HomeMy WebLinkAbout101414 - Purchase AgreementPURCHASE AGREEMENT
This Purchase Agreement (the "Agreement ") is entered into this /9 day of October, 2014,
by and between CCC Market, LLC (the "Purchaser "), and The City of Carmel Redevelopment Commission
(the "Seller ").
1. Conveyance. Subject to terms and conditions of this Agreement, Purchaser shall purchase from
Seller, and Seller shall convey to Purchaser, that certain real estate owned by Seller and generally depicted
on Exhibit A (the "Parcel "), together with and including all of Seller's right, title, and interest in and to:
(a) all buildings and improvements located on the Parcel, including, without limitation,
the former "Shapiro's Deli" building (the "Improvements ");
(b) all equipment, machinery, building systems, and fixtures located on or in the Parcel
and /or the Improvements (the "Equipment ");
(c) all supplies, tools, and other items of personal property used in the operation and
management of the Improvements and the Equipment (the "Supplies "); and
(d) all rights, interests, privileges, and easements in any way appertaining to the
foregoing, or used in connection therewith (the "Rights ").
The Parcel, the Improvements, the Equipment, the Supplies, and the Rights, collectively, are the "Property ".
2. Purchase Price. The purchase price for the Property shall be 52, 100,000.00 (the "Purchase Price ").
3. - Closing.
(a) Closing Date. Subject to the terms and conditions of this Agreement, the transaction
contemplated herein (the "Transaction ") shall close within 15 days after all of the conditions
set forth in Section 6 (other than those that, by their terms, continue until -the Closing Date)
are satisfied in full or waived in writing by Purchaser, with the exact date of closing (the
"Closing Date ") to occur on a date mutually acceptable to Purchaser and Seller. The closing
shall take place at a location determined mutually by Purchaser and Seller.
(b) Payment. At the closing:
(i) Purchaser shall pay $1,000,000.00 of the Purchase Price to Seller
in cash or by wire transfer, reduced by any reductions, credits, or prorations
for which this Agreement provides (the "Cash Payment ");
(H) $1,100,000.00 the Purchase Price shall be applied to pay:
(A) first, all interest that has accrued and remains
unpaid under that certain Amended and Restated
Installment Purchase Agreement (Secondary Number Two)
executed as of October 1, 2013, by and between Seller and
Village Financial, LLC ( "VF "), an entity affiliated with
Purchaser ( "RSIC Two "); and
(B) second, the outstanding principal balance of the
purchase price payable pursuant to RSIC Two; and
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(C) third. accrued interest that has been deferred
under and pursuant to that certain Amended and Restated
Installment Purchase Agreem ent (Secondary Number One)
executed as of October 1, 2013, by and between Seller and
VF ( "RSIC One ").
(c) Transfer of Possession. Seller shah deliver possession of the Property to Purchaser
on the Closing Date, free and clear of all rights and claims of any other party to the
possession, use, or occupancy of the Property, other than those rights and claims reflected
in the Permitted Exceptions. For purposes of this Agreement, "Permitted Exceptions" shall
mean: (i)the lien of current real estate taxes and assessments not delinquent; (ii)the matters
set forth on Exhibit B; and (iii) such other matters that do not materially interfere with
Purchaser's intended use of the Property.
4. Closing Documents. At the closing, Purchaser and /or Seller shall execute (to the extent applicable)
and deliver:
(a) a limited warranty deed conveying to Purchaser marketable, indefeasible fee simple
title to the Parcel and the Improvements, subject only to the Permitted Exceptions;
(b) a vendor's affidavit consistent with a limited warranty deed, in form and substance
sufficient for the Title Insurer to delete the "pre- printed" exceptions;
(c) an affidavit that Seller is not a "foreign person ", in form and substance required by
the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated
thereunder;
(d) a bill of sale conveying to Purchaser the Supplies and any other part of the Property
that does not constitute real estate;
(e) an agreement reflecting that all amounts outstanding under RSIC Two have been
paid in full, and terminating RSIC Two (the "RSIC Two Termination Agreement ");
(() an amendment to RSIC One reflecting the amount of deferred interest that has been
paid pursuant to Subsection 3(b)(ii)(C) (the "RSIC One Amendment ");
(g) an agreement (the "Parking Agreement ") pursuant to which, if a parking garage is
constructed on a portion of the currently existing surface parking lot adjacent to the Property
pursuant to the Parcel 10 Easement Documents, then the following shall apply:
(i) prior to commencement of construction of the parking garage,
Seller shall implement a plan for temporary parking as follows:
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(A) there shall be parking available adjacent to the
Property in a configuration reasonably acceptable to
Purchaser and Seller;
(B) Seller will provide Purchaser with the right to use
20 parking spaces within a radius of 300 feet of the
Property, which parking spaces shall be located west of the
center line of Rangeline Road; and
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(C) construction personnel shall be prohibited from
parking in the above referenced parking;
(h) construction of the parking garage shall be completed within 15
months after commencement thereof; and
(iii) Purchaser shall not have any exclusive rights with respect to
parking spaces in the parking garage.
For purposes of this Agreement, "Parcel 10 Easement Documents" are the easement
agreements referenced under the heading "Parcel 10 Easement Documents" on Exhibit B
(h) all of Seller's keys, cards, and combinations to all locks and security devices on or
in the Parcel and /or the Improvements;
(i) an owner's policy of title insurance issued by the Title Insurer, together with evidence
that Seller has paid in full all of the premiums and other charges for the issuance of such
policy; provided that Purchaser shall pay all charges for endorsements to such owner's
policy;
(j) copies of such resolutions, consents of members, partners, and /or shareholders, and
other evidence as reasonably may be requested by Purchaser, Seller, or the Title Insurer to
establish that: (i) the persons executing and delivering the foregoing documents fully have
been em powered, and have been authorized, by all necessary action of the applicable party;
and (ii) the execution and delivery of such documents, and the conveyance and assignment
of the Property to Purchaser in accordance with the terms and conditions of this Agreement,
have been authorized by the applicable party; and
(k) such other customary documents or instruments as Purchaser or the Title Insurer
may request in connection with closing the Transaction.
5. Taxes. Purchaser assumes and agrees to pay: (a) all general and special governmental and
utility assessments with respect to the Property (the "Assessments ") first becoming due and payable after
the Closing Date; and (b) so much of the real estate taxes assessed for and first becoming a lien against
the Property during 2014, if any (the "Current Year Taxes ") as shall be allocable to Purchaser by proration
(based upon the number of days remaining in the year in which closing occurs after the Closing Date).
Seller shall pay: (a) all Assessments first becoming due and payable prior to the Closing Date; (b) both
installments of real estate taxes payable during the year in which closing occurs; and (c) so much of the
Current Year Taxes as shall be allocable to Seller by proration (based upon the number of days in year
in which closing occurs prior to and including the Closing Date). If the applicable tax rate has not been
set, then the current tax rate shall be used for the purposes of such prorations. Any taxes or assessments
that are not: (a) assumed by Purchaser; and (b) due and payable at the time of closing; shall be allowed
to Purchaser as a credit against the Cash Payment at closing, and Seller shall not be liable further for
such taxes and assessments.
6. Purchaser Conditions. The obligation of Purchaser to proceed to the closing are subject to the
satisfaction of the following conditions within: (a) the period commencing on the date set forth in the
introductory paragraph of this Agreement (the "Execution Date ") and expiring on October 31,2014; or (b) such
other period as is set forth in this Section:
(a) Property Information. Promptly after the Execution Date, Seller shall provide to
Purchaser full and complete copies of the following, to the extent currently in the possession
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of Purchaser or its counsel: (i) the owner's policy or title commitment markup received by
Purchaser in connection with its acquisition of the Property (the "Current Policy "); provided
that Purchaser acknowledges that the legal description on the Survey may reflect a parcel
that is larger than the Parcel; (ii) the survey obtained by Purchaser in connection with its
acquisition of the Property (the "Survey "); provided that Purchaser acknowledges that the
legal description on the Survey reflects a parcel that is larger than the Parcel; (iii) reports and
results of surveys, borings, soil, water and engineering tests, and other tests, inspections,
examinations, studies, and investigations with respect to the Property; and (iv) documentation
with respect to rem ediation, removal, encapsulation, or abatement of any: (A) hazardous
waste, material, or substance (including, without limitation, asbestos); or (B) underground
storage tanks; on, in, under or from the Parcel, the Improvements, any part thereof, or any
groundwater thereunder (the "Prior Abatement ").
(b) Title. Purchaser shall have: (i) obtained such updates of the Current Policy as it
determines to be necessary or appropriate; and (ii) determined, in the exercise of its
reasonable discretion, that the Title Insurer shall: (A) insure, for the full amount of the
Purchase Price, marketable, indefeasible fee simple title to the Parcel and the Improvements
in the name of Purchaser, free of the standard exceptions and all other exceptions except
the Permitted Exceptions; and (B) issue such customary endorsements as Purchaser
reasonably deems to be necessary or appropriate.
(c) Survey. Seller shall have: (i) obtained an update to the Survey that includes a legal
description of only the Parcel; and (ii) have determined, in the exercise of its reasonable
discretion, that the updated Survey does not disclose any matters that: (A) were not included
on the Survey prior to being updated; and (B) materially interfere with Purchaser's intended
use of the Property (the "Intended Use "). The Survey shall establish the precise legal
description of the Parcel for purposes of the owner's policy and closing documents.
(d) Environmental. Purchaser shall have determined that: (i) there is no contamination
or pollution of the Parcel, the Improvements, any part thereof, or any groundwater thereunder
by any hazardous waste, material, or substance in violation of any applicable federal, state,
or local laws, statutes, or ordinances, or governmental rules, regulations, or orders (the
"Laws "); and (H) any Prior Abatement was completed properly, and in compliance with the
Laws.
(e) Physical Condition. Purchaser, at its expense, shall have determined, in the exercise
of its reasonable discretion, that: (i) the Improvements are structurally sound; (ii) the
mechanical, electrical, plumbing, heating, air conditioning, and ventilating, and other systems
within or serving the Improvements are in working order; (iii) the zoning of the Parcel is
proper and appropriate for the Intended Use; and (iv) there are utilities serving the Property
at adequate pressures, and in sufficient quantities and volumes, for the use of the Property
for the Intended Use.
(f) Financing. Purchaser shall have closed (or shall be closing contemporaneously) on
a loan in the amount of the Cash Payment, which loan shall be on terms and conditions
reasonably satisfactory to Purchaser.
(g) Documents. As of the Closing Date, Purchaser and Seller shall have agreed on the
form and substance of the RSIC Two Termination Agreement, the RSIC One Amendment,
and the Parking Agreement.
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(h) Other Conditions. As of the Closing Date: (i) no action or proceeding before a court
or other governmental agency or officer shall be pending, and no such action or proceeding
shall be threatened, that would materially interfere with the use of the Property for the
Intended Use; (ii) there shall be no breach of this Agreement by Seller; and (iii) all of the
representations and warranties set forth in Section 9 shall be true and accurate in all
respects.
If one or more of the conditions set forth in this Section is not (or cannot be) timely and completely satisfied,
then Purchaser, at its sole option, may cancel this Agreement and all of its obligations hereunder by a written
notice to Seller on or before the date provided for satisfaction of the applicable condition.
7. Seller Termination.
(a) RSIC Documents. The obligation of Seller to proceed to the closing is subject to
Purchaser and Seller having agreed, as of the Closing Date, on the form and substance of
the RSIC Two Termination Agreement, the RSIC One Amendment, and the Parking
Agreement. If the foregoing condition is not timely and completely satisfied, then Seller, at
its sole option, may cancel this Agreement and all of its obligations hereunder by a written
notice to Purchaser on or before the Closing Date.
(b) Offer. Seller may terminate this Agreement at any time prior to the Closing Date by
delivery of written notice to Purchaser if Seller receives an offer for the Property that Seller
would like to accept; provided that, in connection with any such termination, Seller shall
reimburse Purchaser for all actual, out -of- pocket expenses paid to third -party providers in
connection with this Agreement.
8. Inspection. Purchaser and its agents, employees, and contractors shall have the right to enter upon
the Parcel and the Improvements at reasonable times and upon advance notice to Seller to conduct all
surveys, borings, tests, inspections, examinations, studies, and investigations as Purchaser deems to be
necessary or appropriate (the "Physical Inspections "). Purchaser shall: (a) cause the parties conducting the
Physical Inspections to maintain insurance with customary coverages; (b) repair promptly any damage to the
Parcel or the Improvements resulting from the Physical Inspections; (c) indemnify and hold harmless Seller
from and against any and all claims, actions, liabilities, losses, damages, injuries, costs, and expenses
(including, without limitation, attorneys' fees and court costs) incurred as a result of, or in connection with, the
Physical Inspections; and (d) provide to Seller copies of the results or reports of all Physical Inspections. The
obligations of Purchaser under this Section shall survive the closing of the Transaction or the cancellation or
termination of this Agreement, as applicable.
9. Representations. Seller hereby represents and warrants to Purchaser that Seller:
(a) owns fee simple title to the Property; and
(b) has the right and authority to convey the Property to Purchaser in accordance with
the terms and conditions of this Agreement.
10. Risk of Loss. If: (a) the Property, or any part thereof, is: (i) damaged or destroyed by fire or other
casualty; or (h) or taken by condemnation; or (b) any notice of condemnation is given at any time after the
Execution Date; then Purchaser, at its sole option, may terminate this Agreement or proceed with closing.
If Purchaser elects to proceed with closing, then Purchaser may apply the proceeds of any insurance policy
or condemnation award to reduce the Purchase Price.
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11. Property Use. CRC and Purchaser agree that retail and /or restaurant uses are the preferred uses
of the Property, and Purchaser intends that the Property will be used for retail and /or restaurant purposes.
In the event that, despite the exercise of reasonably diligent efforts over a reasonable period of time,
Purchaser is unable to lease the Property for retail and /or restaurant uses to a reasonably satisfactory tenant
pursuant to reasonably satisfactory lease terms, then CRC shall cooperate in good faith with Purchaser to
facilitate approval of use of the Property for another use permitted by the current zoning of the Property. In
the event that, despite the exercise of reasonably diligent efforts over a reasonable period of time, Purchaser
is unable to lease the Property to a reasonably satisfactory tenant pursuant to reasonably satisfactory lease
terms that require the use of the Property for a use permitted by the current zoning of the Property, then CRC
shall cooperate in good faith with Purchaser to facilitate approval of use of the Property as a medical clinic
or such other use as reasonably is acceptable to CRC. Notwithstanding anything to the contrary set forth
herein, CRC shall not be obligated to incur any cost or expense in connection with its cooperation under this
Section.
12. Notices. All notices permitted or required to be given hereunder shall be in writing, and shall be
deemed to be delivered when: (a) delivered personally; or (b) sent by national overnight courier; in all events
to the following addresses: to Purchaser at 770 3rd Avenue Southwest, Carmel, Indiana 46032, Attn: Ron
Brown; and to Seller at 30 West Main Street, Suite 220, Carmel, Indiana 46032, Attn: Corrie Meyer, with a
copy to Jennifer Shoup, Esq., W allack Somers & Haas, PC, One Indiana Square, Suite 2300, Indianapolis,
Indiana, 46204. Either party may change its address for notice by written notice delivered to the other party
as provided above.
13. Specific Performance. In the event of a default by Seiler hereunder, Purchaser shall be entitled
to the remedy of specific performance to enforce the terms and conditions of this Agreement. If: (a) Seller
breaches this Agreement; and (b) Purchaser does not elect the remedy of specific performance; then
Purchaser may terminate this Agreement. Specific performance or termination of this Agreement shall be the
sole remedies available to Purchaser in the event of a default by Seller hereunder.
14. Brokers. Purchaser and Seller hereby represent, warrant, and agree that: (a) they have not dealt with
any broker in connection with the Transaction, except for Colliers International (the "Broker "); and (b) no fee,
commission, or similar compensation shall be payable by Purchaser or Seller to any broker, person, or entity
as a result of any agreement or action by Seller or Purchaser, respectively, except that Seller shall pay at
closing the full commission owed to Broker.
15. Authority. Each of the undersigned persons executing this Agreement on behalf of Purchaser and
Seller represents and certifies that: (a) he or she is empowered and authorized by all necessary action of
Purchaser and Seller, 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; (c) the execution, delivery, and performance
of this Agreement have been authorized by Purchaser and Seller, respectively; and (d) this Agreement is the
legal, valid, and binding obligation of Purchaser and Seller, respectively.
16. Assignment. Purchaser may: (a) assign this Agreement without the prior written consent to any entity
controlling, controlled by, or under common control with Purchaser; or (b) designate a nominee to receive title
to the Property in lieu of Purchaser, Purchaser otherwise shall not assign this Agreement without the prior
written consent of Seller, which consent shall not be withheld unreasonably. This Agreement otherwise shall
be binding upon and shall inure to the benefit of Purchaser and Seller, and their respective successors and
assigns.
17. Miscellaneous. This Agreement: (a) may be executed in separate counterparts, each of which shall
be an original, but all of which together shall constitute a single instrument; (b) shall be governed by, and
construed in accordance with, the laws of the State of Indiana; and (c) may be modified only by a written
agreement signed by both Purchaser and Seller. The invalidity, illegality, or unenforceability of any one or
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more of the terms and conditions of this Agreement shall not affect the validity, legality, or enforceability of
the remaining terms and conditions hereof. All Exhibits referenced in this Agreement are attached hereto
and incorporated herein by reference. All proceedings arising in connection with this Agreement 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. Purchaser waives, to the extent permitted under applicable law: (a) the right to a
trial by jury; and (b) any right Purchaser may have to: (i) assert the doctrine of "forum non conveniens "; or
(H) object to venue.
IN WITNESS W HEREOF, Purchaser and Seller have executed this Agreement as of the date
set forth above.
CCC MARKET, LLC
By: /_,/4AlA,A1 iji',
Printed: l._ ._ Wit Slier
Title: <svP
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
Bv:
William Hammer, President
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
Printed:
Title:
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more of the terms and conditions of this Agreem ent shall not affect the validity, legality, or enforceability of
the remaining terms and conditions hereof. All Exhibits referenced in this Agreement are attached hereto
and incorporated herein by reference. All proceedings arising in connection with this Agreement 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. Purchaser waives, to the extent permitted under applicable law: (a) the right to a
trial by jury; and (b) any right Purchaser may have to: (i) assert the doctrine of "forum non conveniens "; or
(ii) object to venue.
set forth above.
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IN WITNESS W HEREOF, Purchaser and Seller have executed this Agreement as of the date
CCC MARKET, LLC
By:
Printed:
Title:
T H E C I T Y O F
REDEV LSPMENTCO
By:
Wil am Hammer, Pres
C A R M E L
MISSION
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T H E C I T Y O F C A R M E L
REDEVELOPMENT COMMISSION
By:
Printed:
Title:
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more of the terms and conditions of this Agreement shall not affect the validity, legality, or enforceability of
the remaining terms and conditions hereof. All Exhibits referenced in this Agreement are attached hereto
and incorporated herein by reference. All proceedings arising in connection with this Agreement 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. Purchaser waives, to the extent permitted under applicable law: (a) the right to a
trial by jury; and (b) any right Purchaser may have to: (i) assert the doctrine of "forum non conveniens "; or
(ii) object to venue.
set forth above.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement as of the date
CCC MARKET, LLC
By:
Printed:
Title:
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
William Hammer, President
T H E C I T Y O F CARMEL
R DriL yEN COM SSION
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EXHIBIT A
Depiction of Parcel
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EXHIBIT B
Current Permitted Exceptions
Current Real Estate Taxes not Delinquent
Declaration of Covenants and Easements recorded as Instrument No. 2000000058577, as modified by that
certain: (a) Confirmation (Kestner Site is part of the "Retail Parcel ") recorded as Instrument
No. 200200025755; (b) Amendment to Declaration of Covenants and Easements recorded as Instrument
No. 200100061268; (c) Second Amendment to Declaration of Covenants and Easements recorded as
Instrument No. 00300059243; (d) Third Amendment to Declaration of Covenants and Easements recorded
as Instrument No. 200300110032; and (e) Fourth Amendment to Declaration of Covenants and Easements
recorded as Instrument No. 200500072979.
Amended and Restated Declaration of Covenants and Easements recorded as Instrument No. 2014038939- -
this supersedes in its entirety the: (a) Declaration of Covenants and Easements recorded as Instrument
No. 200200025737; and (b) Cross Easement Agreement recorded as Instrument No. 2007058835.
Utility Easement Agreement recorded as Instrument No. 2007001257
Parcel 10 Easement Documents
Easement Agreement (Use of Phase I Contaminated Site) recorded as Instrument Number
200200025741, as amended by that certain: (a) Amendment to Easement Agreement (Use
of Phase I Contaminated Site) recorded as Instrument Number 200400005237; (b) Second
Amendment to Easement Agreement (Use of Phase I Contaminated Site) recorded as
Instrument Number 2007058836; (c) Third Amendment to Easement Agreement (Use of
Phase I Contaminated Site) (I don't have the recording information); and (d) Fourth
Amendment to Easement Agreement (Use of Phase I Contaminated Site) recorded as
Instrument Number 2014038937.
Easement Agreement (Use of Phase II Contaminated Site) recorded as Instrument Number
200200025742, as amended by that certain: (a) Amendment to Easement Agreement (Use
of Phase II Contaminated Site) recorded as Instrument Number 200400005238; (b) Second
Amendment to Easement Agreement (Use of Phase II Contaminated Site) recorded as
Instrument Number 2007058837; and (c) Third Amendment to Easement Agreement (Use
of Phase II Contaminated Site) (I don't have the recording information); and (d) Fourth
Amendment to Easement Agreement (Use of Phase II Contaminated Site) recorded as
Instrument Number 2014038938.
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