HomeMy WebLinkAboutFee Deferral Agreement/Indiana Spine Group/Browning Investments/CRC FEE DEFERRAL AGREEMENT
This Fee Deferral Agreement (the "Agreement"), executed by and between Browning
Investments, Inc.(the"Developer"),and The City of Carmel Redevelopment Commission ("CRC")this VIIA
day of July,2011,Witnesses:
Recitals
WHEREAS,Developer and CRC have executed that certain Project Agreement of even date
hereof(the"Project Agreement");
WHEREAS, ISG Real Estate Investments,LLC ("ISG"),owns the Spine Center Site;
WHEREAS,the first series of the TIF Bond to be issued pursuant to the Project Agreement
is the City of Carmel, Indiana Taxable Economic Development Revenue Bonds,Series 2011 (Indiana Spine
Group Project)(the"Spine Center Bond");
WHEREAS,as contemplated by the Project Agreement,as a condition to,and in connection
with, the issuance of the Spine Center Bond, CRC and ISG have executed that certain Agreement for
Payments in Lieu of Taxes of even date herewith(the"PILOT Agreement");
WHEREAS,the costs of issuance for the Spine Center Bond are$155,000.00(the"Issuance
Costs");
WHEREAS,the Issuance Costs do not include fees charged by Bingham McHale LLP,as
counsel to ISG ("ISG's Counsel"),which fees shall be paid separately by ISG;
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WHEREAS,the Issuance Costs are disproportionate to the amount of the Spine Center Bond;
WHEREAS,CRC has agreed to cap the amount of the Issuance Costs that will be paid from
the proceeds of the Spine Center Bonds at an amount equal to$112,921.25 (the"Cap Amount");
WHEREAS, the Cap Amount is comprised of: (a) $110,000.00; plus (b) $2,921.25,which
represents the fees payable to Wallack, Somers & Haas, PC, in connection negotiating, re-negotiating,
reviewing,and revising the Project Agreement and the PILOT Agreement to address comments from ISG's
Counsel;
WHEREAS,in addition to the Cap Amount,CRC has agreed to waive payment of$5,000.00
of the Issuance Costs (the "Waived Amount");
WHEREAS, CRC has agreed that payment of the amount of $37,078.75 (the "Deferred
Issuance Costs")shall be deferred as provided in this Agreement;
WHEREAS,the Deferred Issuance Costs are comprised of: (a)the Issuance Costs;minus
(b)the Cap Amount; and minus (c)the Waived Amount;and
WHEREAS, Developer and CRC desire to execute this Agreement;
Agreement
NOW,THEREFORE,for good and valuable consideration the receipt and sufficiency of which
are acknowledged hereby, Developer and CRC agree as follows:
1. Cap/Waiver.
(a) Cap. The Issuance Costs paid from the proceeds of the Spine Center Bonds shall
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be capped at the Cap Amount.
(b) Waiver. CRC waives payment of the Waived Costs
2. Deferral.
(a) Outside Date. Developer may defer payment of:
(I) 1/1 of the Deferred Issuance Costs,together with any interest that
accrues thereon(the"First Half Deferred Costs"),until the earlier of:(A)the
issuance of the next series of the TIF Bonds;or(B)December 31,2012(the
"First Half Outside Date");and
(ii) '/2 of the Deferred Issuance Costs, together with any interest that
accrues thereon (the "Second Half Deferred Costs"), until the date that is
one year after the First Half Outside Date.
(b) Interest-First Half. No interest shall accrue on the First Half Deferred Costs during
the period: (i) beginning on the date hereof;and (ii)ending on December 31,2011. If the
First Half Deferred Costs are not paid in full by: (i) December 31, 2011,then,commencing
on January 1,2012, interest shall accrue on the unpaid portion of the First Half Deferred
Costs at the rate of 5% per annum;or(ii)June 30,2012,then,commencing on July 1,2012,
interest shall accrue on the unpaid portion of the First Half Deferred Costs at the rate of 10%
per annum.
(a) Interest-Second Half. No interest shall accrue on the Second Half Deferred Costs
during the period: (i)beginning on the date hereof;and (ii)ending on December 31,2012.
If the Second Half Deferred Costs are not paid in full by: (i) December 31, 2012, then,
commencing on January 1,2013,interest shall accrue on the unpaid portion of the Second
Half Deferred Costs at the rate of 5% per annum;or(ii)June 30,2013,then,commencing
on July 1, 2013, interest shall accrue on the unpaid portion of the Second Half Deferred
Costs at the rate of 10% per annum.
3. ISG's Counsel Fees. Because the Issuance Costs do not include fees charged by ISG's Counsel,
such fees are not part of the Deferred Issuance Costs;accordingly,such fees:(a)are not eligible for deferral
pursuant to this Agreement; and (b)shall not be paid from the proceeds of the Spine Center Bonds.
4. Authority. Each undersigned person executing this Agreement on behalf of Developer and CRC
represents and certifies that:(a)he or she has been empowered and authorized by all necessary action of
Developer 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 duly have been authorized by Developer and CRC, respectively.
5. Miscellaneous. This Agreement: (a)shall be governed by the laws of the State of Indiana; and
(b) may be amended only by a written amendment executed by Developer and CRC. If any term or
condition of this Agreement is invalid or unenforceable,then such invalid or enforceable term or condition
shall not affectthe application,validity,or enforceability of any other term or condition. This Agreement may
be executed in several counterparts,each of which shall be an original, but all of which shall constitute a'
single agreement. All capitalized terms used but not defined herein shall have the meanings ascribed to
such terms in the Project Agreement.
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• THE CITY OF 'iARMEL
REDEV LObi NT CO iSION
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By: . '1_ /d/4 ,1JJ//i/
William
Hammer,
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BROWNING INVESTMENTS, INC.
By:
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THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
William Hammer, President
BROWNING INVESTMENTS, INC.
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By:
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