, together with such supplementary financial
information from a Financial Consulting Firm as Lender reasonably may request.
CRC Tri-Party Default shall mean a failure by CRC to observe or perform any obligation to be observed or
performed by it hereunder, and the continuance of such failure beyond any applicable cure period. A CRC
Tri-Party Default shall constitute a Loan Default.
Cure Notice shall mean a written notice pursuant to which CRC notifies Lender that CRC has elected to cure
a default by Borrower that, upon the expiration of applicable cure periods, would constitute a Borrower Loan
Default.
Debt Service shall mean regular(non-default)monthly payments of interest and/or principal due and payable
to Lender pursuant to the Note.
Debt Service/Payment Coverage Ratio shall mean, with respect to a particular calendar year, the ratio of
(a) the difference between: (i) the Increment for that calendar year minus (ii) the amount that will be due
during that calendar year with respect to the Senior Debt; to (b) the amount that will be due during that
calendar year with respect to the Junior Parity Obligations.
Default Rate shall have the meaning set forth in the Note.
Event of Default shall have the meaning set forth in the Collateral Assignment.
Financial Consulting Firm shall mean H.J. Umbaugh or another nationally recognized firm that services as
an independent financial advisor and/or financial consultant to governmental units.
Grant Agreement shall mean that certain Grant Agreement of even date herewith executed by and between
CRC and Borrower with respect to the Loan.
Increment shall mean the allocated property tax proceeds (i.e., the "increment") that, pursuant to
IC§36-7-14-9, is generated from ad valorem real property taxes levied or imposed on or against real property
located within allocation areas that have been established in the City pursuant to IC §36-7-14.
ISBA shall mean the Indiana State Board of Accounts.
ISBA Audit Report shall mean, with respect to a calendar year, the final audit report of the ISBA.
Junior Parity Obligations shall mean indebtedness or contractual obligations of CRC that are payable from
the Increment: (a)after payments due with respect to the Senior Debt; but(b) before any other indebtedness
or contractual obligations of CRC that are payable from the Increment.
Laws shall mean all applicable federal, state, or local laws, statutes, ordinances, rules, or regulations, or any
orders or decrees of any court, agency, or regulatory body.
Lender Fees shall mean regular(non-default)lender fees,costs, and expenses due and payable by Borrower
to Lender under the Loan Documents, including,without limitation, costs and expenses: (a)to close the Loan;
and (b) that, under the terms and conditions of the Loan Documents, expressly constitute Lender Fees.
Loan shall mean a loan consisting of a revolving line of credit extended by Lender to Borrower in accordance
with the terms and conditions of the Loan Documents, which line of credit is in the original principal amount
of$2,500,000.00.
Loan Default shall mean: (a)an"Event of Default"under any of the Loan Documents; provided that, if"Event
of Default"is not a defined term in any Loan Document, then,with respect to such Loan Document,there shall
Z.ADocuments\Shoup,.fenny\City of Carnui\Poev'ler State 13ank\Tri 01 Nuvl I
Parry AureementATri-Party Agrecmenl.wpd -7-
be a Loan Default if Borrower is in default thereunder beyond any applicable notice or cure periods; or (b) a
CRC Tri-Party Default.
Loan Default Notice shall mean a written notice pursuant to which Lender notifies CRC that a Loan Default
exists.
Loan Documents shall mean the documents evidencing and/or securing the Loan, including, specifically,the
Note and the Collateral Assignment.
Loan Interests shall mean: (a)the Loan; (b)the Loan Documents; (c)the collateral assignments and security
interests granted in the Collateral Assignment; and (d) all rights and interests of Lender with respect to the
Loan and under the Loan Documents, including, specifically, the right to: (i) enforce the terms and conditions
of the Loan Documents; (ii) collect the Accrued Interest and the Outstanding Principal Balance; and
(iii)exercise all rights and remedies afforded by the Laws to secured lenders with respect to security interests.
Loan Interests Closing shall mean the closing with respect to the purchase by CRC of the Loan Interests.
Loan Purchase Date shall mean the date on which the Loan Interests Closing occurs.
Loan Purchase Price shall mean the Base Purchase Price or the Adjusted Purchase Price, as applicable.
Loan Rate shall mean the regular(non-default)rate of interest accruing on the Outstanding Principal Balance
pursuant to the Loan Documents. The Loan Rate is the same as the "Prime Based Rate" under the Note.
Maturity Date shall mean the date on which the Outstanding Principal Balance is scheduled to become due
in full pursuant to the Note.
Note shall mean that certain Promissory Note of even date herewith executed by Borrower in favor of Lender
and evidencing the Loan.
Obligations shall mean all obligations, liabilities, and indebtedness of Borrower to Lender now existing or
hereafter arising under, or in connection with, the Loan Documents, together with all: (a) Debt Service and
Lender Fees; (b) other amounts payable to Lender under any of the Loan Documents; and (c) costs,
expenses, and reasonable attorneys' fees incurred by Lender in: (i) the enforcement of any of the Loan
Documents; or (H) the collection of any amounts payable to Lender under any of the Loan Documents;
whether such obligations, liabilities, and indebtedness are direct, indirect, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several.
Ongoing Coverage Threshold shall mean an actual Debt Service/Payment Coverage Ratio of at least
1.25:1.0 for the Prior Calendar Year,as established by CRC Financial Statements for the Prior Calendar Year.
Outside Closing Date shall mean, with respect to the Loan Interests Closing, the date that is 15 days after
Lender delivers the Put Exercise Notice; provided that, in the case of an exercise of the Put Option as a result
of a Borrower Loan Default, the Outside Closing Date shall mean the date that is 15 days after the expiration
of the Standstill Period.
Outstanding Principal Balance shall mean the Base Outstanding Principal Balance or the Adjusted
Outstanding Principal Balance, as applicable.
Prior Calendar Year shall mean, as of any date, the immediately preceding calendar year.
Put Exercise Notice shall mean a written notice pursuant to which Lender notifies CRC that Lender is
exercising the Put Option.
Z:ADocuments\Shoup,Jenny\City of Carmel\Fowler State BankViri U I Na■I I
Party AgreementATri-Party Agreement wpd -3-
Put Option shall mean the option (but not the obligation) of Lender to require CRC to purchase the Loan
Interests from Lender for the Base Purchase Price, except to the extent that Subsection 2(c)(iii) is applicable.
Senior Debt shall mean indebtedness or contractual obligations of CRC that are payable from the Increment,
which indebtedness or contractual obligations have priority over all other indebtedness or contractual
obligations of CRC that are payable from the Increment.
Standstill Period shall mean the period: (a) commencing upon delivery of a Loan Default Notice; and
(b)ending on the last to occur of the date: (i) that is 30 days after delivery of the Loan Default Notice to CRC;
or (ii) of the expiration of the cure period provided to CRC in Section 5. Notwithstanding the foregoing, if
Lender has exercised the Put Option, then the Standstill Period shall end on the first to occur of the date:
(a)determined pursuant to clause(b)of the prior sentence; or(b)on which the Loan Interests Closing occurs;
provided that, if, due to a failure of Lender, the Loan Interests Closing does not occur on or before the Outside
Closing Date, then the Standstill Period shall be extended until the Loan Interests Closing occurs.
2. Put Option.
(a) Put Option. If there is a Loan Default, then the Put Option shall apply. As provided
in the definition of Put Option, the Base Purchase Price shall apply, except in the event that
Subsection 2(c)(iii) is applicable.
(b) Exercise.
(i) Lender shall deliver a Loan Default Notice to CRC concurrently with
any notice provided to Borrower with respect to the Loan Default; provided
that, if Lender: (A) is not obligated to (or otherwise does not) provide any
such notice to Borrower; and(B)intends to exercise any of its remedies with
respect to such Loan Default; then Lender shall deliver a Loan Default
Notice to CRC prior to exercising any such remedies.
(ii) If Lender delivers a Loan Default Notice to CRC, then, at any time
after delivery thereof, Lender may exercise the Put Option by delivering a
Put Exercise Notice to CRC; provided that, notwithstanding anything to the
contrary set forth herein:
(A) if: (1) the underlying Loan Default is a Borrower
Loan Default; and (2) prior to the last to occur of the date:
(aa)that is 30 days after delivery of the Loan Default Notice
to CRC; or(bb) on which the Standstill Period expires; the
Loan Default is cured; or
(B) if: (1) the underlying Loan Default is a CRC
Tri-Party Default; and (2) prior to the last to occur of the
date: (aa) that is 30 days after delivery of the Loan Default
Notice to CRC; or (bb) on which the cure period provided
to CRC in Section 5 expires; the Loan Default is cured;
then: (A) the exercise by Lender of the Put Option shall be deemed to be
rescinded and of no further force or effect; and (B) neither the Outside
Closing Date nor any other term or condition of Subsection 2(c) shall apply.
(iii) Notwithstanding anything to the contrary set forth herein or in the
Z:ADocuments\Shoup,Jenny\City ofCarmel\Powler State Bank Uri 111 1,10,.1 I
Party AgreemenlA i ri-Party Agreement.wpd -4-
Loan Documents, if, prior to the expiration of the Standstill Period, Lender
delivers a Put Exercise Notice to CRC, then Lender shall not exercise any
of its remedies or apply the Default Rate with respect to such Loan Default,
unless, due to a failure of CRC,the Loan Interests Closing has not occurred
as of the Outside Closing Date.
(c) Closing.
(i) If Lender exercises the Put Option, then the Loan Interests Closing
shall occur on or before the date that is 15 days after Lender delivers the
Put Exercise Notice to CRC; provided that, in the case of an exercise of the
Put Option as a result of a Borrower Loan Default (and not a CRC Tri-Party
Default), the Loan Interests Closing shall not occur until the date that is 15
days after the expiration of the Standstill Period.
(ii) At the Loan Interests Closing: (A)CRC shall pay the Loan Purchase
Price to Lender; and (B) Lender shall assign the Loan Interests to CRC
pursuant to assignment documents that: (1) are adequate to vest the Loan
Interests in CRC free and clear of the rights or interests of any other party;
(2) contain certifications by Lender to the effect that Lender is not: (aa) in
default under this Agreement(including, without limitation, that Lender is in
compliance with the terms and conditions of Section 3); and (bb) aware of
any defenses or offsets of Borrower to: (i) enforcement by CRC, as
assignee of Lender, of the Loan Documents; (ii) collection by CRC, as
assignee of Lender, of any amounts due from Borrower under the Loan
Documents; and/or (iii) exercise by CRC, as assignee of Lender, of the
rights and remedies afforded by the Laws to secured lenders with respect
to security interests; and (3) otherwise reasonably are acceptable to CRC.
(iii) Notwithstanding anything to the contrary set forth herein, if: (A) the
applicable Loan Purchase Price is the Base Purchase Price; and (B) due to
a failure of CRC, the Loan Interests Closing does not occur on or before the
Outside Closing Date; then the applicable Loan Purchase Price
automatically shall become the Adjusted Purchase Price.
3. Prohibitions. In each case, subject to the terms and conditions of this Agreement:
(a) In the case of a Borrower Loan Default, Lender shall not accelerate the Maturity Date
or the payment of all or any portion of the Outstanding Principal Balance, unless and until
Lender has complied with the terms and conditions of Section 5 and either: (i)CRC does not
elect to cure the applicable default by Borrower within the time permitted pursuant to
Section 5; or (ii) CRC: (A) timely elects to cure such default by Borrower; but (B) does not
complete the foregoing within the time permitted pursuant to Section 5.
(b) Lender shall not: (i) require payments by Borrower of all or any portion of the
Outstanding Principal Balance, except: (A) in accordance with the terms and conditions of
the Note with respect to regular payments of interest; (B) when Lender would be entitled
under Subsection 3(a) to accelerate the Maturity Date; or (C) on the Maturity Date; or
(ii)condition acceptance of a prepayment upon receipt of a prepayment premium or penalty,
except in accordance with the terms and conditions of the Loan Documents.
(c) Lender shall not modify, amend, or revise any of the Loan Documents to: (i)increase
the default rate of interest to an amount that exceeds the Loan Rate plus 4%; (ii) increase
the Loan Rate; (iii) change the terms with respect to payment or prepayment of the
/.:ADocurnents\Shoup,JennyACity ofCarmel\Fowler State Bank Vi ri I)Wog I I
Party Agreement A i ri-Party Ag•cement.'pd -5-
Outstanding Principal Balance; (iv) increase or materially change Borrower's obligations
under the Loan Documents; or(v)decrease or materially change Borrower's rights under the
Loan Documents; provided that, notwithstanding the foregoing, the parties agree that Lender
may modify, amend, or revise any of the Loan Documents to the extent necessary to bring
the Loan Documents into compliance with the Laws.
(d) Lender shall not advance Loan proceeds in excess of: (i)$2,500,000.00; plus(ii)the
amount of the Lender Fees; provided that, if the Loan Purchase Price has become the
Adjusted Loan Purchase Price as provided in Subsection 2(c)(iii), then Lender may advance
additional Loan proceeds in accordance with the terms and conditions of the Loan
Documents. Notwithstanding anything to the contrary set forth herein, when Lender Fees
become due, Lender shall notify CRC and CRC shall have the option either to: (i) pay the
amount of such Lender Fees directly to Lender(in which case such amount shall not become
part of the Outstanding Principal Balance); or (H) authorize Lender to disburse to itself the
amount of such Lender Fees.
(e) Lender shall not waive, release, delete, or compromise the terms or conditions of
Subsections 7(c), 9(b), 10(g), 10(h), 10(i), 10(j), 10(m), and/or 10(n) of the Collateral
Assignment(or any of the corresponding Subsections in any other Loan Document)or waive
or release an Event of Default under any of the foregoing Subsections (or any of the
corresponding Subsections in any other Loan Document).
(f) Lender shall not waive, release, delete, or compromise the obligations of Borrower
to pay the Accrued Interest or the Outstanding Principal Balance, except: (i) in compliance
with the terms and conditions of this Agreement; or(ii) if the Loan Purchase Price is reduced
commensurately.
(g) Lender shall not consent to Borrower directly or indirectly selling, transferring,
assigning, conveying, pledging, or otherwise delegating or disposing of its interests in or to,
its rights to or under, or its obligations under or for, the Loan or the Loan Documents.
(h) Lender shall not modify, amend, or revise any of the Loan Documents (or waive,
release, delete, or compromise the rights and remedies of Lender thereunder) so that, if the
Loan Interests were assigned to CRC, the Loan Documents would not provide to CRC, as
assignee, the right to: (i)collect the Accrued Interest and the Outstanding Principal Balance;
and (H)exercise all rights and remedies afforded by the Laws to secured lenders with respect
to security interests.
(i) Lender shall not modify, amend, or revise any of the Loan Documents to: (i) expand
or enlarge the categories or types of costs, expenses, fees, or charges that may be incurred
by Lender or charged to Borrower; or (H) otherwise add to or supplement such costs,
expenses, fees, or charges.
(j) Lender shall not directly or indirectly sell, transfer, assign, convey, pledge, or
otherwise delegate or dispose of its interests in or to, or its rights to or under, any of the Loan
Interests,except subject to the terms and conditions of this Agreement and the rights of CRC
hereunder.
4. Affirmative Covenants.
(a) CRC. CRC acknowledges and agrees that, until: (i) all of the Obligations are paid
and satisfied in full; and (H) the Maturity Date has occurred; CRC at all times shall comply
with the covenants and agreements set forth in this Subsection.
Z\DocumentsvShoup,Jenny\City or Carmel\Powlcr State I3ank\Tri 0I Nov I I
Party Agreement Uri-Party Agrecmcnt.wpd -6-
(i) CRC shall comply with all Laws in the performance of its obligations
under this Agreement.
(ii) CRC shall meet the Ongoing Coverage Threshold, measured
annually, as of the end of each calendar year.
(iii) As soon as reasonably is practicable, but in all events within 60
days after issuance by the ISBA and receipt thereof by CRC, CRC shall
provide the ISBA Audit Report to Lender.
(iv) As soon as reasonably is practicable after receipt of written request
from Lender from time to time, CRC shall provide such additional
information with respect to CRC's operations (including current financial
statements) as Lender reasonably may request.
(v) If:
(A) any proceeding, inquiry,or investigation is pending
or threatened against CRC or any property of CRC, an
adverse decision with respect to which would materially
and adversely affect the ability of CRC to perform its
obligations under this Agreement; or
(B) there is any material adverse change to the
business, operations,or financial condition of CRC that will
have a material and adverse affect on the ability of CRC to
perform its obligations under this Agreement;
then CRC shall: (A)notify Lender promptly in writing;(B)prepare and submit
to Lender for its reasonable approval a written plan for addressing and/or
responding to such proceeding, inquiry, investigation, or material adverse
change; and (C) address and/or respond to such proceeding, inquiry,
investigation, or material adverse change in accordance with the plan
approved by Lender.
(vi) CRC shall take all actions necessary to maintain the truth and
accuracy in all respects of all representations and warranties made by CRC
in this Agreement.
(b) Borrower. Borrower acknowledges and agrees that, until: (i) all of the Obligations
are paid and satisfied in full; and (ii) the Maturity Date has occurred; Borrower at all times
shall comply with the covenants and agreements set forth in this Subsection.
(i) Borrower shall comply with all Laws in the: (A) conduct of its
business and other operations; and(B)performance of its obligations under
this Agreement and the other Loan Documents.
(ii) Borrower shall keep in full force and effect,without any violations by
Borrower, any and all filings or registrations with any Agency necessary in
connection with the performance by Borrower of its obligations under this
Agreement or the other Loan Documents.
(iii) As soon as reasonably is practicable after receipt of written request
from Lender from time to time, Borrower shall provide such additional
1.ADocumonts\Shoup,.1cnnvACity of CarmelVFowler State 13ank\Tri 0I N' I I
('arty AgreementVrri-Puny Agreement.wpd —7—
information with respect to Borrower's operations(including current financial
statements) as Lender reasonably may request.
(iv) If:
(A) any proceeding, inquiry,or investigation is pending
or threatened against Borrower or any property of
Borrower, an adverse decision with respect to which would
materially and adversely affect the business,operations, or
financial condition of Borrower, and/or the ability of
Borrower to perform its obligations under the Loan
Documents; or
(B) there is any material adverse change to the
business, operations, or financial condition of CRC that will
have a material and adverse affect on the ability of CRC to
perform its obligations under the Loan Documents;
then Borrower shall: (A) notify Lender promptly in writing; (B) prepare and
submit to Lender for its reasonable approval a written plan for addressing
and/or responding to such proceeding, inquiry, investigation, or material
adverse change; and (C) address and/or respond to such proceeding,
inquiry, investigation, or material adverse change in accordance with the
plan approved by Lender.
(v) Borrower shall pay and discharge when due all of its debts,
liabilities, and obligations; provided that Borrower shall have the right to
contest any such debts, liabilities, or obligations by appropriate legal
proceedings that operate to prevent any execution for the same, if:
(A) Borrower provides to Lender a bond or other assurance or security
satisfactory to Lender, or provides to Lender evidence of an adequate
reserve to pay such debts, liabilities, and/or trade obligations; and
(B) Borrower diligently pursues such contest to completion.
(vi) Borrower shall keep and maintain its places of business and chief
executive offices, at the address or addresses set forth in Exhibit A, unless
Borrower provides to Lender written notice of any change at least three
business days in advance of such change. Borrower shall provide to Lender
written notice of any subsequent change of address at least three business
days in advance of such change.
(vii) Borrower shall take all actions necessary to maintain the truth and
accuracy in all respects of all representations and warranties made by
Borrower in this Agreement or in any other Loan Document.
(viii) Borrower shall: (i) pay when due the principal of, or interest on, the
Loan; and (ii) fully and promptly pay and perform when due the other
Obligations.
5. CRC Cure Right.
(a) Notices. Lender shall provide to CRC copies of all notices of defaults delivered to
Borrower pursuant to the Loan Documents, which copies shall be delivered simultaneously
with the notice delivered to Borrower; provided that, if no notice of default is required to be
L:AIkteuments\Shoup,,fenny\City of Carmel\fowler State Bank Uri 0 l Nun I I
Party Agreement Yi r-Party Agreement.wpd -8-
delivered to Borrower prior to a default becoming a Loan Default, then, prior to exercising any
of its remedies under the Loan Documents or applying the Default Rate with respect to the
default, Lender shall deliver written notice to CRC.
(b) Default. If such notice is for a default that, upon the expiration of applicable cure
periods, will constitute a Borrower Loan Default (as opposed to a CRC Tri-Party Default),
then CRC shall have the option (but not the obligation) to cure such default; provided that,
to exercise such option, CRC shall deliver a Cure Notice to Lender on or before the date that
is 30 days after CRC receives notice from Lender of the existence of such default. If CRC
timely elects to cure the default, then CRC shall effectuate the cure within 30 days after
delivery of the Cure Notice; provided that, if such default is of a nature that it reasonably
cannot be cured within 30 days,then, so long as CRC commences the cure within the 30 day
period, the period for completing the cure shall be extended for as long as CRC diligently is
pursuing such completion, which extension shall not exceed a period of 90 days.
(c) Standstill. Notwithstanding anything to the contrary set forth in the Loan Documents,
until the expiration of the Standstill Period, Lender shall not exercise any of its remedies
under the Loan Documents or apply the Default Rate with respect to any default that, upon
the expiration of applicable cure periods,will constitute a Borrower Loan Default(as opposed
to a CRC Tri-Party Default). If CRC cures a default by Borrower pursuant to this Section,
then: (i) Lender shall accept such cure by CRC as a cure by Borrower; (ii) Lender shall not
exercise any of its remedies under the Loan Documents with respect to the default, as cured
or addressed by CRC; and (iii) Borrower, immediately upon receipt of written demand, shall
reimburse CRC for all costs and expenses incurred by CRC in connection with effectuating
such cure.
6. Representations.
(a) CRC. CRC makes the representations and warranties set forth in this Subsection.
(i) No actions, whether voluntary or otherwise, are pending against it
(and no petition has been filed by or on behalf of it) or any of its members
under the bankruptcy or insolvency laws of the United States or any state
thereof.
(ii) CRC is, and shall continue to be, a redevelopment commission
validly existing under the laws of the State of Indiana.
(iii) CRC has taken the necessary actions to authorize the execution
and delivery of this Agreement, and no term or condition of this Agreement
contravenes, or is in conflict with, any resolution of CRC.
(iv) This Agreement: (A)constitutes a legal,valid,and binding obligation
of CRC; and (B) is enforceable in accordance with its terms and conditions
and the Laws.
(v) None of the execution and delivery of, consummation of the
transactions and borrowing contemplated in, or compliance with the terms
and conditions of, this Agreement conflicts with, or constitutes a default
under or a violation of: (A) any of the terms or conditions of any contract or
other instrument to which CRC is a party; or (B) any Law.
(vi) CRC is not in default in the performance, observance, or fulfillment
of any of the terms or conditions of any contract or other instrument to which
Z:Ai) currents\Shoup,Jenny\City of Carmel\fowler Stale Bank Uri III Nov l I
Party Ae:cementATri-Party Agreemenl.wpd -9-
it is a party, or by which it is bound, the result of which default would
adversely affect the ability of CRC to perform its obligations under this
Agreement.
(vii) All financial statements and other financial data that have been
furnished to Lender by CRC: (A) are true, correct, and accurate in all
material respects; and (B) reflect fairly the financial condition of CRC.
(viii) CRC is not "insolvent" (as defined in Section 101 of the Federal
Bankruptcy Code).
(ix) No filing or registration with any Agency is necessary in connection
with: (A) the execution and delivery by CRC of this Agreement; or (B) the
performance by CRC of its obligations under this Agreement.
(x) No proceeding, inquiry, or investigation is pending or, to the best of
CRC's knowledge, threatened against, or affects, CRC or any property of
CRC, an adverse decision with respect to which would adversely affect the
ability of CRC to perform its obligations under this Agreement.
(b) Borrower. Borrower makes the representations and warranties set forth in this
Subsection.
(i) No actions, whether voluntary or otherwise, are pending against it
(and no petition has been filed by or on behalf of it) or any of its general
partners, members, or controlling shareholders under the bankruptcy or
insolvency laws of the United States or any state thereof.
(ii) Borrower is, and shall continue to be: (A) a 501(c)(4) tax-exempt,
non-profit organization under the Code; (B) a community development
corporation organized and validly existing under the laws of the State of
Indiana; and (C) qualified to do business in the State of Indiana and each
other jurisdiction where such qualification is required. Borrower is not a
"foreign corporation","foreign partnership","foreign trust",or"foreign estate"
(as those terms are defined in the Code).
(iii) Borrower has taken the necessary actions to authorize the
execution and delivery of this Agreement and all other Loan Documents,
and no term or condition of this Agreement or any other Loan Document
contravenes, or is in conflict with, the organizational documents or any
resolutions of Borrower.
(iv) Upon execution and delivery of the Loan Documents, each of the
Loan Documents shall: (A) constitute a legal, valid, and binding obligation
of Borrower: and (B) be enforceable in accordance with its terms and
conditions, except as the same may be limited by bankruptcy, insolvency,
or similar laws generally affecting the enforcement of creditors' rights.
(v) None of the execution and delivery of, consummation of the
transactions and borrowing contemplated in, or compliance with the terms
and conditions of,this Agreement or any other Loan Document shall conflict
with, or constitute a default under or a violation of: (A) any of the terms or
conditions of any contract or other instrument: (1) to which Borrower is, or
will be, a party; (2) by which Borrower, or any asset of Borrower, is or may
%\Documents\Shoup,Jcnnv\City 01 Carnul\Powlcr Stott:13ank\Tri It I Novi
('arty AyrccmcntATri-Party wpd -10-
be bound; or (3) to which Borrower is subject; or (B) any Law.
(vi) Borrower is not a party to, or bound by, any contract or other
instrument that materially and adversely affects, or will affect, the business,
operations, or financial condition of Borrower. Borrower is not in default in
the performance, observance, or fulfillment of any of the terms or conditions
of any contract or other instrument to which it is a party, or by which it is
bound, the result of which default would adversely affect: (A) the business,
operations, or financial condition of Borrower; or(B) the ability of Borrower
to perform its obligations under this Agreement or any other Loan
Document.
(vii) All financial statements and other financial data that have been, or
shall be, furnished to Lender by Borrower: (A) are, and shall be, true,
correct, and accurate in all material respects; and (B) reflect, and shall
reflect, fairly the financial condition of Borrower. All such statements have
been, and shall be, prepared in accordance with generally accepted
accounting principles consistently applied.
(viii) Borrower is not"insolvent"(as defined in Section 101 of the Federal
Bankruptcy Code).
(ix) No filing or registration with any Agency is necessary in connection
with: (A) the execution and delivery by Borrower of this Agreement and the
other Loan Documents; or (B) the performance by Borrower of its
obligations under this Agreement or the other Loan Documents.
(x) No proceeding, inquiry, or investigation is pending or, to the best of
Borrower's knowledge, threatened against, Borrower or any property of
Borrower, an adverse decision with respect to which would adversely affect
the business, operations, or financial condition of Borrower.
(xi) Borrower is not, and shall not be, engaged principally, or as one of
its significant activities, in the business of extending credit for the purpose
of purchasing or carrying any margin stock (as defined in Regulation U of
the Board of Governors of the Federal Reserve System). No part of the
proceeds of the Loan has been, or shall be, used to: (A) purchase or carry
any margin stock; or (B) extend credit to others for the purpose of
purchasing or carrying any margin stock. If requested by Lender, Borrower
shall furnish to Lender a statement in conformity with the requirements of
Federal Reserve Form U-1. No part of the proceeds of the Loan has been,
or shall be, used for any purpose that violates or is inconsistent with the
provisions of Regulations G, U, or X of the Board of Governors of the
Federal Reserve System.
(xii) The places of business of Borrower, and its chief executive offices,
are located at the address or addresses set forth in Exhibit A.
(xiii) All information furnished by Borrower to Lender prior to the date
hereof is true, accurate, and correct in all material respects.
All representations, warranties, and agreements made by CRC or Borrower under, or in connection with, this
Agreement or any other Loan Document shall: (a) be deemed to be effective as of the date hereof: and
(b) survive the making of the Loan and issuance and delivery of the Note to Lender; notwithstanding any
Z-ADocuments\Shoup,Jenny\City orCarmel\fowler State l3ankUri a I No,I I
Party AgreementV i'ri-Party A rcement.wpd —1 1—
investigation or inquiry made by or on behalf of Lender. All statements contained in any certificate or financial
statement delivered by CRC or Borrower to Lender shall constitute representations and warranties made by
CRC or Borrower, respectively, hereunder. Each of CRC and Borrower acknowledges that Lender is relying,
and is entitled to rely, upon each of the representations, warranties, and agreements made by CRC and
Borrower, respectively, in this Agreement and any other Loan Document in deciding to: (a) close the Loan,
and disburse proceeds of the Loan; and (c) execute and deliver, and perform its obligations under, the Loan
Documents. The obligation of Lender to disburse proceeds of the Loan shall be subject to, and conditioned
upon,the truth and accuracy of each of the representations,warranties and agreements in this Section, unless
expressly waived by Lender in writing.
7. CRC Consent. CRC: (a) consents to the collateral assignment of the Grant Agreement to Lender
as security for the Loan; (b) agrees to execute such documents as Lender reasonably may require to effect
or confirm: (i) such collateral assignment; and (ii) the security interest of Lender in the Grant Agreement;
(c)agrees that, pursuant to the Collateral Assignment, Lender shall have the right, as if Lender were in direct
privity with CRC,to enforce the obligations of CRC under the Grant Agreement until the first to occur of: (i)the
Maturity Date (and repayment in full of the Loan); or(ii)the date on which CRC purchases the Loan Interests
and pays the Loan Purchase Price in full; and (d) agrees that neither the Grant Agreement, nor the right of
Lender to enforce the obligations of CRC under the Grant Agreement, shall terminate until the first to occur
of: (i)the Maturity Date (and repayment in full of the Loan); or(ii)the date on which CRC purchases the Loan
Interests and pays the Loan Purchase Price in full.
8. Liability Statement. The Loan: (a) is not a loan to, or indebtedness of, CRC; and (b)is a loan to, and
indebtedness of, Borrower (and not CRC). To induce Lender to make the Loan, CRC, in accordance with
§IC36-7-14, has agreed to undertake certain limited obligations under this Agreement.
9. Assignment. No party shall assign this Agreement, or its rights or obligations hereunder,without the
prior written consent of each of the other parties; provided that: (a) without the prior written consent of
Borrower or Lender, CRC may assign this Agreement to another agency or instrumentality of the City, of equal
or superior creditworthiness and financial capacity to perform the obligations of CRC hereunder, as
established to the reasonable satisfaction of Lender; and (b)without the prior written consent of Borrower or
CRC, Lender may assign this Agreement to any successor to which all or a portion of the Loan Interests are
assigned, so long as the assignment is subject to the terms and conditions of this Agreement and the rights
of CRC hereunder. Notwithstanding any assignment permitted under this Section: (a)each party shall remain
liable to perform all of the terms and conditions to be performed by it under this Agreement; and (b) the
consent of the other parties with respect to an assignment shall not release the assigning party from such
performance.
10. Deliveries. Each party shall execute and deliver such additional documents and instruments as
reasonably may be required by the other parties to accomplish the purposes of this Agreement.
11. Indemnity. Each of Lender, Borrower, and CRC shall indemnify and hold harmless the other parties
from and against any and all claims, liabilities, losses, damages, costs, and expenses (including, without
limitation, reasonable attorneys' fees) arising from, or in connection with the breach by Lender, Borrower, or
CRC, respectively, of any term or condition of this Agreement.
12. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in
writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by
facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with
confirmation of receipt, addressed as follows, to: (a) Lender at 300 East 5'h Street, P.O. Box 511, Fowler,
Indiana 47944, Facsimile: 765-884-3239, Attention: Steven T. Pettet, with a copy to Jerimi J. Ullom, Hall
Render, Killian, Heath&Lyman, One American Square, Suite 2000, Box 82064, Indianapolis, Indiana 46282,
Facsimile: 317-633-4878; (b) Borrower at One Indiana Square, Suite 1500, Indianapolis, Indiana 46204,
Facsimile: 317-231-9900, Attn: Ryan Wilmering, with a copy to 30 West Main Street, Suite 220, Carmel,
Indiana 46032, Facsimile: 317-844-3498, Attn: Les Olds; and (c) CRC at 30 West Main Street, Suite 220,
Z_ADocuments\Shoup,Jenny\City of Carmel\Fowler State Bank Uri (II Noy II
Party AgreementATri-Party Agreement.wpd —1 2
Carmel, Indiana 46032, Facsimile: 317-844-3498, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., Wallack
Somers&Haas, PC, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204, Facsimile:317-231-9900.
Any party may change its address for notice from time to time by delivering notice to the other parties as
provided above.
13. Authority. Each undersigned person executing this Agreement on behalf of Lender, Borrower, and
CRC represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary
action of Lender, Borrower, and CRC, respectively, to execute and deliver this Agreement; (b) he or she has
full capacity, power, and authority to enter into and carry out this Agreement; and (c) the execution, delivery,
and performance of this Agreement have been authorized by Lender, Borrower, and CRC, respectively.
14. Severability. If any one or more of the terms or conditions of this Agreement is determined to be
invalid, then: (a) such invalidity shall not affect any other term or condition of this Agreement; and (b) this
Agreement shall be construed as if such invalid term or condition had never existed. The invalidity of any term
or condition of this Agreement in any jurisdiction shall not affect the validity of such term or condition in any
other jurisdiction.
15. Applicable Law. The validity, construction, interpretation, and enforcement of this Agreement shall
be governed by, and construed in accordance with, the laws of the State of Indiana, without regard to
principles of conflicts of law. All actions or proceedings arising in connection with this Agreement shall be tried
and litigated only in the state courts located in Hamilton County, Indiana, or the federal courts with venue that
includes Hamilton County, Indiana. The parties waive, to the extent permitted under applicable law: (a) the
right to a trial by jury; and (b) any right to assert the doctrine of"forum non conveniens" or to object to venue;
in either case to the extent any proceeding is brought in accordance with this Section.
16. Miscellaneous. Subject to the terms and conditions of Section 9, this Agreement shall inure to the
benefit of, and be binding upon, each of Lender, Borrower, and CRC, and their respective successors and
assigns. If there is a conflict between the terms or conditions of this Agreement and any of the other Loan
Documents, then the terms and conditions of this Agreement shall control. The captions used in this
Agreement are for convenience only and are not to be construed as defining or limiting the terms and
conditions of this Agreement. This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof, and may be modified, amended, or revised only by a written agreement
signed by each of the parties. This Agreement may be executed in counterparts, each of which shall be an
original, but all of which, when taken together, shall constitute the same agreement. All Exhibits referenced
herein are attached hereto and incorporated herein by reference.
Z:ADocuments\Shoup,Jenny\City of Carmel\i owler State BankV'rri 01 No I I
Party AgreementATri-Party Agreement.wpd —1 3-
IN WITNESS WHEREOF, Lender, Borrower, and CRC have executed this Agreement as of
the date set forth above.
FOWZTATE BA
By
even T. Pette resident/CEO
CARMEL CITY CENTER COMMUNITY
DEVELOPMENT CORPORATION
By: --- —
Richard F. Taylor III, President
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
William Hammer, President
Z:\Documents\Shoup,Jenny\City of Carmel\Fowler State 31 Octl l
Bank\Tri-Party Agreement.wpd -14-
IN WITNESS WHEREOF, Lender, Borrower,and CRC have executed this Agreement as of
the date set forth above.
FOWLER STATE BANK
By:
Steven T. Pettet, President/CEO
CARMEL CITY CENTER COMMUNITY
DEVELOPM T CORPORATION
By: _ Y
Richard F. Taylor III, Pr:si.-nt
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
William Hammer, President
Z:\Documents\Shoup,Jenny\City of Carmel\Fowler State Bank\Tri 01Nov1 1
Party Agreement\Tri-Party Agreement.wpd -14-
IN WITNESS WHEREOF, Lender, Borrower, and CRC have executed this Agreement as of
the date set forth above.
FOWLER STATE BANK
By:
Steven T. Pettet, President/CEO
CARMEL CITY CENTER COMMUNITY
DEVELOPMENT CORPORATION
By:
Richard F. Taylor III, President
THE CITY OF CARMEL
REDEVELOPMENT •MMISSION
l /
By ��►.�. � !iLil'��J
William Hammer, 'r-sc.ent
Z:ADocuments\Shoup,JennyVCity of Carmel\Fowler State Bank\Tri 01 Nov 1 I
Pany Agreement\Tri-Party Agrcemcnt.wpd -14-
EXHIBIT A
Addresses of Borrower's places of business and chief executive offices
One Indiana Square
Suite 2300
Indianapolis, Indiana 46204
or
30 West Main Street
Suite 220
Carmel, Indiana 46032
7.:AIhtcuments\Shoup,Jenny\City ofCarmcl\Fowler State ISank\Tri III No I I
Party Agreement Uri-Party Ag•cement.wpd -1 J-