HomeMy WebLinkAboutVillage Financial - PAC Equipment - $7,213,652.04/2009e
PAC EQUIPMENT
INSTALLMENT PURCHASE CONTRACT
This PAC Equipment Installment Purchase Contract (the "Contract"), by and oetween Vil.age
Fira icilL. LLC (the' 'Developer ") , and The City of Carmel Redevelopment Commission ( "CRC "), is executed
this ' day of August, 2009.
1. Definitions. Capita'ized terms used in this Contract shall have the meanings ascribed to such terms
in this Section.
Administrative Payment shall mean a quarterly payment from CRC to Developer in an amount equa' to:
(a) .0025; multiplied by (b) the Loan Balance as of the due date of such payment; arc' div ded by (c) 4; wh ch
payment is interded to defray the administrative costs that will be incurred by Developer in connection with the
Equipment Loan or the Replacement Loan, as applicab'e.
Agency shall mean any applicable: (a) governmental agency, board. commission, or department; or (b) other
judica', administrative, or regulatory body.
Aggregate Equipment Costs shall mean the sum of: (a) the Equipment Costs, (b) the Lender Fees for the
Equipment Loan;.and (c) the Loan Costs for the Equipment Loan.
Amortization Period shall mean a pe -iod of 20 years, commencng on the first day of Paymert Period 2.
Books and Records shall mean all of the books and records pertaining to the acgLis tior of the Equipmen:
in accordance with this Contract and the Equipment Acquis tion Agreement.
Change Order shall mean a change order executed by the Executive Director (o- by another designee cf CRC
if the Executive Director is unable or unavailable to execute such change order) and Developer finalizing the
inclusion into the Equipment Specifications of a change that has been: (a) proposed in a Change Order
Recuest and (b) deemed to have been approved (or actually approved) by Developer.
Change Order Request shall mean a written request by CRC for a change to the Equipment Specifications.
City shall mean the City of Carmel, Indiana.
City Agency shall mean an agency, board, commission, department, or instrumentality of the City.
Claims shail mean claims, judgments, liabilities, losses, costs, and expenses (including, without limitation,
reasonable attorneys' fees).
Closing Payment shall mean an amount equal to (a) the Loan Balance; plus (b) any unpaid interest tnat has
accrued on the Loan Balance at the Loan Ra :e; as of the expiration of Payment Period 2
Collateral Assignment shall mean a Collateral Assignment, Lock Box, and Security Agreement (PAC
Equipment) substantially in the form attached hereto as Exhibit D.
Cure Period shall mean a period of 30 days after a party failing to perform or observe any term a- condition
of this Contract to be performed or observed by it receives notice specifying the nature of the failure, provided
tnat, if the failure is of such a nature that it cannot be remedied within 30 days. despite reasonably diligen:
efforts, :hen the 30 cay period shall be extended as reasonably may be necessary for the defaulting party to
remedy the failure, so long as the defaulting party: (a) commences to remedy the failure within the 30 day
period and (b) diligently pursues such remedy to completion.
Default Rate shall mean the default rate of interest under the Loan Documents.
Equipment shall mean an estimated $7,515,800.00 of equipment for use in the operation of the PAC
(including, without limitation, orchestra risers). The Equipment is described in the Equiprnent Specifications
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Equipment Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier,
which agreement shall: (a) be consistent with the Equipment Schedule and the Equipment Specifications
(reflecting any Change Orders); (b) reflect the obligation of Developer to obtain the Wrranties; and (c) be
subject to the reasonable approval of CRC.
Equipment Closing Date shall mean date of the closing with respect to the transfer of the Equipment. If such
closing has not occurred at such time as Payment Period 2 expires, then the Equipment Closing Date shall be
the date on whicn Payment Period 2 expires.
Equipment Costs shall mean the actual, cut -of- pocket costs incurred by Developer to acquire the Equipment
in accordance w th :his Contract and the Equipment Acquisition Agreement.
Equipment Lender shall mean the financial institution making the Equipment Loan
Equipment Loan shall mean a financing comprised of a loan to Developer, the proceeds of which shall be
used to acquire the Equipment, which loan sha'.I: (a) finance the Aggregate Equ:p.ment Costs; (b) have a term
of at least seven years; and (c) provide for: (i) interest at a rate accepted by CRC; (n) interest only payments
during Payment Period 1; (iii) amortization of the Loan Balance over the Amortization Period at the Loan Rate,
(iv) quarterly payments that change if and when the Loan Rate changes, subject to the exercise cf the Fixed
Rate Option; and (v'the Extension Option.
Equipment Loan Closing shah mean the closing with respect to the Equipment Loan.
Equipment Loan Closing Date shall mean the date of the Equipment Loan Closing
Equipment Loan Documents shall mean the documents evidencing and securing Inc Equipment Loan,
including, without limitation, the "Loan Agreement (PAC Equipment)", the "Promissory Note (PAC Equipment) ",
and the Collateral Assignment.
Equipment Schedule shall mean the schedule for the acquisition of the Equipment, which schedule is attached
hereto as Exhibit B.
Equipment Specifications shall mean the specifications for: (a) the Equipment, including specific identification
and /or descriptions of the Equipment; and (b) the warranties from manufacturers, faoricators, anc suppliers
to be obtained in connection with the acquisition of the Equipment, which warranties shall. (i) run in favor of
CRC; and (ii) constitute the Warranties. The Equipment Specifications are attached here :o as Exhibit C.
Event of Default shall have the meaning set forth in Section 17.
Executive Director shall mean the Executive Director of CRC (currently Les Olds).
Extension Option shall mean the option to extend the term of the Equipment Loan for a period of five years,
which option may be exercised on the terms and conditions set forth in Exhibit F.
Fixed Rate Fees shall mean, if Developer exercises the Fixed Rate Option at the request of CRC, the regular
(non.- default) fees and costs actually paid by Developer to the Lender in connection with such exercise.
Fixed Rate Option shall mean the option to "fix ", `'cap ", or "collar' the effective Loar Rate through a "swap'
or other mechanism in accordance with the terms and conditions of Exhibit E.
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Full Prepayment Closing Date shall mean, in the case of the exe-cise by CRC of the Full Prepayment Option
(or the acceleration by Developer o= the Full Prepayment Price pursuant to Subsection. 18(a)), the: (a) date on
which the Full Prepayment Price is to be pa d; and (b) Equipment Closing Date.
Full Prepayment Notice snall mean a written notice pursuant to which CRC notifies Developer that it is
exercising the Full Prepayment Option.
Full Prepayment Option sha'I mean the option (but not the obligation) of CRC to: (a) satisfy its obligation in
full with respect to the payment of the Purchase Price; and (b) acquire title to Equipment; in advance of the
expiration of Payment Period 2 by paying the Full Prepayment Price.
Full Prepayment Price shall mean the sum of: (a) the Loan Balance on the Full Prepayment Closing Date; plus
(b) interest thereon that has: (i) accrued at the Loan Rate; and (ii) not been paid prior to the Full Prepayment
Closing Date (stated alternatively. interest that has accrued, but not been paid, as part of the Installment
Payments); plus (c) if the Full Prepaymert Price is being paid more than 90 days before the maturity date of
the Loan, any applicable prepayment premiums or similar payments due under the Loan Documents with
respect to a prepayment of the Loan Balance.
Installment Payments shall mean the Payment Period 1 Installments or the Payment Period 2 Installments.
as applicable.
Law shall mean any applicable federal, state, or local law, statute ordinance, rule, or regulation, or any order
of decree of any Agency (including, without limitation, the Federal Reserve System and its Board of Governors)
Lender shall mean as applicable, the Equipment Lende• cr the Replacement Lender
Lender Fees shall mean regular (non - default) lender fees, casts, and expenses actually incurred and paid by
Developer under the Loan Documents, including, without limitation and if applicable. (a) the fees incurred n
connection with the exercise of the Extension Option. and (b) the Fixed Rate Fees To the extent that fees,
costs, and expenses are included in Lender Fees, such fees, costs, and expenses shall not be included in Loan
Costs
LIBOR shall mean the average of the per annum rates a: which deposits in U.S. Dollar Funds are offered tc
the Lender by prime banks in the London Interbank Eurodollar market for 30 day periods, and in the amount
of the applicable disbursement, as: (a) determined by the British Bankers' Association as of 11:30 a.m , London
time (or as soon thereafter as practicable) two London banking days prior to the beginning of the 30 cay period,
as published on Bloomberg LP (or, if no longer pub'ished on Bloomberg LP, then from such comparable source
or sources as the Lender shall determine in its reasonable discretion); and (b) rounded upward to the nearest
1/8 of 1 %.
Loan shall mean the Equipment Loan or the Replacement Loan, as appl.cable.
Loan Balance shall mean that portion of the outstanding principal balance of the Equipment Lcan disbursed
to pay. (a) Lender Fees with respect to the Equipment Loan; (b) Loan Costs with respect to The Equipment
Loan; and (c) Equipment Costs; provided that, if Developerobta ns the Replacement Loan, then. from and after
the closing with resaect to the Replacement Loan, the Loan Balance shall mean that portior of the outstanding
principal balance of the Replacement Loan disbursed to pay: (a) the Unamortized Balance; (b) Lender Fees
with respect to the Replacement Loan; and (c) Loan Costs with respect to the Replacement Loan. The Loan
Balance shall be reduced by any Partial Prepayments that :nave been made by CRC to Developer, even if the
Equipment Lender has not yet applied any such Partial Prepayments to reduce the outstanding principal
balance of the Equipment Loan.
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Loan Costs shall mean the actual, cut -of- pocket costs incurred by Developer to close the Equipment Loan
and /or the Replacement Loan. To the extent that costs are included in Loan Costs, such costs shali not be
included in Lender Fees.
Loan Documents shall mean, as applicable; the Equipment Loan Documents er the Replacement Loan
Documents.
Loan Rate shall mean the per annum regular (non - default) rate of irterest accruing on the Loan Balance under
. the Loan Documents
Offset/Addition Amount shall mear: the amount by which a projected Installment Payment set forth in a
Projection Notice either exceeded or fell short of the amount of the Installment Payment to which Developer
actually was entitled for tne quarter with respect to which such Projection Notice applied
Offset/Addition Notice shat. mean a written notice. (a) stating that the projected amount of an Installment
Payment set forth in a specified Projection Notice either exceeded or fell short of the amount of tne Installment
Payment to which Developer actua:iy was entitled for the quarter with respect to which such Projection Notice
applied, and (b) setting forth the OffseJAcdition Amount.
PAC shall mean a word-class conger. hall located on that certain real estate depicted on Exhibit A
Partial Prepayment shall mean a payment of a portion of the outstanding principal oalance of the Loan, which
payment is made by CRC in addition to an Installment Payment.
Payment Due Date shall mean. (a) in the case of the first Payment Period 1 Installment, December 1. 2009;
and (b) thereafter, each March 1, June 1, September 1, and December 1 durir..g Payment Period ' and
Payment Period 2.
Payment Period 1 shall mean the period: (a) beginning on the Equipment Loan Closing Date; and (b) ending
on August 31, 2011
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of tne Equipment,
the amount of which shall be equal to: (a) the: (i) Loan Rate; multiplied by (ii) the Loan Baler ce, and multiplied
by (iii) 1/4; plus (b) the Administrative Payment for the applicable quarter.
Payment Period 2 shall mean the period: (a) beginning on September 1, 2011; and(b) ending on the maturity
date of the Equipment Loan. as the same may be extended by the exercise of the Extension Option; provided
that, if Developer obtains the Replacement Loan, then Payment Period 2 shall end on the maturity date of the
final Replacement Loan.
Payment Period 2 Installments shall mean quarterly installment payments for the purchase cf the Equipment,
the amount of which shall be equal to: (a) an amount that will amortize the Loan Balance ove- the Amortization
Period (or the remainder thereof, in the case of the exercise of the Extension Option c• the c'•osing of :he
Replacement Loan) at tne Loan Rate; plus (b) the Administrative Payment for the applicable quarter
Projection Notice shall mean a written notice setting forth Developer's reasonable projection of the arrount
of the next due Installment Payment.
Purchase Price shall mean the sum of: (a) all Installment Payments; plus (b) the Closing Payment.
Replacement Lender shall mean the financial institution making the Replacement Loan.
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Replacement Loan shall mean a financing (or a series of financ ngs) comp•ised of a loan (o; a series of loars)
to Developer, the proceeds of which shall be used to refinance the Unamortized Ba.ance, which loan (or series
of )oars) shall provide for (a) a term that does not extend beyond the expiration of the Amortization Period;
(b) interest at a rate accepted by CRC; (c) amortization of tne Unamortized Balance over the remainder of the
Amortization Period at the Loan Rate; and (d) quarterly payments that change if and when the Loan Rate
changes, subject to The exercise of the Fixed Rate Option.
Replacement Loan Documents shalt mean the documents evidencing and securing the Replacement Loan.
Replacement Tri -Party Agreement shall mean an agreement by and among CRC, Developer, and the
Replacement Lender replacing the Tr':-Party Acreement, which agreement shall contain terms and conditions
substantially simi;ar to the Tii -Party Agreement, modified as necessary to reflect the Rep acement Loan.
Supplier shall mean the entity from which Developer will acquire the Equipment.
Surviving Supplier Obligations shah mean obligations of the Supplier under the Equipment Acquisition
Agreement (other than the obligations specified in the Warranties) that survive the acquisition by Developer of
the Equipment
Transfer s'hal. mea,': (a) any sale, transfer, conveyance, assignment pledge; or other disposition of, or any
encumbrance upon, the Equipment or any interest therein., or (b) any granting of a secur`.ty interest in the
Equipment, other than to the Lender
Tri -Party Agreement shall mean a Tri -Party Agreement (PAC Equipment) substantially in the form attacned
hereto. as Exhibit H.
Unamortized Balance shall mean the amount of the Loan Balance on the maturity date of the Equipment
Loan, as the same may be extended by the exerc se of the Extension Option, provided that, ,n the case of a
Replacement Lcan obtained after the maturity of a prior Replacement Loan, the Unamortized Balance snail be
mean the amount of the Loan Balance on the maturity of such prior Replacement Loan.
Warranties shall mean the warranties specified in the Equipment Spec fications to be obtained in connection
with the acquisition of the Equipment, which warranties shall run in favor of CRC.
2. General Obligations.
(a)
Equipment Loan and Acquisition. Subject to the terms and conditions of this Contract
(1) Developer shall. (A) close the Equipment Loan, including executing
and delivering the Equipment Loan Documents; (8) after the Equipment Loan
Closing acquire the Equipment and the Warranties in accordance w'th the
Equipment Acquisition Agreement; (C) if applicable, close the Replacement
Loar,, including executing and delivering the Replacement Loan Documents,
and (D) satisfy its obligations under the Loan Documents, and
(ii)
tne proceeds of the Equipment Loan shall be used only to finance the
Aggregate Equipment Costs; provided that, if Developer obtains the
Replacement Loan, then the proceeds of the Replacement Loan may be used
to refinance the Unamortized Balance
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(b) Fixed Rate Option. Upon receipt of written request by CRC, Developer shat. exercise
the Fixed Rate Op:ion; provided that, Developer shall not exercise the Fixed Rate Option
unless requested by CRC.
(c) Equipment .Transfer. Subject to the terms and conditions of this Contract
(i) Developer shall transfer to CRC; and (ii) CRC shall purchase from Developer; tit.e to the
Equipment for the Purchase Price; provided ha :, if CRC exercises the Full Prepayment
Option, then, in lieu of the Purchase Price, CRC shall pay the Fu'l Prepayment Price.
3. Loan Closing. The Equipment Loan C'osinc Date shall be established mutually by CRC and
Deve.cper. The Equipment Loan Closing shall take place at the office of the Equipment Lender, or at such
other place as CRC and Developer mutually acree.
4. Loan Closing Documents. At the Equ pmen: Loar Closing, CRC and /or Developer, as apolicable,
shall execute and deliver the following documents:
(a)
the Equipment Loan Documents:
(b) the Tn -Party A.greement;
(c) cog4es of such resolutions, consents, authorizations, and other evidence -as CRC of --
Develcper, as applicable, or t.ne Equipment Lender reasonably may request to establish that.
(i) the persons executing and delivering this Contract and the foregoing documents are
empowered and authorized by all necessary action of CRC or Developer, as applicable: and
(;i) the: (A) execution and de ivery of his Contract and the foregoing documents, and
(B) performance by CRC or Developer, as applicable, hereunder and under such documents,
have been authorized by CRC or Developer, as applicable, and
(d) such other customary documents and instruments as CRC cr Developer, as
applicable, or the Equipment Lender reasonably may request in connection with the Equipment
Loan Closing
5. Conditions of Performance.
(a) Developer Conditions. The oblicatiors of Developer with respect to proceeding with
the Equipment Loan Closing shall be subject to the satisfaction, or waiver in writing, o' the
following:
(i) Developer, exercising commercially reasonable discretion, shall have
approved the Equipment Loan Documents and the terms and conditions of
the Equipment Loan,
there shall be no breach of this Contract by CRC that CRC has failed
to cure within the Cure Period; and
(iii) all of the representations and warranties set forth in Subsection 6(a)
shall be true and accurate in all respects.
(b) CRC Conditions. The obl.gations of CRC with respect to proceeding with the
Equipment Loar. Closing and the payment of the Purchase Price shall be subject tc
satisfaction, or waiver in wr;tino, of the fol owing:
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(i) CRC exercising commercially reasonable discretion, shall have
approved the Equipment Loan Documents and the terms and conditions of
the Equipment Loan;
(t) there shall be no breach of this Contract by Developer that Developer
has failed to cure with•n the Cure Period; and
(iii) at of the representations and warranties set fort,n in Subsectfo,n 6(b)
shall oe true and accurate in all respects.
6. Representations.
(a') CRC. CRC represents and warrants to Developer that: (i) CRC shall not enter into any
contracts or undertakings that would limit, conflict with, or constitute a breach of this Contract,
the Tri -Party Agreement, or the Collateral Assignment, (ii) CRC is a public body organized and
existing under the laws of the State of Indiana; (iii) CRC has the power to• (A) enter into this
Contract, the Tri -Party Agreement, ano the Collateral Assignment; and (3) perform its
obligations hereunder and under the Tri -Party Agreement and the Collateral Assignment; (•v)
CRC has been authorized by proper action to (A) execute and deliver this Contract, the Tri -
Party Agreement, and the .Collateral Assignment; and (8) perform its obligations hereunder
and under the Tn -Party Agreement and the Collateral Assignment; and (v)'.validhis Contract, the
Tri -Pa-ty AgWeernent, -and the Collateral Assignment are the ` legal, , and oinding --
obligations of CRC.
(b) Developer. Developer represents and warrants to CRC that: (i) Developer snail not
enter into any contracts or undertakings that would limit, conflict with or constitute a breach
of this Contract, the Tri -Party Agreernen :, or the Loan Documents; (ii) Developer is a limited
liability company organized and existing under the laws of the State of Indiana; (iii) Deve oper
has the power to: (A) enter into this Contract, the Tr! -Party Agreement, and the Loan
Documents; and (B) to perform its obligations hereunder and under the Tri -Party Agreement
and the Loan Documents; (iv) Developer has been authorized by proper action to: (A) execute
and deliver this Contract, the Tn -Party Agreement, and the Loan Documents; and (B) perform
its obligations hereunder and under the Tri -Party Agreement and the Loan Documents; (v) this
Contract, the Tri -Party Agreement, and the Loan Documents are the legal, valid, and binding
obligations of Developer; (vi) upon accu',sition thereof pursuant to the Equipment Acquisition
Agreement, Developer shall: (A) be, and continue to be. the lawful owner of the Equipment,
and (B) have, and continue to have, good and marketable title to the Equipment, free and clear
of all liens, clams, security interests, encumbrances, and restrictions, except for th's Contract;
and (vii) no financing statement covering all or any porton of the Equipment is on file in any
public office.
7. Change Orders. If CRC desires to make a change to the Equipment Specifications, then CRC shall
submit a Charge Order Request to Developer, which Change Order Request shall state (a) whether
implementing the Change Order Request would increase, decrease, or have no effect on the Ecuipment Costs;
and (b) that, if implementing the Change Order Request would increase the Equipment Costs, then CRC shall
pay the amount of such increase. So long as CRC agrees to pay any increase in the Equipment Costs that
results from the proposed change, the Change Order Request shall be deemed to be approved by Developer.
If a Charge Order Request is deemed to be approved by Developer, then a Change Order shall be executed.
Notwithstanding the foregoing, Change Orders may be made only: (a) to the extent permitted by, and in
accordance with, the Equipment Acquisition A.greement; and (b) with respect to items of Equipment, title of
which has not been. transferred to Developer.
8. Acquisition of Equipment.
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(a) Acquisition Agreement Developer shall: (i) enter into the Equipment Acquisition:
Agreement, (ii) comply with all of its obligations under The Equipment Acquisition Agreement;
(ii) keep the Equipment Acquisition Agreement in full force and effect, without any default by
Developer thereunder; (iv) not amend or modify the Equipment Accuisition Agreement, except
w;th the prior consent of CRC; provided that, without the prier cor.sent of CRC, Developer may
make minor, non - substantive amendments or rnod;fications of or to tne Equipment Acquisition
Agreement; and (v) enforce the terms and conditions of the Equipment Acquisition Agreement
against the Supplier (ir.cluding that, to the extent that there are Surviving Supplier Obligations,
Developer shall enforce the terms and conditions of the Equ.pmentAcquisition Agreement with
respect thereto); provided that, if Developer incurs actual, reasonable, out -of -- pocket expenses
in connection with such enforcement, then. upon receipt of reasonable documentation
evidencing such expenses, and in the ordinary course of CRC's business, CRC shalt
reimburse Developer for such expenses. If there are Surviving Supplier Obligations, then, at
such time as Developer has acquired the title to all of the Equipment, Develop& shall
collaterally assign the Equipment Acquisition Agreement to CRC.
(b) Acquistion. Developer shall: (i) acquire title to all of the Equipment in accordance with
the Equipment Acquisition Agreement, the Equipment Schedule, and the Equipment
Specifications (reflecting any Change Orders); and (ii) obtain (and deliver to CRC) all of the
Warranties; provided that, if, for any reason, the Warranties by their terms do not run in favor
of CRC, the,; in.addition to delivering the Warranties to CRC, Developer shad - assign :he --
Warranties to CRC. If the Aggregate Equipment Costs exceed the proceeds of the Equipment
Loan, then, upon receipt of reasonabe documentation evidencirg such excess, and in the
ordinary course of CRC's business, CRC shall pay to Developer the amount of such excess
(c) Inspection At such time as Developer has acquired :he Equipment and obtained Card
delivered to CRC) the Warranties, CRC shall check the Equipment and the Warranties against
the Equipment Specifications. If CRC determines that the Equipment and /or the Warranties
do not conform to the Equipment Specifications (reflecting any Change Orders), then. (i) CRC
shall provide to Developer written notice thereof, and (ii) Developer shalt address the non -
conform:ty directly with the manufacturer, fabricator, and /o• supplier, as applicable; provided
that, if Developer incurs actual, reasonable, out -of- pocket expenses in connection with
addressing the .non - conformity, then, upon receipt of reasonable documentation evidencing
such expenses, and in the ordinary course of CRC's business, CRC shall reimburse Developer
for sucn expenses
(d) Statement. At such time that CRC conf.rms that the Equipment and the Warranties
conform to the Equipment Specifications (reflecting any Change Orders), CRC shall execute
a staternent in favor of Developer stating that Developer has: (i) acquired the Equipment, and
obtained (and delivered to CRC) the Warrant.es, in accordance with the Equipment
Specif cations (reflecting any Change Orders), and (ii) no further obligations with respect to the
Equipment and the Warranties (including that CRC shall be responsible for pursuing any
claims under the Warranties).
(e) Sole Warranties. CRC acknowledges that (1) Developer is not making any
independent warranties with respect to the manufacture, fabrication, and /or supply of the
Equipment; and (ii) although Developer is responsible for obtaininc the VVarrant:es, Developer
is not respons ble cr liable for: (A) enforcing the Warranties; or (B) a failure by any
manufacturer, fabricator, and /or supplier, as applicable, to honor the VVarranties.
9. Acquisition of Equipment- Payment.
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(a) Payment Period 1.
(i) During Payment Period 1, CRC shall pay the Payment
Period 1 Installments to Developer Upon receipt thereof, Developer timely
shall make the next payment due to the Lender pursuant to the Loan
Documents; provided that, if a Payment Period 1 Installment Payment is
delayed, then Developer shall make the payment due to the Lender promptly
upon receipt of payment by CRC.
( i) The Payment Period 1 Installments shall be: (A) in the amount
determined pursuant to Subsection 9(2)(ii:): (B) paid in arrears, on or before
each Payment Due Date, and (C) subject to adjustment pursuant to
Subsection 9(c)
(i++) Because the amount of the Payment Period 1 Installments to which
Developer is entitled may fluctuate due to: (A) changes in the Loan Rate,
and/or (B) increases or decreases in the Loan Balance; on the Equipment
Loan Closing Date (in the case of the Projection Notice for the first Payment
Period 1 Irst2llrnent), and within the period between the first and fifth
business days of each February, May, August, and November durng
Payment Period 1, Developer shall deliver to CRC a Projection Notice. The
amount set 'orth in the Projection Notice shall be: (A) basec on Developer's
reasonable projection of: (1) the interest payment on the Loan (using the
same metnod of calculation as the Lender); and (2) the Administrative
Payment; for the next quarter, and (B) the amount of the Payment
Perod 1 Installment due and payable by CRC on or oefcre the next occurring
Payment Due Date.
(b) Payment Period 2.
(.) During Payment Period 2, CRC shall pay the Payment
Period 2 Installments to Developer. Upon receipt thereof, Developer timely
shall make the next payment due to the Lender pursuant to the Loan
Documents; provided that, if a Payment Period 2 Installment is delayed, then
Developer shall make the payment due to the Lender promptly upon receipt
of payment by CRC .
(ii) The Payment Perioa 2 Installments shall be: (A) in the amount
determined pursuant to Subsection 9(b)(iii); (B) paid in arrears, on or before
each Payment Due Date; and (C) subject to adjustment pursuant to
Subsection 9(c).
(iii) Because the Payment Period 2 installments to whicn Developer is
entitled may fluctuate due to (A) changes in the Loan Rase, and /or
(B) decreases in the Loan Balance; on the first day of Payment Period 2, and
within the period between the first and fifth business days of each February.
May, August, and November during Payment Period 2, Developer shall
deliver to CRC a Projection Notice. The amount set forth in the Projection
Notice shall be: (A) based on Developer's reasonable projection of. (1) the
pr.ncipal and interest payment on the Loar. (using the same method of
calculation as the Lender); and (2) the Administrative Payment; for the next
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qua -ter, and (B) the amount of the Payment Period 2 Installment due and
payable by CRC on or before the next occurring Payment Due Date.
(c) Adjustment. If the projected amount set forth in a Projection Notice was more or :ess
than the actual arnoanttowf.c h Developer was entitled on the Payment Due Date with respect
to which such Projection Notice applied, then. with the next Projection Notice, Developer shalt
deliver to CRC an Offset/Addition Notice Notwithstanding the terms and conditions of
Subsection 9(a)(iii) or 5(b)(iii), as applicable, on or before the next occurring Payment Dce
Date CRC shat pay to Developer the amount set forth in the current Projection Notice,
adjusted by the amount of the Offset'Additicn Amount, as set forth in the Offset/Addition
Notice
(d) Partial Prepaymen„ CRC may make a Partial Prepayment at any time, providec that,
:f a Partial Prepayment is made more :han 90 days before the maturity date of tne Loan, then,
in connection with such Partial Prepayment, CRC shall be obligated to pay any prepayment
premium or penalty required by the Loan Documents. If CRC makes a Partial Prepayment,
then Developer prompt'y shall pay the amount o` such Partial Prepayment to the Lerder for
application against the Loan Balance.
(e) Clos ng Payment. Subject to tne exercise by CRC of the Full Prepayment Option, cn
the date of which Payment Period 2 expires, CRC shail pay the Closing Payment tb-
Developer Prompt.y thereafter, Developer shall pay the Closing Payment to the Lerder,
thereby paying off the Loan in full
10. Acquisition of Equipment- Prepayment.
(a) Payment Period 1. CRC may exercise the Full Prepayment Option, to be effective at
any time during Payment Period 1, by delivery of the Full Prepayment Notice Within ten days
after receipt by Developer of the Full Prepayment Notice, CRC and Developer, each acting
reasonably, shall agree on the Full Prepayment Closing Date.
(b) Payment Period 2. CRC may exercise the Full Prepayment Option, to be effective at
any time during Payment Period 2, by delivery of the Full Prepayment Notice. Notwithstanding
the foregoing, if there is a Replacement Loan, then, to the extent that the Replacement Loan
Documents prohibit the exercise of the Full Prepayment Option, CRC shall not have the right
to exercise the Full Prepayment Option so long as such prohibition is in effect; provided :hat,
regardless of any such prohibition in the Replacement Loan Documents, CRC shall have the
right to exercise the Full Prepayment Option during the 90 days immediately preceding the
expiration of Payment Period 2 Within ten days after receipt by Developer of the Full
Prepayment Notice, CRC and Developer, each acting reasonably, shall agree on the Full
Prepayment Closing Date; provided that. if the Full Prepayment Notice is delivered more :han
90 days prior to the expiration of Payment Period 2, then the Fula Prepayment Closing Date
shall not occur for at least 30 days after delivery of the Full Prepayment Notice.
(c) Full Prepayment Price. If CRC properly exercises the Full Prepayment Option, then,
in ,ieu of the remainder of the Purchase Price, CRC shall pay the Full Prepayment Price.
Promptly thereafter, Developer shall pay the Full Prepayment Price to the Lender thereby
paying off the Loan in full.
11. Equipment Closing. On the Equipment Closing Date, Developer snail transfer to CRC title to the
Equipment. In connection with such t- ansfer: (a) CRC shall pay either the Closing Payment or the Full
Prepayment ?rice, as applicable; anc (b) Develope• shall deliver to CRC a fully executed bill of sale witn full
081109.14,0,1_2,1,Stalirrent CortracI-PAC Equip—ant Hercantre via v,od
-10-
O
warranties of t-.tle transferring the Equipment tc CRC free of all liens, security inte'ests, and equipment
leasehc ds, wh ch bill of sale shall be in the form attached hereto as Exhibit G.
12. Options.
(a) Fixed Rate. So long as: (i) there is no continuing Event of Default by CRC hereunder;
(ii) CRC has not: (A) defaulted under the Tri -Party Agreement or the Collateral Assignment
beyond applicable cure periods; or (B) taken any other action; the result of which is that
Developer no longer has the right to exercise the Fixed Rate Option; and (iii) the Fixed Rate
Option remains available urder the Loan Documents; Developer, upon receipt of writ :en
request and otherwise in accordarce with the Loan Documents, shall exercise the Fixec Rate
Option
(b) Extension. So long as: (i) there is no continung Event of Default by CRC hereunder,
(ii) CRC has not: (A) defaulted under the Tr -Party Agreement or the Collateral Assignment
beyond applicable cure periods; or (B) taken any other action; the result of which is that
Developer no longer has the right to exercise the Extension Option; and (iii) the Extension
Option remains availab'e under the Loan Documents. Developer, upon receipt of writ :en
request and otherwise in accordance with the Loan Documents, shall exercise the Extension
Option.
(c) Replacement Loan. So long as there is no continuing Event of Default by CRC
hereunder, at the request of CRC, Developer shall exercise commercially reasonable, good
faith efforts to obtain the Replacement Loan. Developer shall be deemed :o have satisfied
its obligation to exercise commercially reasonable, good faith efforts to obtain the
Replacement Loan if Developer (i) retains a qualified finance professional to aid Developer
in obtaining the Replacement Loan; (ii) cooperates in good faith with the efforts of such finance
professional, (iii) cooperates in good faith w.th the efforts of CRC in connection with obtaining
the Replacement Loan; and (iv) provides to CRC monthly reports with respec: to the progress
made in obtain ng the Replacement Loan; provided that, if it appears that the Replacement
Loan cannot be obtained, then such reports shall set forth any alternate re- financings for the
Equipment Loan that Developer or its finance professional has identified as possible
substitutions for the Replacement Loan. If Developer obtains the Replacement Loan. then.
(1) a: the closing with respect thereto: (A) Developer and the Replacement Lender shall
execute the Replacement Loan Documents; and (B) CRC, Developer, and the Replacement
Lender shall execute the Replacement Tri -Party Agreement; and (ii) if Developer (as opposed
to CRC) obtained the Replacement Loan, CRC shall pay to Developer a fee in the amount of
1910 of the Unamortized Balance.
13. Affirmative Obligations. Developer acknowledges and agrees that at all times, Developer shall.
comply wth the covenants and agreements set forth in this Section.
(a) Developer shall comply with all Laws in. (i) the conduct of its ousiness and other
operations; and (ii) the performance of its obligations under the Equipment Acquisi:ion
Agreement, this Contract, and the Loan Documents.
(b) Developer shall keep in full force and effect, without any violations by Developer, any
and all filings or registrations with any Agency necessary in connection with (i) the
performance by Developer of its obligations under the Loan Documents. (ii) the acquisition of
the Equipment in accordance with this Contract and the Equipment Acquisition Agreement;
or (iii) the sale of the Equipment to CRC in accordance with this Contract.
OB1109 1410.L2,Ins.allnent Cortracl -PAC Eqoprrenl Mercanti e via wpd
(c) If any proceeding, inquiry, or investigation is pending or threatened against Developer
or any property of Developer, an adverse decision with respect to which would materially and
adversely a`fect: (i) the business, operations, or financial concition of Developer (ii) the
acquisition of the Equipment in aCcordance w th tnis Contract and the Equipment Acquisition
Agreement; andfor (iii) the sale of the Equipment to CRC in accordance with this Contract,
then Developer shall: (i) notify CRC immediately ,n writing; (ii) preoare and submit to CRC for
'its reasonable approval a written plan for addressing and /or responding to such proceedinng,
inquiry or investigation; and (i;i) address and /or respond to such proceed:ng, inquiry, or
investigation in accordance with the plan approved by CRC.
(d) At all times, Developer shall. (i) keep the Equipment free from any and all liens.
claims, security interests, encumbrances, and restrctions, except for this Contract; and
(ii) defend the Equipment against the claims and demancs of others.
(e) Deve;cper shall keep and maintain true, correct, accurate, and complete Books and
Records All Books and Reco •-ds sha'i be kept and ma'ntained in accordance with general'y
accepted accounting principles consistently applied.
(f) CRC and its attorneys. accountants, representatives, architects, engineers, and
consultants at al, reasonable t mes shall have (i) free access to, and rights of inspection of
the Books ap.d Records; and (ii) the right to audit, make extracts from, and receive from-- -
Developer originals or accurate copies of, the Books and Records
14. Negative Covenants. Developer acknowledges and agrees tnat, at all times, Developer shall comply
with the covenants and agreements set forth in this Section.
(a) Except as approved by CRC (1) there shall be no Transfer by Developer, and
(11) Developer shall rot cause or permit any Transfer. The execution by CRC of the Collateral
Assignment shall not be deemed to be a consent by CRC to any Transfer.
(b) Developer shall not: (i) file any financing statement covering all or any portion of the
Equipment in any public office, except financing statements in favor of the Lender; or (ii) cause
or permit any such financ ng statement to be filed
(c) Developer shall not: (i) change its name; (ii) merge into, or consolidate with, any other
entity, or otherwise reorganize; (iii) permit any change in the members of Develope• or the
percentage o` ownership in Deve:cper, if the effect of such change is that Developer no forger
is controlled by, or under common control with, r "l ; or (iv) fail to promptly
notify CRC in writing of any change in :he members of Develo r or the percentage of
ownership in Developer, tom' (e\i ) L` - tD,
(d) Developer shall not: (i) amend, modify, or restate the articles of organization or
Pis =t,c- %� �
ope,at:ng agreement of Developer; (ii) cause or permit any such amendment, modification,tuU.��
or restatement. or (iii) be dissolved, wound up, or converted to another type of entity, or have . ocCI V-=ti.
its existence as a I.mited liability company terminated,
(e) Developer shall not: (i) sell, convey, or transfer to any person any interest in
Developer; (ii) otherwise encumbe•, pledge, cr assign ary interest in Developer; (iii) grant any
security interest in any inte •-est in Developer; or (iv) cause or permit any such sale,
conveyance, transfer. encumbrance, pledge, assignment, or grant of security interest.
-12-
021105 1410.L2 Ins:afnent Contract -PAC Egwp nen! Me- =ankle ,1a wpd
(f) Developer shall not make or permit tc be made any material change in the characte-
of its business as currently conducted.
15. Liens /Encumbrances. Neither Deve cper nor CRC shall suffer cr cause the filing of any mechanic s,
supplier's, or similar lien aganst the Equipment, or any part thereof. If any mechanic's, supplier's, or similar
lien is filed against the Equipment, or any part thereof, for work claimed to have been done for, or materials
claimed to have been furnished to, either Developer or CRC, then Developer or CRC, respectively, shall cause
such mechanic s, supplier's, or similar lien to be discharged of record within 30 days after notice of the filirg
by bonding, or as provided or required by law. Nothing in this Contract shall be deemed or construed to.
(a) constitute consent to, or request of, the performance of any work for, or the furnishing of any materials to,
either party; or (b) give either party the right or authority to contract for, authorize, or permit the performance
of any work, or the furnishing of any materials; to the extent that the fo•egoing would permit the attachment
of a mechanic's, sJpplier's, or s miler lien to the other party's interest in the Equipment
16. Preservation. If Developer fails to: (a) make any payment under the Loan Documents or the Tn -Party
Agreement when due: or (b) timely observe or perform any obligation to be observed c- performed by it
pursuant to the Loan Documen :s or the Tri -Party Agreement; then: (a) CRC, at its option, but without: (i) any
duty or obligation to do so; or (ii) any waiver or release o` any default by Developer; may make any such
payment or observe or perform any such obligation as necessary or appropriate to protect or defend (i) the
Equipment Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the Equipment and /or
the interest of Developer therein, and (b) Developer shall pay, upon receipt of-written demand, all reasonaole
costs and expenses incurred by CRC in connection with making any such payment or observing or performing
any such obligat.cn (ncluding, without limitation, reasonable attorneys' fees).
17. Events of Default. Each of the following shat; be deemed to be an "Event of Default" by Developer
or CRC, as applicable:
(a) CRC's failure to pay any Installment Payment when due, provided that, in the case of
the first two such failures in any given 12 month period, such failure shall not constitute an
Event of Default unless such failure continues for five business days after Develope- delivers
written rotice thereof to CRC.
(b) Developer's failure to carroty witn the terms and conditions of the Loan Documents;
provided that, if such failure is due to CRC's failure to pay any Installment Payment or the
Closing Payment when due, then such failure shall not be an Event of Default unless and until
the failure by Developer continues for a period of five business days after CRC pays to
Developer the delinquent Installment Payment or Closing Payment, together with any late fees
for which the Loan Documents provide. If Developer s failure to comply with the terms and
conditions of the Loan Documents is due to CRC's failure to satisfy its obligations under the
Tri -Party Agreement or the Replacement Tri -Party Agreement, then such failure by Developer
shall not be an Event of Default.
(c) Developer's failure to comply with the terms and conditions of the Equipment
Acquisition Agreement, and the continuance of such failure beyond any applicable cure period
specified in tie Equipment Acquis tion Agreerne.nt; provided that, if no cure period is specified,
then such failure shall not constitute an Event of Default unless such failure continues for 15
days.
{d) the `allure of Developer or CRC to observe or perform any term or condition of this
Contract to be observed or performed by Developer or CRC, respectively: (i) with respect to
the obligation to pay money (other than payment by CRC of an Installment Payment), if such
-13-
081109,1410 L2,Installmerl Contract.PAC Equ pment Mercantile v14 wpd
failure is not cured within ten days after such payment is due; and (ii) with respect to any other
ob,ication, if such failure is not cured within the Cure Pe•iod.
(e) Any' (i) Transfer by Developer, except as expressly permitted .n this Contract or any
of the Loan Documents; or (ii) breach or violation of, any covenant or agreement set forth in
Subsection 9(b), 9(c), 9(d), cr 9(f) of the Loan Agreement.
(f) An assignment or delegation by either party of any of its rights or obligations
hereunder, except as permitted by Section 20. •
(g) The licuidation o- the sale, transfer, conveyance, assignment, pledge; or otner
disposition of substantially all of the assets of CRC or Developer.
(h) CRC or. Developer: (i) institutes or consents to any proceedings' (A) in insolvency or
bankruptcy; (B) for the adjustrrent, liquidation, extension or composition, or arrangement of
debts; or (0) for any other relief; under any Law with respect to the relief or reorganization o-
debtors; (ii) is adjudicated a bankrupt, fi,es an answer acmitting bankruptcy or insolvency, or
in any manner is adjucged insolvent, (iii) makes an assignment for the benefit of creditors; or
(iv) admits in writing an inability to pay debts as they become due.
(i) An #proceecing: (i) in insolvency or bankruptcy; (ii) for the adjustment. liquidation--
extension or composition, or arrangement of debts, or (iii) for any ether relief: under any Law
with respect to the relief or reorganization of debtors is instituted against CRC or Developer
and such proceeding is not discharged or dismissed within 60 days.
(j) Any portion of the Equipment; cr any substantial portion of the other property or assets
of CRC or Developer, is placed in the hands of any receiver, trustee, c- other officer or
representative of any court, and such receiver, trustee, or other officer or representative is not
discharged or dismissed within 60 days, or CRC or Developer consents agrees, or acquiesces
to the appointment of any such receiver, trustee, or other officer or representative
(k) Any lienholder or creditor shall initiate an action to enforce or foreclose a ten or
security interest on all or any portion of the Equipment. whether such security interest or lien
is superior, equal, orjun :or to the security interest or lien held therein oy the Lender
(I) The making or filing of any levy or execution on, or any seizure, attachment, or
garn,shment of, any portion of the Equipment or the interest of Developer therein.
18. Remedies.
(a) Remedies. If there is an Event of Default, the the non - defaulting party, without
further .notice or demand, shall have the right to exercise any rghts and remedies available to
it at law or in equity. The rights and remedies available to the non - defaulting party shall
include, without limitation, the following:
(i) if the defaulting party has failed to perform any of its obligations under
th s Contract, enjoining the failure or specifically enforcing the performance
of such obligation;
(ii) if the defaulting party has failed to perform any of its obligations under
this Contract (other than the obligation to pay any amounts due to the
non- oefault'.ng party), performing the obligation that the defaulting party has
-14-
081109,1410 L2Insta Invent Contract -PAC Equipment Mercantile Oa wpd
failed to perform; provided that the performance by the non - defaulting party
of such obligation shall not be construed to be a waiver of the Event o=
Default; and
if CRC is the defaulting party, then Developer may accelerate
payment of the Full Prepayment Price, which would have the same effect as
if CRC had exercised the Full Prepayment Option; prov ded that the Full
Prepayment Closing Date shall occur cn a date designated by Developer.
(b) No Waiver. Neither: (i) a waiver by either party of an Event of Default, nor (u) an
exercise by either party of any right cr remedy with respect to an Event of Default. shall be
deemed either to: (i) constitute a waiver of any subsequent Event of Default. (ii) release c-
relieve the othe• party, from performing any of its obligations under this Contract: or
(iii) constitute an amendment or modification of this Contract. If Developer accepts any
Installment Payments during the continuance of an Event of Default by CRC, then such
acceptance shall not be construed as a waiver of: (i) such Event of Default; or (11) any -fight or
remedy of Developer with respect to such Event of Default. The rights and remedies
hereunder are cumulative, and no (i) right Or remedy shall be deemed to be, or construed as,
exclusive of any other right or remedy hereunder, at law or in equity; or (ii) failure to exercise
any right or remedy shall operate to prevent the subsequent exercise of such right or remedy
(c) Damages. The non - defaulting party may recover from the defaulting party all
damages that the non - defaulting party incurs: (i) by reason of any Event of Default by t'ne
defaulting party; and/or (ii) in connection with exercising its rights and remedies with respect
to any Evert of Default; together with interest thereon at the Default Rate. All such amounts
shall be due and payable by the defaulting party immediately upon receipt of written demand
from the other party, and the obligation of the defaulting party to pay such amounts shall
sure ve the acquisition by CRC of the Equipment.
19. Notice. Any notice required or permitted to be given by either party to th.s Contract shall be in writing,
and shall be deemed to have been g,ven when: (a) delivered in person to the other party; (b) sent by facsimile.
with electronic confirma :ion of receipt; or (c) sent by national overnight delivery service, with confirmation of
receipt, addressed as follows: to Developer at 770 3ra Avenue Southwest, Carmel, Indiana 46032,
Facsimile: 317 - 587 -0340, Attn: Bruce Cording ley; and to CRC at City of Carmei, Indiana, One Civic Square,
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 1500, Indianapolis, Indiana 46204, Facsimile: 317 - 231 -9900
Either party may chance its address for notice from time to time by del.vering notice to the other party as
provided above. All Installment Payments shall be delivered to Developer at the address set forth in or
specified in accordance with, this Section.
20. Assignment. CRC shall not: (a) assign this Contract or any interest herein or (b) delegate any duty
or obligation hereunder; except as permitted by the Tri -Party Agreement or the Replacem.ent Tri -Party
Agreement, as applicable Notwithstanding any assignment as permitted by the Tri -Party Agreement or the
Replacement Tri -Party Agreement, as applicable: (a) CRC shall remain fully liable to perform all of its
obligations under this Contract; and (b) a consent by Developer to any assignment shall not release CRC from
such performance; provided that, if, in the case of an assignment to a City Agency as permitted by the Tri -Party
Agreement or the Replacement Tri -Party Agreement, as applicable, the obligations of CRC hereunder become
General obligations of the City, then CRC shall be released from performance of any obligations that first arise
after the date of such assignment. Any transfer of this Contract by operation of law (including, without limitation,
a transfer as a result of merger, consolidation, or liquidation of CRC) shall constitute an assignment for
purposes cf this Contract Developer shall not: (a) assign this Contract or any interest herein; or (b) delegate
any duty or obligation hereunder; except as permitted by the Tri -Party Agreement or the Replacement Tn -Party
-15-
06109 1410:L2.Ir.stalrnent Conlracl.PAC Equ,pmerl Mercanid=- via wpd
Agreement, as applicable, provided that. notwithstanaing any assignment: (a) Developer shall remain fuliy liable
tc.1 perfcTn al• of its obligators under this Contract; and (b) a consent by CRC to any ass gnment shall not
release Developer from such perfo-mance.
21. Mutual Indemnification. Each of CRC and Developer shall indemnify and hold harmless Developer
and CRC, respectively, from and against any and all Claims arising from, or connected with: (a) the negligence
or wilful misconduct of: (i) CRC or Developer, respectively; or (ii) any party acting by under, through, or on
behalf of CRC or Developer, respectively; andior (b) the: (1) breach by CRC or Developer, respectively, of any
term or condition of this Contract the Tri -Party Agreement or the Replacement Tri-Paly Agreement, and
(ii) the resulting exercise by Developer or CRC of its rights and remedies with respect to such default
22. Miscellaneous.
(a) Prior .Agreements. Except ir the case of the Tri -Party Agreemert all prior
rep'esentations and agreements by or between Developer ano CRC with respect to the
obligations set forth ir th:s Contract are merged into, and expressed in, this Contract. This
Contract shall not be amended, modified, or supplemented, except (i) by a written agreement
executed by both Developer and CRC, and ('i) as permitted by the Tri -Party Agreement or the
Replacement Tr:-Party Agreement, as appl:cable. This Contract may be executed in separate
counterparts, each of which shall be an original, but all of which together shall constitute a
sincle instrument. - -
(b) Construction. This Contract shall be construed in accordance with the laws of the
State of Indiana . The captions of this Contract are for convenience only and do not in any way
li it c' alter The terms and conditions of this Contract. The invalidity or unenfcrceability of any
term or condition of this Contract shall not affect the other terms and conditions, and this
Contract shall be construed in all respects as if such invalid or unenforceable term or condition
had not been contained herein. All exhibits referenced herein are attached hereto and
incorporated herein by reference
(c) Successors. Subject to the terms and conditions of Section. 20, this Contract. and all
cf the terms and conditions hereof, shall. (i) inLre to the benefit of; anc (ii) be binding upor;
the respective heirs, executors, administrators, successors, and assigns of Developer and
CRC. All indemnities set forth in this Contract shall survive the acquisition by CRC of the
Equipment
(d) Authority Each person executing th's Contract represents and warrants that (i) he
or she has been authorized to execute and deliver this Contract by the entity for which he or
she is signing; and (ii) this Contract is the valid and binding agreement of such entity,
enforceable in accordance with its terms.
(e) Suits. All proceedings arising in connection with this Contract 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. Developer waives. to the extent permitted under
applicable law. (i) the right to a trial by jury; and (ii) any right Developer may have to: (A) assert
the doctrine of "forum non ccnveniens "; or (8) object to venue.
{f) Time Periods. All references in this Contract to periods of days shall be construed to
refer to calendar, not business, days. unless business days are specified. Notwithstanding
anything to the contrary set forth herein, if either party is delayed in or prevented from
observing or performing any of its obligations hereunder, or satisfying any term or condit on
hereunder, in any case as the result of (i) an act or omission of the other party: or (ii) any ether
-16-
091109 141:,L2.Inslallrent Contract PAC Eg■p•nen: Mercan:Ile a1a wpd
•
•
•
cause that is not within the reasonable control of such party (including, without limitation,
inclement weather the unavailability of materials, equipment, services c' labc!', and utility or
energy shortages or acts or omissions of public utility providers); then: (i) observation,
performance, or satisfaction seal be excused for the period of such delay or prevention; and
(ii) the dates, and other deadlines for observation, performance, and satisfaction shall be
extended for the same period.
IN WITNESS WHEREOF, Developer and CRC have executed tnIs Contract on the day and
year set forth above.
C•8110•9.' 410 L2.Instal me. d Contact -PAC Equipmert td=- rca- Ule.v1 9 wpd
-17-
DEVELOPER:
VILLAGE FINANCIAL, LLC
By:
P'inted:
Title:
CRC:
THE
CITY OF CARMEL
REDEV OPMENT COMMISSION
B
Ronald E Carter, P•esident
•
•
•
Index to Exhibits
Exhibit A Depiction of PAC Site
Exhibit B Equipment Schedule
Exhibit C • Equipment Specifications
Exhibit D Form of Collateral Assignment
Exhibit E Terms and conditions for Fixed Rate Option
Exhibit F Terms and conditions for Extension Option
Exhibit G Form of Bill of Sale
Exhibit H Form of Tri -Party Agreement
081109.14' 0,L2,Irstallmenl Corlrac:•?AC Equ pment N.erc_nti.e v1a wpd
-18-
fl
'7'.
11 11 1111111111.1011111:1111111111111111XMA
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intI ittommonose• 1,11, ,•2•1•10111 &PM •
11111
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ate 4111 .1°:41-1
-50
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ONMENSINPUrErni°55r -17 I
1[
EXHIBIT B
Equipment Schedule
PAC Equipment
Commence acquisition by end of 2C09.or first quarter of 2010
Complete acquisition by end of 2010
•
s
DIVISION 11 - EQUIPMENT
• •
CONTINUATION PAGE
jR ekri c9
C T L:.�:�-71 . _
Payment Application containing Contractor's signature is attached
/'aye of -4)
PROM -Cl 7666 A1't'LICA !ION 11 3
Carm^I ('AC OAT E OF APPLICATION 07715/2000
PERIOD 1HRU 07/31/2009
PROJECT Its 2(i'u,
A
f3
D 1 E
F
II EM d
1
2
3
4
5
6
7
U
9
1U
11
12
13
14
15
10
WOI4K DESCRIPTION
Bond
Engineering /Project
Man agement/Mohdl7 ahon
Master Control Svs:em
Control System Electrical Work
Control System Tum on and
Testing
CYC. FON, I glht,ng'Trus:•
Motorized Rigging
CYC, (`OH, Lghunq Truss
Motorized Rigging Installation
Canopy Rigging and Cable Reels
Canopy Rigging and Reel
Installation
Loudspeaker Motorized P.iyyiny
Loudspeaker Rigging Installation
Vatiahle Acausur. Curtains
Curtain Installation
Variable AC,cusln: TracksiEilocking
Actuators
track & Actuatnr Installation
ExlensIo,
SCHEDULED
AMOUNT
$47,2S6 00
5415,534 00
523E 100 00
533.150 00
566.900 00
5,1,356 100 00
5514,200 00
5.1,301,000 00
5349,000 00
5310.200 00
555,800 00
3118,000 00
517,700 00
542!) 000 00
5131.745 00
.1;r17 f,21 00
;(J
SUB-TOTALS
COMPLETED WORK
AMOUNT
PREVIOUS
PERIODS
547,266 00
541,553 40
50 00
50 00
50 00
5000
`;,0 00
50 00
30 00
50 00
5000
5000
50.00
5000
50 00
5000
I-I
STORED TO -1AL '0 BALANCE
AMOUNT MATERIALS COMPLETED AND COMP. 1'(7
71 IIS PERIOD (NOT IN D OR Eli. ';TORF_D (0 r C) COMP( E I ION
(DBE +F) (C(3)
50 00 50 00 547,266 00 100 ", 50 90
516.621 36 SO 00 355,174 76 1450 531,7,36') 2•4
50 00 50 00 50 00 0 50 5238,100 00
5000 8000 5000 050 333.75000
50 00 SO 00 50 09 050 5017,000 00
5000 5000 50.00 00, 71,351,,)100 00
50 00 50 00 5'0 00 0`:b ' S514.100 00
50 00 50 00 50 00 050 51,301.000 (.10
50 00 50 00 SO 00 0% 53411,300 00
50 00 50 00 50 00 0,/, 5316 200 00
50 00 50 00 30.00 0'(7 555.800.00
50.00 50.00 ; 50.00 050 511)3,000 00
S000 5000 5000 0 50. 517,70000
50 00 50.00 50 00 0`,6 542.6,1)00 00
50 000 50 00 50 00 00, 5:131,7-15 00
30 00 20 00 53 011 O % 55117 521 ,/r)
7 316 00
CON I INUA110N 'A ,i- F -OR PAYMEN I A111•Elms■' I;'t!
5588.819 40
51b.521 351- 50.00 ,510`,''140 Jb 2' /■ 050021,81 5.1
RI_ )AINAGE
(If Vanahln)
CONTINUATION PAGE
00 0J1-. C' I 25(15
Comty! PAG
Payment Application containing Contrac,tory, signature IS dllaChr;a
ITEM
WORK DESCRIPTION
17 Lift Installatton
18 Extension urt Wagons
19 Extension 0f1 Wagon Installation
20 House Mix Lift & Railings
21 House Mix Lift Installation
27 House Mix Lill Vvoiloni.,
23 I louse Mix LIM Wagon Installation
24 Loudspeaher Warm,
75 1 oudspearker Wagon Installalion
20 Demountable Risers
27 Demountable Riser Installation
28 Chorus Wagons
29 Package 5170 Anowanco
30 Packaye 5180 Allowance
31 Package 5180 Allowance
32 CAD As Huilts 5170 & 5180
Allowance
SUB TOTALS
•
J
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— - -
APPLICATION II
(13 OF APPLICATION
t3Er00c) it-utzti
0p0.10(.7
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nowt FTFD vynco<
SCHEDULED
AMOUNT
590,000 00
3111,300 00
518,000.00
3218,000.00
550,000.00
570,400 00
sll; 000 00
535..184 00
27,000 00
T.45.000.0n
54.800 00
5159 000.00
5200,000 00
5200,000 00
55.000 00
0:.!0 30(1 00
s 715.600 00
CON1INUATION PAGT FOR PA T'MUN") Alt. 'I I;
AMOUNT
PREVIOUS
PERIODS
30 00
30 00
2000
20 00
2000
50 00
so 00
50 00
s0.00
5000
50 DO
SO 00
50 00
50 00
50 00
50 00
AMOUNT
"(HIS PFRIOD
:31 OREL) TOTAL
MATFR kat S COmPLCTCD AND
(NOT IN 0 OR E)1, STORED
iD E + F)
•^-
50 00
50.00
SO 00
50.00
5003
50 00
50 00
50 00
50 00
5000
50 00
20 00
50 00
50 00
50 00
30 00
253.519 ,u.1 11,.,,0217.53
50 00
50 00
50 00
50 00
0000
50 00
so oo
so 00
50 00
50.00
30 00
50 00
$0.00
50 00
50 00
20 00
50 00
!1,1) 1311
50 00
50 00
SO 00
50.00
50 00
50 00
•,(D no 10 00
50 00
50 00
SO 01.)
'30 00
SO 20 01')
; $ 11.1: 4,11)
COMP
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050
0%
0%
0%
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0%
0%
055
05)
H
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COMPlf TION
(C-G)
590 000 00
5111,309 00
518.000 00
3248,000 00
560,011r)
S/0,0011.00
716,000 00
535 704 no
57,000 00
545,0013.00
51,800 00
51E9.000 00
2200 non no
52110.0INI 0'2
55,300 00
0r' r: tu.'■
111
07/15/200t1
07/31/2009
2fi95
REIAINAC-E
(If Variab)e.)
CONTINUATION PAGE
Payment Application containing Gontraclor 5 sign:5Iure is alia,:-:rv.?0
A
P'r■0.11
ITEM #
WORK DESCRIPTION
33
34
CAD As-BuiltS 5190 Allowance
- • _
SC, 1E0131 ED
AMOUNT
/ 'AC
COMPI E'IED WORK
AMOUNT
PREVIOUS
PERIODS
sb,non 00
-- 5194.000 00-
TOTALS r. r.in0 00
CONTINLIATION rAGF 100 l'ilYMF.-1,1T -r
50.00
SP0819 40
AMOUNT
1 HIS PLHIOti
SU 00
50 00
F
IORED
MATERIALS
(NOT IN D OR E)
50 00
50.00
•trii '.;•0
00
l'agot .4)
APPt ;CATION It
DATE- Or APPL ICATION
P0.0101, THPLI
PRO,WC r
'101 AL
COMPLETED AND
STORED
• (D • E
5090
5000
--4
•
0('1M0
(G IC)
BALANCLT.
TO
COMPLETION
lC-G)
55,000 00
5194,000 90
071,5/2009
07/31/2009
71399
RETAINACI-
vartable)
a
25310
PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
SECTION 11 13 00 - LOADING DOCK EQUIPMENT
PART 1 - GENERAL
1.01 RELATED DOCUMENTS
111300 -1
A. Drawings and general c•ovisions of the Contract, including General and Supplementary
Co +ndit;ens and Division 1 Specification Sections, apply to this Section.
1.02 SUMMARY
A. This Section includes the following:
1. Dock bumpe•s.
2. Dock levelers.
3. Truck restraints.
4, Light communication systems.
B. Related Sections include the following:
1. Division 3 Section "Cast -in -Place Concrete" for concrete work for recessed load-
ing dock equipment.
2. Division 5 Section "Metal Fabrications" for curb angles at edges of recessed pits
and loading cock platform edge channels.
3. Division 8 Sections le- overhead doors electrically interlocked to dock levelers.
4. Mechanical Section "Plumbing Specialties" for pit drains for loading dock equip-
ment permanently installed in pits.
5. Electrical Section "'interior Lighting" for dock lighting txtures
6. Electrical Sections for electrical wiring and connections �c- loading dock equip-
ment.
1.03 SUBMITTALS
A. Product Data: Include construction details, material descriptions, rated capacities, opc--
ating characteristics, furnished specialties, accessories, dimensions of individual compo-
nents and profiles, and finishes.
B. Shop Drawings: Show fabrication and installation details Include plans, e.evations, sec-
tions, details, and attachments to other work.
1. For installed yoducts indicated to comply with design Toads, include structural
analysis cats signed and sealed by the qualified professional engineer respons'-
ble for their preparation.
2. Wiring Diagrams: Power, signal, and control wiring.
C. Samples for Initial Selection: For each type of dock seal and shelter fabric indicated.
D. Maintenance Data: For loac ng dock equipment to include in maintenance manuals.
E. Warranties: Special warranties specified in this Section.
1.04 QUALITY ASSURANCE
A. Installer Qualifications: Manufacturer's authorized representative who is *.rained and ap-
p -oved for installation of units required for this Project.
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PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
111300 -2
1 Maintenance Proximity: Not more than two hours' normal ;ravel time from. In-
staller's place of business to Project site.
B. Source Limitat'ons: Ootain each type of loading doc, equipment through one source
from a single manufacturer.
1.05 PROJECT CONDITIONS
A. Field Measurements: indicate measurements on Shop Drawings.
1.06 COORDINATION
A. Coordinate installation of anchorages for loading dock equipment. Furnish setting draw-
ings, templates, and directions for installing anchorages, including sleeves, concrete in-
serts, anchor bolts, and items wiln integral anchors, that are to be embeddec in concrete
cr masonry. Deliver such items to Project site in time for installation.
8. Rzcessed Loading Dock Equipment: Coordinate size and location of pits to ensure
proper clearances and operation of equipment.
C. Electrical Requirements: Coordinate wiring requirements and current characteristics of
loading dock equipment with building electrical system. See Division 16 Sections.
1.07 WARRANTY
A. Special Warranty for Dock Levelers: Manufacturer's standard form in which manufacturer
agrees to repair or replace dock - leveler components that fail in materials or workmanship
within specified warranty period.
1. Warranty Period for Structural Assembly: 10 years from date of Substantial
Completion.
2. Warranty Period for Hydraulic System: Five years from date of Substantial Com-
pletion.
3. Warranty shall be for unlimited usage of the leveler for the specified rated capac-
ity over the term et the warranty.
PART 2 - PRODUCTS
2.01 MATERIALS
A. Steel Plates, Shapes, and Bars: ASTM 36/A 36M.
B. Rolled -Steel Floor Plate: ASTM A 786/A 786M, rolled from steel plate complying with
ASTM A 572/A 572M, Grade 55.
C. Steel Tubing: ASTM A 500, cold formed.
D. Welding Rods and Bare Electrodes: Select according to AVVS specifications for metal al-
loy welded.
E. Pressure - Treated Wood: DOC PS 20 dimension lumber, select structural grade, kiln
cried, and pressure treated with waterborne preservatives to comply with AWPA C2.
2.02 DOCK BUMPERS
A. Basis -of- Design Product: Dock bumpers are based on product listed below. Another
D
0
25310
PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
111300 -3
manufacturer's product of a similar and equivalent nature will be acceptable when, in the
Architect's sole judgment rendered during the bidding period, difiererces do not materi-
ally detract from the design concept or intended performance.
1. "DS 412 -14 "; Rite -Hite Corporation.
B. Manufacturers:
1. Kelley Company, Inc.; a United Dominion Company.
2. Pawling Corporation.
3. R. C. Musson Rubber Co.
4. Rite -Hite Corporation.
5. Serco; a United Dominion Company.
C. Anchorage Devices: Hot -dip galvanized steel anchor bolts, nuts, washers, bolts, sleeves,
cast -in -place plates, and other anchorage devices as required to fasten bumpers se-
curely in place and to suit installation type indicated.
r
D. Molded- Rubber Bumpers: Fabricated from molded - rubber compound reinforced with ny-
lon, rayon, or polyester cord; with Type A Shore durcmeter hardness of 80, plus or minus
5, when tested according to ASTM D 2240; of size and configuration indicated. Fab'icate
units with not less than two predrilled anchor holes.
E. Anchorage Devices: Hot -dip galvanized steel anchor bets, nuts, washers, bolts, sleeves,
cast -in -place plates, and other anchorage devices as required to fasten bumpers se-
curely in place and to suit installation type indicated.
2.03 RECESSED DOCK LEVELERS
A. General: Recessed, hinged -lip -type dock levelers designed for perrnanent installat on in
concrete pits preformed in the edge of loading platform; o` type, function, operation, ca-
pacity, size, and construction indicated; and complete with controls, safety devices, and
accessories required.
1. Basis -of- Design Product: "HD- 3086 "; Rite -Hite or a comparable product by one
of the following:
a. Blue Giant Equipment Corporation; Subsidiary of TBM Holdings, Inc.
b. Kelley Company, Inc.; a United Dominion Company.
c. McGuire, W. B. Co., Inc.; Division of Overhead Door Corporation.
d. Pentalift Equipmen: Corporation.
e. Pioneer Loading Dock Equipment.
f. POWERA1v1P; Division of Systems, Inc.
g. Rite -Hite Corporation.
n. Serco; a United Dominion Company.
B. Quality Standard: MH 30.1, "Safety, Performance and Testing of Dock Leveling De-
vices."
C. Rated Capacity: Capable of supporting 30,000 Ib. total gross load indicated without per -
manent deflection or distortion, as determined by actual tests according to MH 30.1.
D. Function: Dock levelers shall compensate for differences in height between truck bed
and loading platform in the following manner:
1. Vertical Travel: Provide operating range above platform level of sufficient height
0
25310
PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
1300 -4
to enable lip to extend and clear truck bed before contact. .
2. Automatic Vertical Compensation: Floating travel of ramp with Hp extended and
resting cn truck bed shall compensate automatically for upward or downward
movement of truck bed during loading and unloading.
3.
Automatic Lateral Compensation: Tiltir.g of ramp with lip extended and resting
on truck bed shall compensate automatically for canted truck beds of up to c
inch.es over width of ramp.
4. Lip Operation: Manufacturer's standard mechanism that automatically extends
and supports hinged lip on ramp edge with lip resting on truc{ bed over dock lev-
eler's working range, allows lip to yield under impact of incoming truck, and
automatically retracts lip when truck departs.
5. Automatic Ramp Return: Automatic return of unloaded ramp, from raised or low-
ered positions to stored position, level witn platform, as truck departs.
E. Hydraulic Operating System: Electric- powered hydraulic rasing and hydraulic lowering of
ramp, controlled from a remotely located push -button station. Equip leveler with a pack-
aged unit including a unitized, totally enclosed, ncnven:iLated electric motor, pump,_ mani-
fdrd reservoir, and valve assembly of proper size, type, and operation for capacity of lev-
eler indicated. Include means for lowering ramp below platform level with Hp retracted
behind dock bumpers. Provide a hydraulic velocity fuse connected to main hydraulic cyl-
inder to limit loaded ramp's free fall to not more than 3 inches
1. Remote - Control Station: S.ngle- button station of the constant- presswe type. en-
closed in NEMA ICS 6, Type 12 box. Ramp raises by repressing and holding
button; ramp lowers at a controlled rate by releasing button.
2. Remote - Control Station with Emergency Stop: Multibutton contrc! station with an
UP button of the constant - pressure type and an emergency STOP button of the
momentary- contact type, enclosed in NEMA ICS 6, Type 12 box. Ramp raises
by depressing and holding UP button; ramp lowers at a controlled rate by releas-
ing UP button. All ramp movement stops, regardless of position of ramp or lip, by
depressing STOP button. Normal operation resumes by engaging a manual re-
set button or by pulling out STOP button.
a. Dual -Panel Control Station: Remote-control station for operating side -
by -side dock levelers.
b. Master Panel: Control panel with integral fused disconnecting means for
operating dock leveler, dock door, and truck restraints.
3. Independent Lip Operation: Electric- powered hydraulic raising and hydraulic
lowering of lip, controlled independently of raising and lowering of ramp.
F. Construction: Fabricate dock - leveler frame, platform supports, and lip supports from
structural- or formed -steel shapes. Weld platform and hinged lip to supports. Fabricate
entire assembly to withstand deformation during both operating and stored phases of
service. Chamfer lip edge to minimize obstructing wheels of material - handling vehicles.
1. Clean -Pit Frame: Designed to support leveler at sides of pit, with no side -to -site
supports at front of pit floor.
2. Hinged Lip: Full wicth, piano -type hinge with heavy -wall hinge tube, wile gussets
on lip and ramp for support.
3. Toe Guards: Equip open sides of rising ramp over range indicated with metal toe
guards mounted flush with ramp edges and pro■ecting below ramp.
a. Finish: Factory finish dock levelers after assembly and testing. Paint toe
guards yellow to comply with ANSI Z535.1.
25310
0 PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
D
G.
11 1300 -5
4. Cross- Traffic Support: Manufacturer's standard method of supporting ramp al
platform level in stored position with lip retracted. Provide a means to release
supports to allow ramp to descend below platform level.
5. Maintenance Strut: Integral strut to.positively support ramp in up position during
maintenance of dock leveler.
6. Integral Dock Bumpers: Fabricated from 4 -inch- thick, heavy rnolded- rubber
compouno reinforced with nylon, rayon, or polyester cord; with Type A Shore du-
rometer hardness of 83; plus or minus 5, when tested according to
ASTM D 2240: Provide two dock bumpers for each recessed dock leveler, at-
tached to face of loading docK with expansion belts. •
Accessories:
1. Curb Angles: 3- by- 3- by -1i4 -inch galvanized steel curb angles for edge of re-
cessed leveler pit, with 1!2- inc,n- diameter by 6 -inch- long concrete anchors
welded to angle at 6 inches c.c.
2 Self - Forming Pan: Manufacturer's standard prefabricated, self- forming steel form
system for poured -in -place construction of concrete pit.
3. Night Locks: Manufacturer's standard means to prevent extending lip and lower-
ing ramp when overhead doors are locked.
4. Side and rear weatherseals.
5. Foam insulation under dock - leveler platform.
6. Abrasive skid - resistant surface.
7. Interlock: Leveler will not operate while overhead door is in closed position and
truck restraint is not engaged.
2.04 TRUCK RESTRAINTS
A. General: Manufacturer's standard device designed to engage truck's rear - impact guard
and hole truck at loading dock. Restraint shall consist of an iron or steel restraining arm
that raises until contacting rear - impact guard. Arm shall move vertically, automatically
adjusting to varying height of truck due to loading and unloading operations.
1. Basis -of- Design Product: Dok -LoK "SDL- 900 "; Rite -Hite or a comparable product
by one of the following:
a. Blue Giant Equipment Corporation; Subsidiary of TBivt Holair:gs, Inc.
b. Kelley Company, Inc.; a United Dominion Company.
c. McGuire, W. B. Co., Inc.; Division of Overhead Door Corporation.
d. Pentalift Equipment Corporation.
e. POWERAMP; Division of Systems, Inc.
f. Rite -Hite Corporation.
g. Serco; a United Dominion Company.
B. Restraining Capacity: Capable of restraining total gross load indicates without perma-
nent deflection or distortion.
C. Operating Range: Capable of restraining rear - impact guards within a range from 11 to 30
inches vertically above driveway, and from 0 to 12 inches horizontally in front of dock
bumpers.
D. Power Operating System: Manufacturer's standard electromechanical or hydraulic unit.
1. Remote - Control Station: Single- button station of the constant - pressure type,
weatherproof, enclosed in NEMA ICS 6, Type 12 box. Restraint is engaged by
depressing and holding button; restraint is released by releasing button.
25310
0 PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
4
0
11 1300 -6
2. Interlock: Leveler will not operate while truck restraint is not engaged.
E. Rear - Impact -Guard Sensor: Sensor detects presence of rear - impact guard[ and auto-
matically returns to stored position if rear - impact guard is not engaged;.
F. Caution Signs: Exterior, surface mounted; with black text on yellow background, and with
sign copy as follows. Provide one sign at each truck- restraint location.
Sign Copy in Forward and Reverse Text: "CAUTION, MOVE ON GREEN
ONLY."
G. Light Communication System: Red and green illuminated signal -iight sets, wi:1. lens ap-
proximately 4 inches in diameter, designed to indicate status to both dock attendant and
truck driver. Equip system with steel control panel located a: interior of dock that includes
illuminated lights indicating status of exterior signal lights. Provide signal -light se: and
control panel at each location indicated for light communication system. Enclose exterior
signal -light sets in steel or plastic housing with sunshade,
1. Automatic Operation: System is activated automatically when device engages
rear - impact guard. Provide on -cff switch located on truck- restraint control panel.
H. Alarm: Audible and visual system indicating tha: rear - impact guard is not engaged with
manual reset.
2.05 FINISHES, GENERAL
A. Comply with NAAMM's "Metal Finishes Manual for Architectural and Metal Products" for
recommendations for applying and designating finishes.
B. Finish loading dock equipment after assembly and testing.
C. Galvanizing: Hot -dip galvanize items as indicated to comply with applicable standard
listed below:
1. ASTM A 123iA 123M for iron and steel loading dock equipment.
2. ASTM A 153/A 153M for iron and steel hardware for loading dock equipment.
PART 3 - EXECUTION
3.01 EXAMINATION
A. Examine areas and conditions, with Installer present, for compliance witn requirements
for installation tolerances and other conditions affecting performance of loading docK
equipment.
B. Examine roughing -in for electrical systems for loading dock equipment to verify actual lo-
cations of connections before equipment installation.
C. Examine wails and floors of pits for suitable conditions where recessed loading dock
equipment is to be installed. Pits shall be plumb and square and properly sloped for
drainage from back to front of loading dock. -
D. Proceed with installation only after unsatisfactory conditions have been corrected.
3.02 PREPARATION
0
25310
PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
111300 -7
A. Coordinate size and location of loading dock equipment indicated to be attached to or re-
cessed into concrete or masonry, and furnish anchoring devices with templates, dia-
grams, and instructions for their installation.
B. Set curb angles in concrete edges of dock - leveler recessed pits with tops flush with load-
ing platform. Fit exposed connections together to form hairline joints.
C. Set cur'c angles in concrete edges of truck - leveler recessed pits with tops flush with
driveway. Fit exposed connections together to form hairline yoints.
D. Place self - forming pan system for recessed dock levelers in proper relation to loading
platform before pouring concrete.
E. Clean recessed pits of debris.
3.03 INSTALLATION
A. Ggnerai: Install Icadina dock equipment as required for a complete installation.
1. Rough -in electrical connections according to requirements specified in DM-
sion 16.
B, Dock Bumpers: Attach deck bumpers to face of loading dock in a manner that complies
with requirements indicated for spacing, arrangement, and position relative tc top of plat-
form and anchorage.
1. Welded Attachment: Plug-weld anchor holes in contact with steel inserts and fil-
let weld at other locations.
2. Bolted Attachment: Attach dock bumpers to preset anchor bolts embedded in
concrete or to cast -in -place inserts or threaded studs welded to embedded -steel
plates or angles. If preset anchor bolts, cast -in -place inserts, or threaded studs
welded to embedaed -steel plates or angles are not provided, attach dock bump-
ers by dril'.ing and anchoring with expansion anchors and bolts.
3. Screw Attachment: Attach dock bumpers to wood construction with lag bolts as
indicated.
C. Recessed Dock Levelers: Attach dock levelers securely to loao;ng dock platform, flush
with adjacent loading dcck surfaces and square to recessed pit.
D. Truck Restraints: Attach truck restraints in a manner that complies with requirements for
arrangement and height required for device to engage vehicle rear - impact
guard. Interconnect control panel and signals with dock leveler.
1. Wall - Mounted Units: Weld truck restraints to steel mounting plate embedded in
loading dock edge.
E. Dock Lifts: Attach dock lifts securely to floor of recessed pit.
3.04 ADJUSTING AND CLEANING
A. Adjust loading dock equipment for proper, sate, efficLent operation.
B. Test dock levelers for vertical travel within operating range indicated.
C. Restore marred, abraded surfaces to their original condition.
25310
PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
3.05 DEMONSTRATION
11 1300 -8
A. Engage a factory - authorized service representative to train Owner's maintenance per-
sonnel to adjust, operate, and maintain loading dock equipmen:.
END OF SECTION
0
o
D
O
25310
PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
SECTION 11 24 23 - WtNDO`A, CLEANING EQUIPMENT
PART 1 - GENERAL
1.01 RELATED DOCUMENTS:
112423 -1
A. Drawings and general provisions of the Contract, including General and.Supplementary
Conditions and Division 01 Specifications sections, apply to work of this section.
1.02 DESCRIPTION OF WORK:
A. This Section includes anchors for window cleaning equipment.
1.03 QUALITY ASSURANCE:
A. Manufacturer Qualifications: Firm with minimum of 5 years experience in successfully
producing window cleaning equipment similar to that indicated for this Project, with
sufficient production capac`.ty to produce required units without causing delay in the Work.
B. Installer Qualifications: Arrange for installation of window cleaning equipment specified in
this section by a firm with not less than 5 years of successful experience in the installation
of window washing systems similar to systems required for this project.
C. Qualify welding processes and welding operators in accordance with AWS D1.1
"Structural Welding Code - Steel,' and AWS D1.2 -90 "Structural Welding Code -
Aluminum."
1.04 SUBMITTALS:
A. Shop Drawings: Submit shop drawings showing complete layout and configurat;on of
complete window cleaning system, equipment locations and all other components ar.d
accessories. Shop drawings shall be prepared by a professional engineer and shall
clearly indicate design ar.d fabrication details. window drops, installation details and
rigging instructions and all necessary restrictive and non restrictive working usage notes
and general notes.
PART 2- PRODUCTS
2.01 ACCEPTABLE MANUFACTURERS:
A. Basis of Design: "Pro -Bel Enterprises Limited ", window washing equipment. Another
standard system of a similar and equivalent nature may be acceptable when the
differences do not materially detract from the design concept or intended performance as
judged solely by the Architect.
B. Equipment: Provide equipment and accessories typically required to accommodate
window cleaning operations.
1. Equipment typically provided by the window cleaning service, such as platform
and related items are not included.
C. Tie Back Lifeline Anchors:
1. Anchoring system shall be capable of resisting, without fracture or pull out, a
force of 5,000 pounds applied in any direction.
2. Safety anchoring eye shall be made of not less than 'A" diameter material or
equivalent with an eye opening of not less than 1.5 inch diameter or equivalent.
The anchor eye shall be made of stainless steel or other corrosion resistant
25310
PARCEL 7A, REGIONAL PERFORMING ARTS CENTER
CONSTRUCTION ISSUE
112423 -2
material. Bolts and connecting hardwa-e shall be made of stainless steel or hot
dipped galvanized material.
3. All steel bases shall be hot dipped galvanized mild steel.
4. AU roof anchors must be properly roofed in. All stand alone metal roof anchors
must be directly flashed into the roofing in a manner compatibly with the roofing
system. Fleshings for metal roof anchors are to be spun aluminum and seamless.
Top of anchor to be sealed with mastic tape and heat shrink rubberized
membrane. Rubber gaskets, worm gears, grommets anc pitch pans shall not be
used.
PART 3 - EXECUTION
3.01 PREPARATION:
A. Coordinate installation of anchors indicated to be attached to or recessed into concrete or
steel and furnish anchoring devices with templates, diagrams and instructions for them
installation.
1. ;r. __Coordinate delivery of anchoring devices to project-site-to avoid delaying
progress.
3.02 EXAMINATION:
A. Exam one job conditions before commencement of work. Commencement of work will
denote acceptance of job conditions unless unacceptable conditions a,e identified, in
writing, prior to commencement of work.
3.03 INSTALLATION:
A. Genera": Comply with manufacturer's detailed instructions for the installation of window
washing equipment and accessories.
Provide all items to be installed. Provide handling, installation instructions, anchorage
information, rough -in dimensions, templates and service requirements for completion of
the work in this Section. Assist or supervise, or both, the setting of ar.chorage devices
when handled by others. Provide advise and assistance with respect to construction of
work related to products specified in this section.
C. Install work true, level, tightly fitted, and flush to adjacent surfaces where required for
installation.
D. Provide anchorage and mounting devices required for the installation of each product
END OF SECTION
D
EXHIBIT • 9
FORM
COLLATERAL ASSIGNMENT,
LOCK BOX, AND
SECURITY AGREEMENT
Equipment
This Collateral Assignment, Lock Box, and Security Agreement (Equipment) (the
"Agreement "), is executed as of the _ day of , 2009, by and among
, having its principal office at (the
"Assignor "), Mercantile Bank, having its principal office at 12821 East New Market Street, Suite 301, Carmel,
Indiana 46032 (the "Assignee "), and The City of Carmel Redevelopment Commission, having its principal
office at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032 ( "CRC ").
1. Defined Terms.
Account Interest shall mean interest earned on funds on deposit in the Lock Box Account.
Administrative Payment shall have the meaning set forth in the Installment Contract.
Borrower Loan Account shall mean the "Borrower Loan Account" defined in, and established pursuant to,
the Loan Agreement.
Borrower Loan Account Interest shall mean interest that: (a) has accrued on the funds on deposit in the
Borrower Loan Account; and (b) remains in the Borrower Loan Account.
Borrower Loan Deposits shall mean all funds on deposit in the Borrower Loan Account (including Borrower
Loan Account Interest).
Collateral shall mean Assignor's interest in: (a) the Installment Contract; (b) the Contract Payments; (c) the
Borrower Loan Account; (d) the Borrower Loan Deposits; (e) the Lock Box Account; (f) the Lock Box Deposits;
(g) the Equipment; and (h) the Proceeds. If there is a Mortgage, delete Equipment from this definition.
If there is a Mortgage and Improvements instead of (or in addition to) Equipment, then there would
be a construction contract Construction Contract shall mean the "Construction Contract" defined in the
Installment Contract, which shall be executed by Assignor and the entity that will act as the general contractor
or construction manager in connection with the completion of the Improvements.
Contract Payments shall mean all payments to be made by CRC pursuant to the Installment Contract.
Debt Service shall mean regular (non - default) quarterly payments of interest and /or principal due and payable
by Assignor to Assignee pursuant to the Note.
Equipment shall mean an estimated $ of equipment to be acquired by Assignor pursuant to the
Installment Contract. The Equipment is the "Equipment" under the Installment Contract.
If there is a Mortgage, then, instead of Equipment, there would be a definition of this
sort:
Improvements shall mean an estimated $ of improvements to be completed by
Assignor pursuant to the Installment Contract and the Construction Contract.
Event of Default shall have the meaning set forth in Section 10.
Future Advances shall mean advances that may be made by Assignee in accordance with the terms and
conditions of the Loan Documents and the Tri -Party Agreement for purposes other than financing payment
of: (a) the actual, out -of- pocket costs incurred by Assignor to acquire the Equipment in accordance with the
terms and conditions of the Installment Contract; or (b) Lender Fees.
Indebtedness shall have the meaning set forth in Section 3.
Installment Contract shall mean that certain Equipment Installment Purchase Contract executed by and
between Assignor and CRC and dated , 2009, a copy of which is attached hereto as
Exhibit A.
Installment Payments shall have the meaning set forth in the Installment Contract.
Laws shall mean all applicable laws, statutes, and /or ordinances, and any applicable governmental rules,
regulations, guidelines, orders, and /or decrees.
Lender Fees shall mean regular (non - default) lender fees, costs, and expenses due and payable by Assignor
to Assignee pursuant to the Loan Documents, including, without limitation, costs and expenses: (a) to close
the Loan; and (b) that, under the terms and conditions of this Agreement, expressly constitute Lender Fees.
Loan shall mean a loan from Assignee to Assignor made in accordance with the terms and conditions of the
Loan Documents, which loan shall be in the original principal amount of $
Loan Agreement shall mean that certain Loan Agreement (Equipment) of even date herewith executed by
and between Assignor and Assignee.
Loan Documents shall mean the documents evidencing and /or securing the Loan, including, specifically, the
Note and the Loan Agreement. If applicable, include the Mortgage
Lock Box Account shall mean an interest - bearing, FDIC insured account with Assignee that: (a) is owned
jointly by Assignor and Assignee; (b) provides that, notwithstanding the joint ownership, Assignee exclusively
has the right to withdraw funds therefrom; and (c) specifically is dedicated to: (i) the receipt of Installment
Payments and Lender Fees; and (ii) the payment of Debt Service and Lender Fees.
Lock Box Deposits shall mean all funds on deposit in the Lock Box Account (including accrued Account
Interest).
Losses shall mean any liability, loss, damage, cost, or expense (including, without limitation, reasonable
attorneys' fees).
Master Loan Program Agreement shall mean that certain Master Loan Program Agreement by and between
CRC and Assignee dated , 2009.
If there is a Mortgage Mortgage shall mean that certain Real Estate Mortgage, Security Agreement,
Assignment, and Fixture Filing of even date herewith executed by Assignor in favor of Assignee.
Note shall mean that certain Promissory Note (Equipment) of even date herewith executed by Assignor in
favor of Assignee and evidencing the Loan.
Proceeds shall mean all additions, substitutions, replacements, extensions, renewals, and proceeds to or of
any of the Installment Contract, the Contract Payments, the Borrower Loan Account, the Borrower Loan
Deposits, the Lock Box Account, the Lock Box Deposits, and /or the Equipment. If there is a Mortgage,
delete Equipment from this definition.
Projection Notice shall have the meaning set forth in the Installment Contract.
Tri -Party Agreement shall mean that certain Tri -Party Agreement (Equipment) of even date herewith
executed by and among Assignor, Assignee, and CRC.
UCC shall mean the Indiana Uniform Commercial Code, as incorporated in the Indiana Code.
2. Assignment. For good and valuable consideration, the receipt and sufficiency of which are
acknowledged hereby, Assignor hereby: (a) assigns the Collateral to Assignee; and (b) grants to Assignee
a security interest in the Collateral.
3. Indebtedness. This Agreement is given to secure the following (collectively, the "Indebtedness "):
(a) performance by Assignor of the terms and conditions of this Agreement, together
with payment of all: (i) amounts payable to Assignee under this Agreement; and
(ii) reasonable costs, expenses, and attorneys' fees incurred by Assignee in: (A) the
enforcement of this Agreement; or (B) the collection of any amounts payable to Assignee
under this Agreement; whether the foregoing are direct, indirect, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several;
(b) All obligations, liabilities, and indebtedness of Assignor to Assignee now existing or
hereafter arising under, or in connection with, the Loan Documents, together with all: (i) Debt
Service and Lender Fees; (ii) other amounts payable to Assignee under any of the Loan
Documents; and (iii) reasonable costs, expenses, and attorneys' fees incurred by Assignee
in: (A) the enforcement the Loan Documents; or (B) the collection of any amounts payable
to Assignee under the Loan Documents; whether such obligations, liabilities, and
indebtedness are direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several, or
joint and several;
(c) All obligations and liabilities of Assignor and /or CRC now existing or hereafter arising
under, or in connection with, the Tri -Party Agreement, together with all: (i) amounts payable
under the Tri -Party Agreement; and (ii) reasonable costs, expenses, and attorneys' fees
incurred by Assignee in: (A) the enforcement of the Tri -Party Agreement; or (B) the collection
of any amounts payable to Assignee under the Tri -Party Agreement; whether such
obligations and liabilities are direct, indirect, fixed, contingent, liquidated, unliquidated, joint,
several, or joint and several; and
(d) Any and all modifications, amendments, supplements, restatements, replacements,
renewals, or extensions of one or more of this Agreement, the Loan Documents, or the
Tri -Party Agreement.
Assignor hereby acknowledges and agrees that: (a) the Indebtedness includes, and this Agreement is given
to secure, the Future Advances; and (b) this Agreement shall secure all Future Advances.
4. Security Agreement. This Agreement is intended to be a security agreement pursuant to the UCC
with respect to the Collateral for the purpose of securing all Indebtedness. Assignor agrees to execute and
deliver financing and continuation statements (or acknowledgments and /or receipts thereof) covering the
Collateral from time to time and in such form as Assignee may require to perfect, and continue the perfection
of, Assignee's security interest with respect to the Collateral. Assignor shall pay (and Lender Fees shall
include) all costs and expenses of: (a) filing such statements, and any continuations or releases thereof; and
(b) any record searches for financing statements that Assignee may require. If there is a default under this
Agreement, then, with respect to all and every part of the Collateral, Assignee shall have the rights and
remedies: (a) of a secured party under the UCC; (b) available at law or in equity; and (c) provided in this
Agreement.
5. Lock Box Account.
(a) Creation. Contemporaneously with the execution of this Agreement, and in
connection with the execution of the Loan Documents, Assignee, using its standard account
documents, shall establish the Lock Box Account. Assignee shall maintain the existence of
the Lock Box Account until such time as the Loan has been paid in full. In connection with
the foregoing, the parties shall execute such documents as are necessary to: (i) establish the
Lock Box Account; (ii) maintain the existence of the Lock Box Account; and /or (iii) comply
with legal requirements applicable to the Lock Box Account and /or the Lock Box Deposits
(including, without limitation, any that may be required in connection with the withdrawal by
Assignee of Lock Box Deposits from the Lock Box Account to pay Debt Service and Lender
Fees).
(b) Payments. Notwithstanding anything to the contrary set forth in: (i) the Installment
Contract, CRC shall pay all Installment Payments directly into the Lock Box Account; and
(ii) the Loan Documents, CRC or Assignor shall pay any other amounts due to Assignee
pursuant to the Loan Documents into the Lock Box Account.
(c) Interest. Notwithstanding the provisions in the Installment Contract with respect to
the determination of the amount of the Installment Payments, the amount set forth in each
Projection Notice for the Administrative Payment due for the quarter with respect to which
such Projection Notice applies (and, accordingly, the amount of the Installment Payment due
and payable by CRC pursuant to the Installment Contract) shall be reduced by the amount
of any Account Interest in the Lock Box Account on the date that CRC pays the Installment
Payment.
(d) Withdrawals. On a quarterly basis, and at such time as amounts are owed to
Assignee pursuant to the Loan Documents, Assignee shall withdraw from the Lock Box
Account the amount to which it is entitled pursuant to the Loan Documents. If and to the
extent that amounts remain in the Lock Box Account after such withdrawal, Assignee shall
withdraw from the Lock Box Account, and disburse to Assignor, the amount of the
Administrative Payment to which Assignor is entitled pursuant to the Installment Contract;
provided that, if the funds in the Lock Box Account are less than the amount of the
Administrative Payment to which Assignor is entitled, then: (i) Assignee shall have no
responsibility for funding the amount of the shortfall; and (ii) any such shortfall shall be
addressed by and between CRC and Assignor. If, at the time that the Loan is paid in full,
there remain any excess Lock Box Deposits, then Assignee shall re- deposit the remaining
Lock Box Deposits into the Loan Program Account (as defined in the Master Loan Program
Agreement) in accordance with the Loan Agreement.
6. Borrower Loan Account Interest. On a quarterly basis, Assignee shall: (a) withdraw from the
Borrower Loan Account all Borrower Loan Account Interest; and (b) apply the amount of the withdrawn
Borrower Loan Account Interest against the interest that has accrued on the Loan. Notwithstanding the
provisions in the Installment Contract with respect to the determination of the amount of the Installment
Payments, the amount set forth in a Projection Notice (and, accordingly, the amount of the Installment
Payment due and payable by CRC pursuant to the Installment Contract) shall be reduced by the amount of
the Borrower Loan Account Interest withdrawn by Assignee in the quarter with respect to which such
Projection Notice pertains.
7. Warranties. Assignor represents and warrants to Assignee that: (a) Assignor: (i) is the sole owner
of the Collateral; and (ii) has not sold, transferred, assigned, or conveyed all or any part of the Collateral;
(b) the Collateral is free and clear of all liens, pledges, security interests, and encumbrances of any nature;
(c) Assignor has full right and power to enter into and take the actions contemplated by this Agreement; (d) all
necessary action has been taken to effect: (i) the assignment of the Collateral to Assignee; and (ii) the grant
to Assignee of a security interest in the Collateral; (e) this Agreement is effective to assign the Collateral to
Assignee, and grant to Assignee a security interest in the Collateral, without contravention of the terms and
conditions of the Installment Contract, the Loan Documents, or the Tri -Party Agreement; and (f) there are no
outstanding subscriptions, options, warrants, commitments, or agreements with respect to the Collateral,
except for agreements to which Assignor and Assignee are parties.
8. Performance.
(a) Payment. Assignee shall be paid all of the Indebtedness when due: (i) without relief
from valuation and appraisement laws; and (ii) with reasonable attorneys' fees and costs of
collection. Assignor waives demand, presentment for payment, notice of protest, and notice
of nonpayment or dishonor of the Note and /or the other Indebtedness.
(b) Performance. Assignor shall perform as and when due all of its obligations under
the Loan Documents, the Tri -Party Agreement, and the Installment Contract, and CRC shall
perform as and when due all of its obligations under the Tri -Party Agreement and the
Installment Contract.
(c) Ownership. Assignor shall: (i) remain the sole owner of the Collateral; accordingly,
Assignor shall not sell, transfer, convey, or assign all or any part of the Collateral or any
interest therein; (ii) keep the Collateral free and clear of all liens, pledges, security interests,
and encumbrances of any nature; (iii) not issue, grant, or agree to any subscriptions, options,
warrants, commitments, or agreements with respect to the Collateral; and (iv) take all
necessary action to keep this Agreement, the Installment Contract, the Loan Documents, the
Tri -Party Agreement, and the security interest in the Collateral in full force and effect.
9. Preservation. If: (a) Assignor fails to: (i) make any payment under the Loan Documents, the Tri -Party
Agreement, or the Installment Contract when due; or (ii) timely observe or perform any obligation to be
observed or performed by it pursuant to the Loan Documents, the Tri -Party Agreement, or the Installment
Contract; or (b) CRC fails to: (i) make any payment under the Tri -Party Agreement or the Installment Contract
when due; or (ii) timely observe or perform any obligation to be observed or performed by it pursuant to the
Tri -Party Agreement or the Installment Contract; then: (a) Assignee, at its option, but without: (i) any duty or
obligation to do so; or (ii) any waiver or release of any default by Assignor or CRC; may make any such
payment or observe or perform any such obligation as necessary or appropriate to protect or defend the
Collateral, the security intended to be given by this Agreement, the security interest of Assignee in the
Collateral, and /or the priority of such security interest in the Collateral; and (b) all reasonable costs and
expenses incurred by Assignee in connection with making any such payment or observing or performing any
such obligation (including, without limitation, reasonable attorneys' fees) shall constitute Lender Fees and be
a part of the Indebtedness secured by this Agreement.
10. Events of Default. It shall be an "Event of Default" under this Agreement if:
(a) Assignor or CRC fails to pay any amount due hereunder on the date due; provided
that, in the case of the first two such failures in any 12 month period, it shall not be an Event
of Default unless the failure continues for a period of five days after the date on which the
payment is due;
(b) Assignor or CRC fails to observe or perform any other obligation to be observed or
performed by it hereunder, and such failure continues for a period of 30 days after Assignee
delivers written notice of such failure to Assignor or CRC, respectively; provided that, if such
failure is of a nature that it reasonably cannot be cured within 30 days, then such failure shall
not constitute an Event of Default so long as Assignor or CRC: (i) commences a cure of such
failure within 15 days after receipt of the notice from Assignee; and (ii) diligently pursues such
cure to completion within 60 days after receipt of such notice;
(c) there is an "Event of Default" by Assignor under the Installment Contract, the Loan
Documents, and /or the Tri -Party Agreement; provided that: (i) if the term "Event of Default"
is not used in any of the foregoing documents, then it shall be an Event of Default under this
Agreement if there is a default under such document that continues beyond any applicable
cure periods; and (ii) notwithstanding the foregoing, undeclared Events of Default under the
Installment Contract shall not be Events of Default hereunder;
(d) there is any representation or warranty made by Assignor in this Agreement, the
Installment Contract, the Loan Documents, or the Tri -Party Agreement that is false in any
material respect at the time made or deemed to be made;
(e). there is a breach of Subsection 8(c) of this Agreement;
(f) there is a change in the control of Assignor such that Assignor no longer is controlled
by, or under common control with,
(g) there is a change in any Law that: (i) causes the transactions contemplated by the
Installment Contract, the Loan Documents, and /or the Tri -Party Agreement to be unlawful;
or (ii) subjects Assignee to material adverse financial consequences;
(h) there is a liquidation, sale, conveyance, transfer, encumbrance, pledge, or
assignment of substantial assets of Assignor out of the ordinary course of business;
(1) Assignor: (i) institutes or consents to any proceedings: (A) in insolvency or
bankruptcy; (B) for the adjustment, liquidation, extension or composition, or arrangement of
debts; or (C) for any other relief; under any Law with respect to the relief or reorganization
of debtors; (ii) is adjudicated a bankrupt, files an answer admitting bankruptcy or insolvency,
or in any manner is adjudged insolvent; (iii) makes an assignment for the benefit of creditors;
or (iv) admits in writing an inability to pay debts as they become due;
(j) there is any proceeding: (i) in insolvency or bankruptcy; (ii) for the adjustment,
liquidation, extension or composition, or arrangement of debts; or (iii) for any other relief;
under any Law with respect to the relief or reorganization of debtors that is instituted against
Assignor, and such proceeding is not discharged or dismissed within 45 days;
(k) any portion of the Collateral, or any substantial portion of the other property or assets
of Assignor, is placed in the hands of any receiver, trustee, or other officer or representative
of any court, or Assignor consents, agrees, or acquiesces to the appointment of any such
receiver, trustee, or other officer or representative;
(I) Assignor's interest in the Collateral, or any material portion thereof, becomes the
subject matter of litigation that will result in substantial impairment or loss of the security
intended to be provided by this Agreement, as reasonably determined by Assignee;
(m) any lienholder or creditor shall initiate an action to enforce or foreclose a lien, pledge,
security interest, or encumbrance on, in, or of all or any portion of the Collateral, whether
such lien, pledge, security interest, or encumbrance is superior, equal, or junior to the
security interest of Assignee in the Collateral; and /or
(n) there is the making or filing of any levy or execution on, or any seizure, attachment,
or garnishment of, any portion of the Collateral.
11. Remedies. If there is an Event of Default, then, at any time thereafter:
(a) at the option of Assignee: (i) all principal of, and interest on, the Indebtedness; and
(ii) any amount owed to Assignee hereunder or under the Loan Documents or the Tri -Party
Agreement; immediately shall become due and payable, without any notice, presentment for
payment, demand, notice of demand and dishonor, or protest and notice of protest and
nonpayment, all of which expressly are waived by Assignor;
(b) Assignee immediately shall have the right to: (i) enforce in whole or in part every
security interest granted by this Agreement; (ii) institute any proceeding that Assignee may
deem to be necessary or appropriate for the protection of its interests (including, without
limitation, a proceeding for injunction or for specific performance with respect to the terms
and conditions of this Agreement, the Installment Contract, the Loan Documents, and /or the
Tri -Party Agreement); (iii) cure the Event of Default for the account of Assignor; and
(iv) exercise any other right or remedy granted: (A) under any of this Agreement, the
Installment Contract, the Loan Documents, and /or the Tri -Party Agreement; or (B) at law or
in equity; and
(c) all reasonable costs and expenses incurred by Assignee in exercising or enforcing
any of its rights or remedies hereunder shall constitute Indebtedness secured by this
Agreement.
Each and every right and remedy conferred upon, or reserved to, Assignee in this Agreement, the Installment
Contract, the Loan Documents, and /or the Tri -Party Agreement: (a) is cumulative, and is not intended to be
exclusive of any other right or remedy, although Assignee, at its option, may elect to exercise its rights and
remedies under: (i) this Agreement exclusive of its rights and remedies under any of the Installment Contract,
the Loan Documents, and /or the Tri -Party Agreement; or (ii) any of the Installment Contract, the Loan
Documents, and /or the Tri -Party Agreement exclusive of its rights and remedies under this Agreement; and
(b) shall be in addition to every other right and remedy given hereunder or now or hereafter existing at law or
in equity. No delay or omission by Assignee in the exercise of any right or remedy shall constitute, or be
construed to be, a waiver of, or an acquiescence in, any Event of Default, and every right and remedy given
to Assignee may be exercised from time to time, as often, and in such order as may be deemed to be
expedient by Assignee. No waiver by Assignee of any Event of Default shall constitute a waiver of, or consent
to, any subsequent Event of Default.
12. Receiver. Immediately upon the commencement of any proceeding by Assignee to obtain judgment
for any part of the Indebtedness, or to aid in the enforcement of this Agreement, the Installment Contract, the
Loan Documents, or the Tri -Party Agreement: (a) Assignor shall: (i) waive the issuance and service of
process, and enter its voluntary appearance in such proceeding; (ii) agree and consent to the appointment
of a receiver or receivers of the Collateral; and (iii) execute, at the request of Assignee, a written consent or
agreed order to be filed for the purpose of obtaining the appointment of a receiver; and (b) Assignee shall be
entitled to the appointment of a receiver of the Collateral, without: (i) any such waiver, entry, agreement,
consent, or order, or any further notice; (ii) regard to the adequacy or inadequacy of any security for the
Indebtedness; and /or (iii) the requirement of any bond.
13. Waivers. To the extent lawful: (a) at no time shall Assignor insist upon, plead, or in any other manner
whatsoever claim or take any benefit or advantage of: (i) any valuation or appraisement law; or (ii) any
exemption from execution or sale of the Collateral; and (b) Assignor expressly waives all right to have the
Collateral marshaled upon any enforcement of this Agreement. Assignee shall be entitled to recover judgment
for any part of the Indebtedness before, after, or during the pendency of any proceeding for the enforcement
of this Agreement, and the right of Assignee to recover such judgment shall not be affected by: (a) the
enforcement of the security interest in the Collateral or any entry or sale hereunder; or (b) the exercise of any
other right or remedy for the enforcement of this Agreement. Upon any sale made under or by virtue of this
Agreement, Assignee may bid for and acquire all or any part of the Collateral, and, in lieu of paying cash
therefor, may make settlement of the purchase price by crediting the net sales price against the Indebtedness.
14. Claim Defense. Assignor promptly shall: (a) notify Assignee in writing of the commencement, or
threat of commencement, of any proceeding affecting the interest of Assignor or Assignee in all or any part
of the Collateral; and (b) take such action, employing attorneys satisfactory to Assignee, as may be necessary
to preserve, protect, and defend the interests of Assignor and Assignee affected by such proceeding.
Assignor shall take such action in connection therewith as Assignee reasonably may require. Any and all
Losses that may be incurred by Assignee in connection with any proceeding to which Assignee is made a
party on account of this Agreement shall constitute Lender Fees and be a part of the Indebtedness secured
by this Agreement. If Assignee pays, discharges, or satisfies, in whole or in part, any prior lien or
encumbrance upon all or any part of the Collateral, then Assignee shall be subrogated to the rights of the
holder of such lien as fully as if such lien had been assigned to Assignee.
15. 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 Assignee at 12821 East New Market Street, Suite 301,
Carmel, Indiana 46032, Facsimile: 317- , Attention: ; to Assignor at
, Facsimile: , Attn: • and to
CRC at City of Carmel, Indiana, One Civic Square, 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 1500,
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.
16. Authority. Each undersigned person executing this Agreement on behalf of Assignor, Assignee, and
CRC represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary
action of Assignor, Assignee, 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 Assignor, Assignee, and CRC, respectively.
17. Severability. If any one or more of the terms or conditions of this Agreement is determined to be
invalid, then: (a) such invalidity, at the option of Assignee, 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.
18. 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.
19. Successors. The terms and conditions of this Agreement shall: (a) run with the Collateral; and (b) be
binding upon, and inure to the benefit of: (i) Assignor and its administrators, successors and assigns, and all
parties claiming under or through Assignor; and (ii) Assignee and its successors and assigns. The term:
(a) "Assignor" shall include all administrators, successors, and assigns of ; and
(b) "Assignee" shall include the successors and assigns of Mercantile Bank. All parties who purport to have
acquired any interest in the Collateral shall be deemed to have notice of, and shall be bound by, the terms of
the this Agreement, the Installment Contract, the Loan Documents, and the Tri -Party Agreement.
20. Miscellaneous. Any and all terms and /or conditions of this Agreement from time to time may be
waived by Assignee to such extent, and in such a manner, as Assignee desires, by an instrument in writing
signed by Assignee; provided that no such waiver shall affect or impair the rights of Assignee hereunder,
except to the extent specifically stated in such written instrument. 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 in this Agreement are
attached hereto and incorporated herein by reference.
IN WITNESS WHEREOF, Assignor has executed this Collateral Assignment, Lock Box, and
Security Agreement (Equipment) as of the date set forth above.
STATE OF INDIANA
COUNTY OF
SS:
By:
Printed:
Title:
Before me, a Notary Public in and for the State of Indiana, personally appeared
, the of , who
executed the foregoing Collateral Assignment, Lock Box, and Security Agreement (Equipment) for and on
behalf of such entity.
Witness my hand and Notarial Seal this day of , 2009.
By:
Notary Public
Printed Name:
I am a resident of: County,
My commission expires:
IN WITNESS WHEREOF, Assignee has executed this Collateral Assignment, Lock Box, and
Security Agreement (Equipment) as of the date set forth above.
STATE OF INDIANA
COUNTY OF
SS:
MERCANTILE BANK
By:
Printed:
Title:
Before me, a Notary Public in and for the State of Indiana, personally appeared
, the of Mercantile Bank, who executed the foregoing
Collateral Assignment, Lock Box, and Security Agreement (Equipment) for and on behalf of such entity.
Witness my hand and Notarial Seal this day of , 2009.
By:
Notary Public
Printed Name:
I am a resident of: County,
My commission expires:
IN WITNESS WHEREOF, CRC has executed this Collateral Assignment, Lock Box, and
Security Agreement (Equipment) as of the date set forth above.
STATE OF INDIANA
COUNTY OF
SS:
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
Ronald E. Carter, President
Before me, a Notary Public in and for the State of Indiana, personally appeared
Ronald E. Carter, the President of The City of Carmel Redevelopment Commission, who executed the
foregoing Collateral Assignment, Lock Box, and Security Agreement (Equipment) for and on behalf of such
entity.
Witness my hand and Notarial Seal this day of , 2009.
By:
Notary Public
Printed Name:
I am a resident of: County,
My commission expires:
Return following recording to:
This instrument was prepared by Jennifer R. Shoup, Attorney -At -Law, Wallack Somers & Haas, One Indiana
Square, Suite 1500, Indianapolis, Indiana 46204. I affirm, under the penalties for perjury, that I have taken
reasonable care to redact each Social Security number in this document, unless required by law.
Jennifer R. Shoup, Attorney -At -Law.
INDEX TO EXHIBITS
EXHIBIT A Copy of Installment Contract
D
E9
e
Exhibit e
Terms and conditions of Fixed Rate Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master Loan Program
Agreement. Accordingly, all capitalized terms used but not defined in this Exhioit shall have the meanings
ascribed to such terms in the Master Loan Prog•am Agreemen:. For purposes of this Exhibit, Village
Financial, LLC constitutes a Qua ified Developer, and the Loan constitutes a Developer
Loan.
Notwithstanding anything in the Agreement or any Developer Loan Documents to the contrary, CRC may not
late- than two business days prior to each Aavance Date, elect a fixed rate for a period not to exceed five (5)
years at a rate quoted by the Lender at such time and based on their applicable five year SWAP equivalent.
In the event the CRC selects a fixed rate, any Developer loan funded with an Advance for wh ch the fixed rate
option has been e ected snail be subject to prepayment fees as set forth below:
If prepaid prior to the last day of the calendar month in which the first anniver_say of the
Advance Dg-fe occurs' 3% of the amount of the prepayment
If prepaid during the period: (a) commencing on the first day of the first full calendar month
following the first anniversary of the Advance Date; and (b) ending on the date that is one
year thereafter 2% of the amount of the prepayment
If prepaid during the period: (a) commencing on the first day of the first full calendar maath
following the second anniversary of the Advance Date; and (b) ending on the date that is one
year thereafte': 1%.,. of the amount of the prepayment
If prepaid thereafter, no prepayment fee shall apply.
Exhibit
Terms and conditions of Extension Option
The terms and condtions of this Exhibit match those in the corresponding Exhibit to the Master Loan Program
Agreement. Accordingly; all capitalized terms used but not defined in this Exhibit shall have the meanings
ascribed to such terms in the Master Loan Program Agreement. For purposes of this Exhibit, Village
Financial, LLC constitutes a Qualified Developer, and the Loan constitutes a Developer
Loan.
No: later than one hundred efghty (180) days prior to the end of tie term of any Developer Loan, the Qualified
Developer and the CRC may request an extension of the term of such Developer Loan. The Leader shall
review and consider such request for an extension in accordance with the Lender's then - applicable
underwriting standards and will notify the respective Qual!fied Developer and the CRC whether such extension
shall, in the sole discretion of the Lender, be granted not later than ninety (90) days prior to the end of the
current term of the Developer Loan. In the event the Lender does not so notify the Qualified Developer and
the CRC, the request for an extension shall be deemed denied
O
m
EXHIBIT G
FORM
BILL OF SALE
Village Fir :encing, LLC, an Indiana corporation (the "Seller "). hereby Goes bargain, sell,
convey, and grant to The City of Carme? Redevelopment Commission (the "Purchaser "), for the sum of $1.00
and other good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby,
all of its right, title, and interest in and to that certain equipment identified in Exhibit A, attaches hereto and
incorporated ;herein by reference (the "Equipment "), to have and hold in fee simple forever
Seller represents and warrants to Purchaser that: (a) Seller has good and merchantable title
to the Equipment, and has the right to convey the Equipment; (b) the Equipment is sold to Purchaser free and
clear of a I liens, security interests, and encumbrances, (c) Seller shall warrant and defend title to the
Equipment against any and all claims cf any kind or nature asserted by any persons or entities, and (d) Seller
shall deliver possession of the Equipment to Purchaser on the date nereof.
The undersigned person execut ng this Bill of Sale on behalf of Seller certifies that (a) he or
she is authorized to execute ant deliver this Bill of Sale for and on behalf of Seller; (b) Seller has full capacity,
power, and authority to enter into and carry out its obLgations under this Bill of Sale; ant (c) this Bill of Sale
has been authorized by a'I necessary action of Seller.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale on this day of
O
VILLAGE FINANCING, LLC
By
Printed
Title.
e
STATE OF INDIANA
COUNTY OF
}
SS:
ACKNOWLEDGMENT
Before me, a Notary Public in and for the State of Indiana, personally appeared
, the of Vil'.age Financing, LLC, who acknowledged
the execution of the foregoing Bili of Sale on behalf of such entity.
WITNESS my hand and Notarial Seal his _ day of
Signature:
Printed:
I am a resident of County, Indiana.
My commission expires
Notary Public
This instrument was prepared by Jennifer R. Shoup, Attorney -At -Law Wallack Somers & Haas, One Inciana
Square, Suite 1500, Indianapolis, Indiana 46204.
-2-
1 : \COOuments \Shoup, Jenny \Cloy of Carmel \Mercantile Lcan -MLFA and Forms \Form Bill of Sale Lo go on ICS.,od
EXHIBIT H
FORM
TRI -PARTY AGREEMENT
Equipment
This Tri -Party Agreement (Equipment) (the "Agreement ") is executed as of the day of
, 2009, by and among Mercantile Bank, having its principal office at 12821 East New
Market Street, Suite 301, Carmel, Indiana 46032 (the "Lender "),
having its principal office at (the "Borrower ") and The City of Carmel
Redevelopment Commission, having its principal office at City of Carmel, Indiana, One Civic Square, Carmel,
Indiana 46032 ( "CRC ").
1. Definitions.
Acceleration Exercise Notice shall mean a written notice pursuant to which Lender notifies CRC that Lender
is exercising the Acceleration Option.
Acceleration Option shall mean the option (but not the obligation) of Lender to accelerate the Contract
Payments; provided that, the amount that CRC shall be obligated to pay in connection with such an
acceleration shall be the Base Acceleration Payment, except as provided to the contrary in Subsection 4(c).
Acceleration Payment shall mean the Base Acceleration Payment or the Adjusted Acceleration Payment,
as applicable.
Accrued Interest shall mean the Base Rate Accrued Interest or the Adjusted Rate Accrued Interest, as
applicable.
Adjusted Acceleration Payment shall mean the sum of: (a) the Adjusted Rate Accrued Interest; and (b) the
Adjusted Outstanding Principal Balance; provided that, for purposes of this definition, all references to "Loan
Purchase Date" in the definitions of Adjusted Rate Accrued Interest and Adjusted Outstanding Principal
Balance shall be deemed to be references to the Equipment Closing Date.
Adjusted Outstanding Principal Balance shall mean the amount, on the Loan Purchase Date, of the
principal balance of advances of proceeds of the Loan through the Loan Purchase Date that: (a) have been
made to pay Aggregate Equipment Costs; and (b) remain outstanding; which amount shall include all Lender
Fees (including all Lender Fees that are owed by Borrower as a result of a Loan Default); provided that the
Adjusted Outstanding Principal Balance shall be reduced by any Prepayments that have been remitted to
Lender, even if Lender has not yet applied any such Prepayments as required pursuant to Section 8. In no
event shall the Adjusted Outstanding Principal Balance exceed $ , 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.
Aggregate Equipment Costs shall mean the sum of the Equipment Costs and the Lender Fees.
Base Acceleration Payment shall mean the sum of: (a) the Base Rate Accrued Interest; and (b) the Base
Outstanding Principal Balance; provided that, for purposes of this definition, all references to "Loan Purchase
Date" in the definitions of Base Rate Accrued Interest and Base Outstanding Principal Balance shall be
deemed to be references to the Equipment Closing Date. The Base Acceleration Payment corresponds to
the "Full Prepayment Price" under the Installment Contract.
Base Outstanding Principal Balance shall mean the amount, on the Loan Purchase Date, of the principal
balance of advances of proceeds of the Loan through the Loan Purchase Date that: (a) have been made to
pay Aggregate Equipment Costs; and (b) remain outstanding; which amount shall include 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.
The Base Outstanding Principal Balance shall be reduced by any Prepayments that have been remitted to
Lender, even if Lender has not yet applied any such Prepayments as required pursuant to Section 8. In no
event shall the Base Outstanding Principal Balance exceed $ , 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 Contract Default shall mean any "Event of Default" by Borrower under the Installment Contract,
regardless of whether such Event of Default results in a Loan Default.
Borrower Loan Default shall mean a Loan Default caused by: (a) the failure by Borrower to observe or
perform any obligation under the Loan Documents; or (b) any "Event of Default" by Borrower under the
Installment Contract.
Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security Agreement
(Equipment) of even date herewith executed by and among Borrower, Lender, and CRC.
If there is a Mortgage and Improvements instead of (or in addition to) Equipment, then there would
be a construction contract Construction Contract shall mean the "Construction Contract" defined in the
Installment Contract, which shall be executed by Borrower and the entity that will act as the general contractor
or construction manager in connection with the completion of the Improvements.
Contract Default Notice shall mean a copy of any notice of default delivered to Borrower pursuant to the
Installment Contract.
Contract Payments shall mean all payments to be made by CRC pursuant to the Installment Contract.
CRC Monetary Default shall mean an "Event of Default" by CRC under the Installment Contract that results
from the failure of CRC to make any payment when due thereunder, which "Event of Default" causes a Loan
Default.
CRC Non - Monetary Default shall mean an "Event of Default" by CRC under the Installment Contract or the
Master Loan Program Agreement that results from the failure of CRC to observe or perform any obligation
to be observed or performed by it thereunder (other than the failure to make any payment when due), which
"Event of Default ", in the case of an "Event of Default" under the Installment Contract, causes 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.
Default Rate shall have the meaning set forth in the Loan Agreement.
Equipment shall mean an estimated $ of equipment to be acquired by Borrower pursuant to the
Installment Contract. The Equipment is the "Equipment" under the Installment Contract.
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If there is a Mortgage, then, instead of Equipment, there would be a definition of this
sort:
Improvements shall mean an estimated $ of improvements to be completed by
Borrower pursuant to the Installment Contract and the Construction Contract.
Equipment Closing shall mean the closing with respect to the transfer of the Equipment.
Equipment Closing Date shall mean the date on which the Equipment Closing occurs.
Equipment Costs shall mean the actual, out -of- pocket costs incurred by Borrower to acquire the Equipment
in accordance with the terms and conditions of the Installment Contract.
Full Prepayment shall mean payment in full by CRC of the "Full Prepayment Price" under the Installment
Contract as a result of the exercise by CRC of the "Full Prepayment Option" (as defined in the Installment
Contract).
Installment Contract shall mean that certain Equipment Installment Purchase Contract executed by and
between Borrower and CRC and dated , 2009, a copy of which is attached hereto as
Exhibit A.
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 Cure Period shall mean the period that commences upon the default by Borrower under the
Installment Contract and expires on the date that is 45 days after the later of: (a) the expiration of the
applicable cure period under the Installment Contract; or (b) receipt by Lender of the Contract Default Notice.
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 Collateral Assignment, expressly constitute Lender Fees.
Loan shall mean a loan from Lender to Borrower made to finance the payment of Aggregate Equipment
Costs, which loan shall be in the original principal amount of $
Loan Agreement shall mean that certain Loan Agreement ( Equipment) of even date herewith executed by
and between Lender and Borrower.
Loan Default shall mean an "Event of Default" under any of the Loan Documents or the Master Loan Program
Agreement; provided that, if "Event of Default" is not a defined term in any Loan Document, then, with respect
to such Loan Document, there shall be a Loan Default if Borrower is in default thereunder beyond any
applicable notice or cure periods.
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
Loan Agreement, the Note, and the Collateral Assignment. If applicable, include the Mortgage
Loan Interests shall mean: (a) the Loan; (b) the Loan Documents; (c) the collateral assignments and security
interests granted in the Collateral Assignment (including the collateral assignment of, and security interest in,
the Installment Contract); 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; (iii) enforce the Installment
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Contract in accordance with the terms and conditions of the Collateral Assignment; and (iv) exercise all rights
and remedies afforded by the Laws to secured lenders with respect to security interests in assigned
installment contracts.
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.
Master Loan Program Agreement shall mean that certain Master Loan Program Agreement executed by
and between CRC and Lender, dated , 2009.
Maturity Date shall mean the date on which the Outstanding Principal Balance is scheduled to become due
in full pursuant to the Note, as such date may be extended pursuant to the terms and conditions of the Loan
Agreement and /or the Note.
If there is a Mortgage Mortgage shall mean that certain Real Estate Mortgage, Security Agreement.
Assignment, and Fixture Filing of even date herewith executed by Borrower in favor of Lender.
Note shall mean that certain Promissory Note of even date herewith executed by Borrower in favor of Lender
and evidencing the Loan.
Outside Closing Date shall mean, with respect to the Loan Interests Closing, the date that is: (a) in the case
of the exercise by CRC of the Purchase Option, 30 days after CRC delivers the Purchase Exercise Notice;
or (b) in the case of the exercise by Lender of the Put Option, 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.
Partial Prepayment shall mean payment by CRC of a "Partial Prepayment" under the Installment Contract.
Prepayment shall mean a Partial Prepayment or the Full Prepayment, as applicable.
Purchase Exercise Notice shall mean a written notice pursuant to which CRC notifies Lender that CRC is
exercising the Purchase Option.
Purchase Option shall mean the option (but not the obligation) of CRC to require Lender to convey the Loan
Interests to CRC for: (a) the Base Purchase Price, in the case of a Borrower Loan Default or a Borrower
Contract Default, except to the extent that Subsection 3(d) is applicable; or (b) the Adjusted Purchase Price,
in the case of a CRC Monetary Default or a CRC Non - Monetary Default.
Put Exercise Notice shall mean a written notice pursuant to which Lender notifies CRC that Lender is
exercising the Put Option.
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 3(d) is applicable.
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If there is a Mortgage, then will need to add a definition for Site.
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 6. Notwithstanding the foregoing, if
either: (a) CRC has exercised the Purchase Option; or (b) 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. Purchase.
(a) General.
(i) If there is a Borrower Contract Default or a Loan Default, regardless
of whether such Loan Default results from a CRC Monetary Default, a CRC
Non - Monetary Default, or a Borrower Loan Default, then the Purchase
Option shall apply. As provided in the definition of Purchase Option, in the
case of: (A) a Borrower Loan Default or a Borrower Contract Default, the
Base Purchase Price shall apply, except in the event that Subsection 3(d)
is applicable; and (B) a CRC Monetary Default, a CRC Non - Monetary
Default, or Subsection 3(d) being applicable; the Adjusted Purchase Price
shall apply.
(ii) if there is a Loan Default, regardless of whether such Loan Default
results from a CRC Monetary Default, a CRC Non - Monetary Default, or a
Borrower 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 3(d) is applicable.
(iii) If there is a CRC Monetary Default or a CRC Non - Monetary Default,
then the Acceleration Option shall apply. As provided in the definition of
Acceleration Option, the Base Acceleration Payment shall apply, except as
provided to the contrary in Subsection 4(c).
(b) Exercise- Borrower Contract Default. If there is a Borrower Contract Default, then
CRC may exercise the Purchase Option by delivering a Purchase Exercise Notice to Lender.
Lender shall have no right to exercise the Put Option or the Acceleration Option in the event
of a Borrower Contract Default.
(c) Exercise -Loan Default.
(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) At any time after CRC receives a Loan Default Notice, CRC may
exercise the Purchase Option by delivering a Purchase Exercise Notice to
Lender.
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(iii) If Lender delivers to CRC a Loan Default Notice, the subject of
which is a Borrower Loan Default not resulting from a CRC Monetary Default
or a CRC Non - Monetary Default, then, at any time after delivery of such
Loan Default Notice to CRC, Lender may exercise the Put Option by
delivering a Put Exercise Notice to CRC; provided that, notwithstanding any
other term or condition of this Agreement, if, prior to the last to occur of the
date: (A) that is 30 days after delivery of the Loan Default Notice to CRC; or
(B) of the expiration of the Standstill Period; the underlying 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 of the terms or conditions of Section 3 shall apply .
(iv) If Lender delivers to CRC a Loan Default Notice, the subject of
which is a CRC Monetary Default or a CRC Non - Monetary Default, then, at
any time after delivery of such Loan Default Notice, Lender may exercise the
Acceleration Option by delivering an Acceleration Exercise Notice to CRC;
provided that, notwithstanding any other term or condition of this Agreement,
if, prior to the date that is: (A) ten days after delivery of the Loan Default
Notice, in the case of the first two CRC Monetary Defaults in any given 12
month period; (B) ten days after the occurrence of the CRC Monetary
Default, in the case of the third or any subsequent CRC Monetary Default
in any given 12 month period; or (C) in the case of a CRC Non- Monetary
Default, the last to occur of the date that is: (1) 30 days after delivery of the
Loan Default Notice to CRC; or (2) the expiration of the cure period provided
to CRC in Section 6; the CRC Monetary Default or the CRC Non - Monetary
Default, as applicable, is cured, then: (A) the exercise by Lender of the
Acceleration 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 Section 4 shall apply.
(v) Notwithstanding anything to the contrary set forth herein or in the
Loan Documents, if, prior to the expiration of the Standstill Period, either:
(A) CRC delivers a Purchase Exercise Notice to Lender; or (B) 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.
3. Loan Purchase Closing.
(a) CRC Exercise. If CRC exercises the Purchase Option, then the Loan Interests
Closing shall occur on or before the date that is 30 days after CRC delivers to Lender the
Purchase Exercise Notice.
(b) Lender Exercise. 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 not resulting from a CRC Monetary Default or a CRC Non - Monetary Default,
the Loan Interests Closing shall not occur until the date that is 15 days after the expiration
of the Standstill Period.
(c) Closing Deliveries. At the Loan Interests Closing: (i) CRC shall pay the Loan
Purchase Price to Lender; and (ii) Lender shall assign the Loan Interests to CRC pursuant
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to assignment documents that: (A) are adequate to vest the Loan Interests in CRC free and
dear of the rights or interests of any other party; (B) contain certifications by Lender to the
effect that Lender: (1) is not in default under this Agreement (including, without limitation, that
Lender is in compliance with the terms and conditions of Section 5); and (2) is not aware of
any defenses or offsets of Borrower to: (aa) enforcement by CRC, as assignee of Lender,
of the Loan Documents; (bb) collection by CRC, as assignee of Lender, of any amounts due
from Borrower under the Loan Documents; and /or (cc) exercise by CRC, as assignee of
Lender, of the rights and remedies afforded by the Laws to secured lenders with respect to
security interests in assigned installment contracts; and (C) otherwise reasonably are
acceptable to CRC.
(d) Delinquency. Notwithstanding anything to the contrary set forth herein, if: (i) the
applicable Loan Purchase Price is the Base Purchase Price; and (ii) 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.
4. Equipment Closing.
(a) Closing. If Lender exercises the Acceleration Option, then, notwithstanding anything
to the contrary set forth in the Installment Contract, the Equipment Closing shall occur on or
before the date that is 15 days after Lender delivers the Acceleration Exercise Notice.
(b) Closing Deliveries. At the Equipment Closing: (i) CRC shall pay the Acceleration
Payment to Lender; and (ii) Borrower shall deliver to CRC a fully executed bill of sale with full
warranties of title transferring the Equipment to CRC free of all liens, security interests, and
equipment leaseholds, which bill of sale shall be in the form attached to the Installment
Contract as Exhibit G.
If there is a Mortgage, use this (it would probably be the Improvements
Closing): (b) Closing Deliveries. At the Improvements Closing: (i) CRC
shall pay the Acceleration Payment to Lender; and (ii) Borrower shall deliver
to CRC closing documents substantially the same in form and substance as
those received by Borrower in connection with its acquisition of the Site
(including, without limitation, that the deed shall be subject only to: (A) the
exceptions to which Borrower's title was subject when it took title; (B) current
real estate taxes and assessments not delinquent; and /or (C) such other
exceptions as reasonably are acceptable to CRC); and (iii) Borrower shall
execute such easements as CRC determines to be necessary or
appropriate.
(c) Delinquency. Notwithstanding anything to the contrary set forth herein, if, due to a
failure of CRC, the Equipment Closing has not occurred within 15 days after Lender delivers
the Acceleration Exercise Notice to CRC, then, in lieu of the Base Acceleration Payment,
CRC shall be obligated to pay the Adjusted Acceleration Payment.
5. 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 6 and either: (i) CRC does not
elect to cure the applicable default by Borrower within the time permitted pursuant to
Section 6; 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 6.
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(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 principal and interest; (B) in the case of a CRC
Monetary Default or a CRC Non - Monetary Default; (C) when Lender would be entitled under
Subsection 5(a) to accelerate the Maturity Date; or (D) 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
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) $ ; 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 3(d), 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 (ii) 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 9(a), 9(c), 10(g), 10(h), 10(i), 10 (j), 10(I), and/or 10(m) of the Loan Agreement
(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 and the
Acceleration Payment are 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 (ii) exercise all rights and remedies afforded by the Laws to secured lenders with respect
to security interests in assigned installment contracts.
(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 (ii) otherwise add to or supplement such costs,
expenses, fees, or charges.
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(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.
6. 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
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 (which Borrower Loan Default does not result
from a CRC Monetary Default or a CRC Non - Monetary 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,
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 (which Borrower Loan Default does not result from a CRC
Monetary Default or a CRC Non - Monetary Default) until the expiration of the Standstill Period.
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.
7. Consents and Protections.
(a) Collateral Assignment. CRC: (i) consents to: (A) the collateral assignment of the
Installment Contract to Lender; and (B) the grant of a security interest in the Equipment to
Lender; as security for the Loan; (ii) agrees that: (A) the security interest of Lender in the
Equipment is superior and prior to the rights of CRC with respect to the Equipment under the
Installment Contract; and (B) the rights of CRC with respect to the Equipment under the
Installment Contract are subordinate and subject to the security interest of Lender in the
Equipment; (iii) agrees to execute such documents as Lender reasonably may require to
effect or confirm: (A) such collateral assignment; (B) the security interest of Lender in the
Installment Contract and the Equipment; and (C) the subordination and subjugation of the
rights of CRC with respect to the Equipment under the Installment Contract to the security
interest of Lender in the Equipment; and (iv) 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 Installment Contract until the first to occur of the
date on which: (A) the Loan is repaid in full; (B) CRC purchases the Loan Interests; or (C)
CRC pays the Acceleration Payment.
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and Forms \Form Tri Party Agreement'Form Tri -Party Agreement.wpd -9-
If there is a Mortgage, use this: (a) Collateral Assignment. CRC:
(i) consents to the collateral assignment of the Installment Contract to
Lender as security for the Loan; (ii) agrees to execute such documents as
Lender reasonably may require to effect or confirm: (A) such collateral
assignment; and (B) the security interest of Lender in the Installment
Contract; and (iii) 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 Installment Contract until the first to occur
of the date on which: (A) the Loan is repaid in full; (B) CRC purchases the
Loan Interests; or (C) CRC pays the Acceleration Payment.
(b) Installment Contract.
(i) If there is a Borrower Contract Default, then CRC may exercise any
remedies available to it under the Installment Contract; provided that, in no
event shall CRC: (A) exercise any remedy of offset that otherwise may be
available to it; or (B) terminate the Installment Contract; unless and until
CRC pays either the Purchase Price or the Full Prepayment Price (as each
is defined in the Installment Contract).
(ii) Notwithstanding anything to the contrary set forth herein or in any
Loan Documents: (A) a default by CRC or Borrower under the Installment
Contract shall not constitute a Loan Default unless and until such default
becomes an "Event of Default" by CRC or Borrower, respectively, under the
Installment Contract; and (B) undeclared Borrower Contract Defaults shall
not constitute Loan Defaults.
(c) Lender Protections.
(i) CRC shall provide a Contract Default Notice to Lender
simultaneously with any notice delivered to Borrower.
(ii) If there is a default by Borrower under the Installment Contract,
then: (A) Lender shall have the right to cure the Borrower default until the
expiration of the Lender Cure Period; and (B) CRC shall accept a cure by
Lender as a cure by Borrower. Notwithstanding the foregoing, no term or
condition of this Agreement shall be deemed to: (A) require Lender to satisfy
any obligation of Borrower under the Installment Contract, or cure any
breach by Borrower of its obligations under the Installment Contract; or
(B) otherwise make Lender liable for any such breach.
(iii) Unless and until CRC pays either the Purchase Price or the Full
Prepayment Price (as each is defined in the Installment Contract), no
amendment, modification, supplement, surrender, cancellation, or
termination of the Installment Contract shall be effective, unless Lender
consents in writing to such amendment, modification, supplement,
surrender, cancellation, or termination. Any attempted amendment,
modification, supplement, surrender, cancellation, or termination of the
Installment Contract without the consent of Lender shall be void and
unenforceable, and shall have no force or effect.
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8. Prepayments. If CRC makes a Prepayment, then: (a) Borrower shall pay the amount of such
Prepayment to Lender for application against the Outstanding Principal Balance; and (b) Lender shall apply
the amount of such Prepayment against the Outstanding Principal Balance.
9. Representations.
(a) No Modification. Each of Borrower and CRC represents that: (i) the copy attached
hereto as Exhibit A is a true, correct, and complete copy of the Installment Contract; and
(11) the Installment Contract: (A) is in full force and effect on the date hereof; and (B) has not
been modified, amended, revised, supplemented, restated, or replaced in any respect,
except as set forth on Exhibit B.
(b) No Default. Each of Borrower and CRC represents that: (i) there are no Borrower
Contract Defaults; (ii) there are no defaults by CRC under the Installment Contract; and (iii) to
its knowledge, no event has occurred, and no condition exists, that, with the giving of notice
or the lapse of time or both, will constitute: (A) a Borrower Contract Default; or (B) an "Event
of Default" by CRC under the Installment Contract.
(c) No Defense. Each of Borrower and CRC represents that: (i) the Installment Contract
is enforceable in accordance with it terms; and (ii) it has no: (A) existing defenses, offsets,
or credits against: (1) the enforcement of the Installment Contract by the other party; or
(2) the payment of any amounts due under the Installment Contract; or (B) right exercisable
at this time to cancel or terminate the Installment Contract.
(d) No Bankruptcy. Each of Borrower and CRC represents that no actions, whether
voluntary or otherwise, are pending against it (and no petition has been filed by or on behalf
to 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.
10. 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 and the Installment Contract to another agency or
instrumentality of the City of Carmel, Indiana, 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 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.
11. Deliveries. Each party shall execute and deliver such additional documents and instruments as
reasonably may be reasonably required by the other parties to accomplish the purposes of this Agreement.
12. 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.
13. 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 Lender at 12821 East New Market Street, Suite 301, Carmel,
Indiana 46032, Facsimile: 317- , Attention: ; to Borrower at
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and Forms`Form Tri Party AgreemenP,Form Tri -Party Agreement.wpd -11-
, Facsimile: , Attn:
and to CRC at City of Carmel, Indiana, One Civic Square, 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 1500, 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.
14. 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.
15. 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.
16. 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.
17. Miscellaneous. Subject to the terms and conditions of Section 10, 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
in this Agreement are attached hereto and incorporated herein by reference.
IN WITNESS WHEREOF, Lender, Borrower, and CRC have executed this Agreement as of
the date set forth above.
MERCANTILE BANK
By:
Printed:
Title:
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and Forms\Form Tri Party Agreement`Form Tri -Party Agreement.wpd -12-
Printed:
Title:
THE CITY OF CARMEL REDEVELOPMENT
COMMISSION
By:
Ronald E. Carter, President
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and Forms \Form Tri Party AgreemenPForm Tri -Party Agreement.wpd -13-
INDEX TO EXHIBITS
Exhibit A Installment Contract
Exhibit B Modifications, changes, alterations, assignments, supplements, and /or amendments
of /to the Installment Contract
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and Forms \Form Tri Party Agreement'Form Tri -Party Agreementwpd -14-