HomeMy WebLinkAboutVillage Financial - PAC Fixed Seating - $795,958.35/2009•
0
0
PAC FIXED SEATING
INSTALLMENT PURCHASE CONTRACT
This PAC Fixed Seating Installment Purchase Contract (the "Contract "), by and between Village
Financial. LLC (the "Developer ") , and The City of Carmel Redevelopment Commission ( "CRC "), is executed
this 2)15day of August, 2009.
1. Definitions. Capitalized 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 equal to.
(a) .0025; multiplied by (o) the Loan Balance as of the due date of such payment; ar.o divided by (c) 4: which
payment is intended to defray the administrative costs that will be incurred by Developer in connection with the
Fixed Seating Loan or the Replacement Loan, as applicable
Agency shall mean any applicable: (a) governmental agency, board, commission, or department; or (b) ot:ner
judicial, administrative, or regulatory body.
Aggregate Fixed Seating Costs shall mean the sum of: (a) the Fixed Seating Costs; (b) he Lender Fees for
the Fixed Seating Loan; and (c) the Loan Costs for the Fixed Seating Loan
- --
Amortization Period shall mean a period of 20 years; commencing or the first day of Payment Period 2.
Books and Records shall mean all of the books and records pertaining to the acquisition of the Fixed Seating
in accordance with this Contract and the Fixed Seating Acquisition Agreement.
Change Order shall mean a change order executed by the Executive Director (or by another designee cf CRC
if the Executive Director is unable or unavailable to execute such change order) and Developer finalizing the
irclusior into the Fixed Seating Specifications of a change t.nat has been • (a) proposed in a Change Order
Request; 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 Fixed Seating Specifications.
City shall mean the City of Carmel, Indiana.
City Agency shall mean an agency, board, commission, department, or instrumentality of the City.
Claims shall 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 that has
accrued on the Loan Balance at the Loan Rate, as of the expiration of Payment Period 2
Collateral Assignment shall mean e Collateral Assignment, Lock Box, and Security Agreement (PAC Fixed
Seating) 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 or condition
of th s Contract to be performed or observed by it receives notice specifying the nature of the failure; provided
that, if the failure is of such a nature that it cannot be remedied within 30 days, despite reasonably diligent
efforts, then the 30 day period shall be extended as reasonably may be necessary for the defaulting party to
remedy the failure, so long as the default;ng 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
Event of Default shall have the meaning set forth in Section 17.
0
•
Executive Director shall mean he Executive Director of CRC (currently Les Oids).
Extension Option shall mean the option to extend the term of the Fixed Seating Loan for a period of five years,
which option may be exercised on the terns 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 Loan Rate through a "swap"
or other mecnanism in accordance with the terms and conditions of Exhibit E
Fixed Seating shall mean an estimated $835,196.00 cf fixed audience seating for use in the operation of the
PAC Tne Fixed Seating is described in the Fixed Seating Specifications.
Fixed Seating Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier,
which agreement shall: (a) be consistent with the Fixed Seating Schedule and the Fixed Seating Specifications
(reflecting any Change Orders); (b) reflect the obligation of Developer to obtain the Warranties; and (c) be
subject to the reasonable approval of CRC.
Fixed Seating Closing Date shall mean the date of the closing with respect to the transfer of the Fixed
Seating If such closing has not occurred at such time as Payment Period`2 expires, then the Fixed - Seating
Closing Date shall be the date on which Payment Period 2 expires.
Fixed Seating Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire the Fixed
Seating in accordance with this Contract and the Fixed Seating Acquisition Agreement.
Fixed Seating Lender shall mean the financial institution making the Fixed Seating Loan.
Fixed Seating Loan shall mean a financing comprised of a loan to Developer, the proceeds cf wh :ch shall be
used to acquire the Fixed Seating, which loan shall: (a) finance the Aggregate Fixed Seating Costs; (b) have
a term of at least seven years; and (c) provide for: (i) interest at a rate accepted by CRC; (i,) interest only
payments curing Payment Period 1; (iii) amortization o4 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 exert se of
the Fixed Rate Option; and (v) the Extension Option.
Fixed Seating Loan Closing shall mean the closing with respect to the Fixed Seating Loan.
Fixed Seating Loan Closing Date shall mean the date of the Fixed Seating Loan Closing.
Fixed Seating Loan Documents shall mean the documents evidencing and securing the Fixed Seating Loan,
including, without limitation, the "Loan Agreement (PAC Fixed Seating) ", the "Promissory Note (PAC Fixed
Seating)" and the Collateral Assignment.
Fixed Seating Schedule shall mean the schedule for the acquisition of the Fixed Seating, which schedule is
attached hereto as Exhibit B.
Fixed Seating Specifications shall mean the specifications for: (a) the Fixed Seating; including specific
identification and/or descriptions of the Fixed Seating; and (b) the warranties from manufacturers, fabricators,
and suppliers to be obtained in connection with the acquisition of the Fixed Seating, which warranties shall:
(i) run in favor of CRC; and (ii) constitute the Warranties. The Fixed Seating Specifications are attached hereto
as Exhibit C.
081109 1433,L2,Inslatlment Co-,tract-PAC Fixed Seating M rcartile via wpd
-2-
•
a
Full Prepayment Closing Date sha'i mean, in the case of the exercise by CRC of the Full Prepayment Option
(or the acceleration by Developer of the Full Prepayment Price pursuant to Subsectior. 18(a)), the: (a) date on
which the Full Prepayment Price is 10 be paid; and (b) Fixed Seating Closing Date.
Full Prepayment Notice shall mean a written notice pursuant to which CRC notifies Developer that i *. is
exercising the Full Prepayment Option.
Full Prepayment Option shall mean the optior (but not the obligation) o` CRC to: (a) satisfy its obligation in
full with respect to the payment of the Purchase Price, and (b) acquire tit'e to Fixed Seating, in advance of the
expiration of Payment Period 2 by paying the Full Prepaymmert Price.
Full Prepayment P rice shall mean the sum o=: (a) the Loan Balance on the Full Prepayment Closing Date; plus
(b) interest thereon that has: (!) 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 Insta•Iment
Payments), plus (c) if the Full Prepayment 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 shat, mean the Payment Period 1 Instalments or the Payment Period 2 Installments,
as applicable.
Law shall mean any applicable feceral, 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 Fixed Seating Lender or the Replacement Lender.
Lender Fees shall mean regular (non- default) lender fees, costs, and expenses actually incurred and paid by
Developer under the Loan Documents, including without limitation and if appl`cable: (a) the fees incurred in
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 shalt not be included in Loan
Costs.
LIBOR shall mean the average of the per annum rates at which deposits in U.S. Dollar Funds are offered to
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 11:00 a m., London
time (or as soon thereafter as practicable) two London banking days prior to the beginning of the 30 day penoc,
as published on Bloomberg LP (or, if no longer published 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 Fixed Seating Loan or the Replacement Loan, as applicable.
Loan Balance shall mean that port:on of the outstanding principal balance of the Fixed Seating Loan disbursed
to pay: (a) Lender Fees with respect to the Fixed Seating Loan; (b) Loan Costs with respect to the Fixed
Seating Loan; and (c) Fixed Seating Costs; provided that, if Developer obtains the Replacement Loan, then,
from and after the closing with respect to the Replacement Loan, the Loan Balance shall mean that portion of
the outstanding principal balance of the Replacement Loan disbursed to pay: (a) the Unamo;tized 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 have been made by CRC to
Developer, even if the Fixed Seating Lender has not yet applied any such Partial Prepayments to reduce the
outstanding principal balance of the Fixed Seating Loan.
381 i09.1433,L2,Installment Contract -PAC Fixed Sea:ing.Mercanti!e via wpd
-3-
0
0
Loan Costs shall mean the actual, out -of- pocket costs incurred by Developer to close the Fixed Seating Loan
and/or the Replacement Loan. To the extent that costs are included • in Loan Costs, such costs shall not be
included in Lender Fees.
Loan Documents shall mean, as applicable, the Fixed Seating Loan Documents or the Replacement Loan
Documents.
Loan Rate shall mean the per annum regular (non - default) rate of interest accruing on the Loan Balance under
the Loan Documents.
Offset /Addition Amount shall mean 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 the quarter with respect to which such Projection Notice applied.
Offset/Addition Notice shall 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 the Installment
Payment to which Developer actually was entitled for the quarter with respect to which such Projection Notice
applied; and (b) setting forth the Offset/Addition Amount.
PAC shall mean _ aworld -class concert hall located on that certain real estate depicted on Exhibit A.
Partial Prepayment shall mean a payment of a portion of the outstanding principal balance 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 during Payment Period 1 and
Payment Period 2.
Payment Period 1 shall mean the period: (a) beginning on the Fixed Seating Loan Closing Date; and
(b) ending on August 31, 2011.
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the Fixed
Seating, the amount of which shall be equal to: (a) the: (i) Loan Rate; multiplied by (ii) the Loan Balance;
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 Fixed Seating 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 of the Fixed
Seating, the amount of which shall be equal to: (a) an amount that will amortize the Loan Balance over the
Amortization Period (or the remainder thereof, in the case of the exercise of the Extension Option or the closing
of the Replacement Loan) at the 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 amount
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.
081109; 1433;L2;Installrnent Contract -PAC Fixed Seating.Mercantile.vl a.wpd
-4-
A
A
Replacement Loan shall mean a financing (or a series of financings) comprised of a loan (or a series of loans)
to Developer, the proceeds of which shall be used to refinance the Unamortized Balance, which loan (or series
of loans) 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 the 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 shall 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 Tri -Party Agreement, which agreement shall contain terms and conditions
substantially similar to the Tri -Party Agreement, modified as necessary to reflect the Replacement Loan.
Supplier shall mean the entity from which Developer will acquire the Fixed Seating.
Surviving Supplier Obligations shall mean obligations of the Supplier under the Fixed Seating Acquisition
Agreement (other than the obligations specified in the Warranties) that survive the acquisition by Developer of
the Fixed Seating.
Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon,fthe- -Fixed Seating or any interest therein; or (b) any granting of a security interest in the
Fixed Seating, other than to the Lender.
Tri -Party Agreement shall mean a Tri -Party Agreement (PAC Fixed Seating) substantially in the form attached
hereto as Exhibit H.
Unamortized Balance shall mean the amount of the Loan Balance on the maturity date of the Fixed Seating
Loan, as the same may be extended by the exercise of the Extension Option; provided that, in the case of a
Replacement Loan obtained after the maturity of a prior Replacement Loan, the Unamortized Balance shall be
mean the amount of the Loan Balance on the maturity of such prior Replacement Loan.
Warranties shall mean the warranties specified in the Fixed Seating Specifications to be obtained in connection
with the acquisition of the Fixed Seating, which warranties shall run in favor of CRC.
2. General Obligations.
(a) Fixed Seating Loan and Acquisition. Subject to the terms and conditions of this
Contract:
(i) Developer shall: (A) close the Fixed Seating Loan, including
executing and delivering the Fixed Seating Loan Documents; (B) after the
Fixed Seating Loan Closing, acquire the Fixed Seating and the Warranties in
accordance with the Fixed Seating Acquisition Agreement; (C) if applicable,
close the Replacement Loan, including executing and delivering the
Replacement Loan Documents; and (D) satisfy its obligations under the Loan
Documents; and
(ii) the proceeds of the Fixed Seating Loan shall be used only to finance
the Aggregate Fixed Seating Costs; provided that, if Developer obtains the
Replacement Loan, then the proceeds of the Replacement Loan may be used
to refinance the Unamortized Balance.
061109;1433;L2;Installment Contract -PAC Fixed Seatmg.Mercanlile vla.wpd
-5-
0
0
O
(b) Fixed Rate Option. Upon receipt of written request by CRC, Developer shall exercise
the Fixed Rate Option; provided that, Developer shall not exercise the Fixed Rate Option
unless requested by CRC.
(c) Fixed Seating Transfer. Subject to the terms and conditions of this Contract:
(i) Developer shall transfer to CRC; and (ii) CRC shall purchase from Developer; title to the
Fixed Seating for the Purchase Price; provided that, if CRC exercises the Full Prepayment
Option, then, in lieu of the Purchase Price, CRC shall pay the Full Prepayment Price.
3. Loan Closing. The Fixed Seating Loan Closing Date shall be established mutually by CRC and
Developer. The Fixed Seating Loan Closing shall take place at the office of the Fixed Seating Lender, or at
such other place as CRC and Developer mutually agree.
4. Loan Closing Documents. At the Fixed Seating Loan Closing, CRC and/or Developer, as applicable,
shall execute and deliver the following documents:
(a)
the Fixed Seating Loan Documents;
(b) the Tri -Party Agreement;
(c) copies of such- resolutions, consents, authorizations, and other evidence -as CRC on
Developer, as applicable, or the Fixed Seating Lender reasonably may request to establish
that: (1) 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
(ii) the: (A) execution and delivery of this 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 or Developer, as
applicable, or the Fixed Seating Lender reasonably may request in connection with the Fixed
Seating Loan Closing.
5. Conditions of Performance.
(a) Developer Conditions. The obligations of Developer with respect to proceeding with
the Fixed Seating Loan Closing shall be subject to the satisfaction, or waiver in writing, of the
following:
(i) Developer, exercising commercially reasonable discretion, shall have
approved the Fixed Seating Loan Documents and the terms and conditions
of the Fixed Seating Loan;
(ii) 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 obligations of CRC with respect to proceeding with the Fixed
Seating Loan Closing and the payment of the Purchase Price shall be subject to satisfaction.
or waiver in writing, of the following:
081109:1433;L2; Installment Contract -PAC Fixed Seating. Mercantile vt a wpd
-6-
A
0
(i) CRC, exercising commercially reasonable discretion, shall have
approved the Fixed Seating Loan Documents and the terms and conditions
of the Fixed Seating Loan;
(ii) there shall be no breach of this Contract by Developer that Developer
has failed to cure within the Cure Period; and
(iii) all of the representations and warranties set forth in Subsection 6(b)
shall be 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, and the Collateral Assignment; and (B) perform its
obligations hereunder and under the Tri -Party Agreement and the Collateral Assignment;
(iv) CRC has been authorized by proper action to: (A) execute and deliver this Contract, the
Tri -Party Agreement, and the Collateral Assignment; and (B) perform its obligations hereunder
and under tif`e Tri -Party Agreement and the Collateral Assignment; and (v) this Contract, the
Tri -Party Agreement, and the Collateral Assignment are the legal, valid, and binding
obligations of CRC.
(b) Developer. Developer represents and warrants to CRC that: (i) Developer 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 Loan Documents; (ii) Developer is a limited
liability company organized and existing under the laws of the State of Indiana; (iii) Developer
has the power to: (A) enter into this Contract, the Tri -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 Tri -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 acquisition thereof pursuant to the Fixed Seating
Acquisition Agreement, Developer shall: (A) be, and continue to be, the lawful owner of the
Fixed Seating; and (B) have, and continue to have, good and marketable title to the Fixed
Seating, free and clear of all liens, claims, security interests, encumbrances, and restrictions,
except for this Contract; and (vii) no financing statement covering all or any portion of the Fixed
Seating is on file in any public office.
7. Change Orders. If CRC desires to make a change to the Fixed Seating Specifications, then CRC shall
submit a Change 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 Fixed Seating
Costs; and (b) that, if implementing the Change Order Request would increase the Fixed Seating Costs, then
CRC shall pay the amount of such increase. So long as CRC agrees to pay any increase in the Fixed Seating
Costs that results from the proposed change, the Change Order Request shall be deemed to be approved by
Developer. If a Change 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 Fixed Seating Acquisition Agreement; and (b) with respect to items of Fixed
Seating, title of which has not been transferred to Developer.
081109.1433.L2:Installment Contract -PAC fixed Seating.Mercantile.vla.wpd
-7-
D
A
8. Acquisition of Fixed Seating.
(a) Acquisition Agreement. Developer shall: (i) enter into the Fixed Seating Acquisition
Agreement; (ii) comply with all of its obligations under the Fixed Seating Acquisition
Agreement; (iii) keep the Fixed Seating Acquisition Agreement in full force and effect, without
any default by Developer thereunder; (iv) not amend or modify the Fixed Seating Acquisition
Agreement, except with the prior consent of CRC; provided that, without the prior consent of
CRC, Developer may make minor, non - substantive amendments or modifications of or to the
Fixed Seating Acquisition Agreement; and (v) enforce the terms and conditions of the Fixed
Seating Acquisition Agreement against the Supplier (including that, to the extent that there are
Surviving Supplier Obligations, Developer shall enforce the terms and conditions of the Fixed
Seating Acquisition 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 shall 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 Fixed Seating,
Developer shall collaterally assign the Fixed Seating Acquisition Agreement to CRC.
(b) Acquisition. Developer shall: (i) acquire title to all of the Fixed Seating in accordance
with the Fixed Seating Acquisition Agreement, the Fixed Seating Schedule, and the Fixed
Seating 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, then, in addition to delivering the Warranties to CRC, Developer shall assign
the Warranties to CRC. If the Aggregate Fixed Seating Costs exceed the proceeds of the
Fixed Seating Loan, then, upon receipt of reasonable documentation evidencing 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 the Fixed Seating and obtained
(and delivered to CRC) the Warranties, CRC shall check the Fixed Seating and the Warranties
against the Fixed Seating Specifications. If CRC determines that the Fixed Seating and /or the
Warranties do not conform to the Fixed Seating Specifications (reflecting any Change Orders),
then: (i) CRC shall provide to Developer written notice thereof; and (ii) Developer shall address
the non - conformity directly with the manufacturer, fabricator, and /or 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 such expenses.
(d) Statement. At such time that CRC confirms that the Fixed Seating and the Warranties
conform to the Fixed Seating Specifications (reflecting any Change Orders), CRC shall
execute a statement in favor of Developer stating that Developer has: (i) acquired the Fixed
Seating, and obtained (and delivered to CRC) the Warranties, in accordance with the Fixed
Seating Specifications (reflecting any Change Orders); and (ii) no further obligations with
respect to the Fixed Seating and the Warranties (including that CRC shall be responsible for
pursuing any claims under the Warranties).
(e) Sole Warranties. CRC acknowledges that: (i) Developer is not making any
independent warranties with respect to the manufacture, fabrication, and /or supply of the Fixed
Seating; and (ii) although Developer is responsible for obtaining the Warranties, Developer is
not responsible or liable for: (A) enforcing the Warranties; or (B) a failure by any manufacturer,
fabricator, and /or supplier, as applicable, to honor the Warranties.
081109; 1433;L2;Inslallment Contract -PAC Fixed Sealing.Mercantile.v1 a.wpd
-8-
0
0
•
9. Acquisition of Fixed Seating- Payment.
(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.
(ii) The Payment Period 1 Installments shall be: (A) in the amount
determined pursuant to Subsection 9(a)(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 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
Pend `1 Installment), and within the period between the-first and fifth
business days of each February, May, August, and November during
Payment Period 1, 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 interest payment on the Loan (using the
same method of calculation as the Lender); and (2) the Administrative
Payment; for the next quarter; and (B) the amount of the Payment
Period 1 Installment due and payable by CRC on or before the next occurring
Payment Due Date.
(b) Payment Period 2.
(i) 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 Period 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 which Developer is
entitled may fluctuate due to: (A) changes in the Loan Rate; 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
principal and interest payment on the Loan (using the same method of
081109.1433;L2;Installment Contract -PAC Fixed Seating.Mercantite.vla wpd
-9-
0
0
e
calculation as the Lender); and (2) the Administrative Payment; for the next
quarter; 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 less
than the actual amount to which Developer was entitled on the Payment Due Date with respect
to which such Projection Notice applied, then, with the next Projection Notice, Developer shall
deliver to CRC an Offset/Addition Notice. Notwithstanding the terms and conditions of
Subsection 9(a)(iii) or 9(b)(iii), as applicable, on or before the next occurring Payment Due
Date, CRC shall pay to Developer the amount set forth in the current Projection Notice,
adjusted by the amount of the Offset/Addition Amount, as set forth in the Offset/Addition
Notice.
(d) Partial Prepayment. CRC may make a Partial Prepayment at any time; provided that,
if a Partial Prepayment is made more than 90 days before the maturity date of the 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 promptly shall pay the amount of such Partial Prepayment to the Lender for
application against the Loan Balance.
(e) Cloeing-Payment. Subject to the exercise by CRC of the dull Prepayment Option, on--
the date on which Payment Period 2 expires, CRC shall pay the Closing Payment to
Developer. Promptly thereafter, Developer shall pay the Closing Payment to the Lender,
thereby paying off the Loan in full.
10. Acquisition of Fixed Seating - 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 that,
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 than
90 days prior to the expiration of Payment Period 2, then the Full 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 lieu 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. Fixed Seating Closing. On the Fixed Seating Closing Date, Developer shall transfer to CRC title to
the Fixed Seating. In connection with such transfer: (a) CRC shall pay either the Closing Payment or the Full
081109; 1433,L2;Installment Contract -PAC Fixed Seating.Mercantile.vla.wpd
-10-
D
D
O
Prepayment Price, as applicable; and (b) Developer shall deliver to CRC a fully executed bill of sale with full
warranties of title transferring the Fixed Seating to CRC free of all liens, security interests, and equipment
leaseholds, which bill of sale shall be in the form attached hereto as Exhibit G.
12. Options.
(a) Fixed Rate. So long as: (1) 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 under the Loan Documents; Developer, upon receipt of written
request and otherwise in accordance with the Loan Documents, shall exercise the Fixed Rate
Option.
(b) Extension. 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 Extension Option; and (iii) the Extension
Option remains available under the Loan Documents; Developer, upon receipt of written
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 Repiacement Loan. Developer shall be deemed to 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; (11) cooperates in good faith with the efforts of such finance
professional; (iii) cooperates in good faith with the efforts of CRC in connection with obtaining
the Replacement Loan; and (iv) provides to CRC monthly reports with respect to the progress
made in obtaining 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
Fixed Seating Loan that Developer or its finance professional has identified as possible
substitutions for the Replacement Loan. If Developer obtains the Replacement Loan, then:
(1) at the closing with respect thereto: (A) Developer and the Replacement Lender shall
execute the Replacement Loan Documents; and (3) 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
1% of the Unamortized Balance.
13. Affirmative Obligations. Developer acknowledges and agrees that, at all times, Developer shall
comply with the covenants and agreements set forth in this Section.
(a) Developer shall comply with all Laws in: (i) the conduct of its business and other
operations; and (ii) the performance of its obligations under the Fixed Seating Acquisition
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 Fixed Seating in accordance with this Contract and the Fixed Seating Acquisition
Agreement; or (iii) the sale of the Fixed Seating to CRC in accordance with this Contract.
081109,1433;L2; Installment Contract -PAC Fixed Seating.Mercantile.vl a.wpd
A
O
0
(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 affect: (i) the business, operations, or financial condition of Developer; (ii) the
acquisition of the Fixed Seating in accordance with this Contract and the Fixed Seating
Acquisition Agreement; and/or (iii) the sale of the Fixed Seating to CRC in accordance with this
Contract; then Developer shall: (i) notify CRC immediately in writing; (ii) prepare and submit
to CRC for its reasonable approval a written plan for addressing and /or responding to such
proceeding, inquiry, or investigation; and (iii) address and /or respond to such proceeding,
inquiry, or investigation in accordance with the plan approved by CRC.
(d) At all times, Developer shall: (i) keep the Fixed Seating free from any and all liens,
claims, security interests, encumbrances, and restrictions, except for this Contract; and
(ii) defend the Fixed Seating against the claims and demands of others.
(e) Developer shall keep and maintain true, correct, accurate, and complete Books and
Records. All Books and Records shall be kept and maintained in accordance with generally
accepted accounting principles consistently applied.
(f) CRC and its attorneys, accountants, representatives, architects, engineers, and
consultants at all reasonable times shall have: (i) free access to, and rights of inspection of,
the Books aFid 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 that, at all times, Developer shall comply
with the covenants and agreements set forth in this Section.
(a) Except as approved by CRC: (i) there shall be no Transfer by Developer; and
(ii) Developer shall not 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
Fixed Seating in any public office, except financing statements in favor of the Lender; or
(ii) cause or permit any such financing 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 Developer or the
percentage of ownership in Developer, if the effect of such change is that Developer no longer
is controlled by, or under common control with, ,26L
notify CRC in writing of any change in the members of D
ownership in Developer.
; or (iv) fail to promptly
eloper or the percentage of
(d) Developer shall not: (i) amend, modify, or restate the articles of organization or
operating agreement of Developer; (ii) cause or permit any such amendment, modification, Si'
or restatement; or (iii) be dissolved, wound up, or converted to another type of entity, or have
its existence as a limited liability company terminated.
(e) Developer shall not: (i) sell, convey, or transfer to any person any interest in
Developer; (ii) otherwise encumber, pledge, or assign any interest in Developer; (iii) grant any
security interest in any interest in Developer; or (iv) cause or permit any such sale,
conveyance, transfer, encumbrance, pledge, assignment, or grant of security interest.
081109:1433:L2:Installment Contract -PAC Fixed Seating.Mercantite.v1a.wpd
-12-
0
(f) Developer shall not make or permit to be made any material change in the character
of its business as currently conducted.
15. Liens /Encumbrances. Neither Developer nor CRC shall suffer or cause the filing of any mechanic's,
supplier's, or similar lien against the Fixed Seating, or any part thereof. If any mechanic's, supplier's, or similar
lien is filed against the Fixed Seating, 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 filing
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 foregoing would permit the attachment
of a mechanic's, supplier's, or similar lien to the other party's interest in the Fixed Seating.
16. Preservation. If Developer fails to: (a) make any payment under the Loan Documents or the Tri -Party
Agreement when due; or (b) timely observe or perform any obligation to be observed or performed by it
pursuant to the Loan Documents 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 of 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
Fixed Seating Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the Fixed Seating
and /or the interest sfi Developer therein; and (b) Developer shall pay, upon - receipt of- written demand, all
reasonable costs and expenses incurred by CRC in connection with making any such payment or observing
or performing any such obligation (including, without limitation, reasonable attorneys' fees).
17. Events of Default. Each of the following shall 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 Developer delivers
written notice thereof to CRC.
(b) Developer's failure to compiy with 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 Fixed Seating
Acquisition Agreement, and the continuance of such failure beyond any applicable cure period
specified in the Fixed Seating Acquisition Agreement; 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 failure 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
081109:14333,2:Installment Contract -PAC Fixed Sealing.Mercantile.vla.wpd
-13-
a
0
failure is not cured within ten days after such payment is due; and (ii) with respect to any other
obligation, if such failure is not cured within the Cure Period.
(e) Any: (i) Transfer by Developer, except as expressly permitted in 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), or 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 liquidation or the sale, transfer, conveyance, assignment, pledge, or other
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 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.
(i) 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 is instituted against CRC or Developer,
and such proceeding is not discharged or dismissed within 60 days.
(j) Any portion of the Fixed Seating, or any substantial portion of the other property or
assets of CRC or Developer, is placed in the hands of any receiver, trustee, or 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 lien or
security interest on all or any portion of the Fixed Seating, whether such security interest or lien
is superior, equal, or junior to the security interest or lien held therein by the Lender.
(1) The making or filing of any levy or execution on, or any seizure, attachment, or
garnishment of, any portion of the Fixed Seating or the interest of Developer therein.
18. Remedies.
(a) Remedies. If there is an Event of Default, then the non - defaulting party, without
further notice or demand, shall have the right to exercise any rights 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
this 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 - defaulting party), performing the obligation that the defaulting party has
031109;1433;L2.Instaliment Contract -PAC Fixed Seating Mercantile.vta.wpd
-14-
0
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 of
Default; and
(iii) 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; provided that the Full
Prepayment Closing Date shall occur on a date designated by Developer.
(b) No Waiver. Neither: (i) a waiver by either party of an Event of Default; nor (ii) an
exercise by either party of any right or remedy with respect to an Event of Default; shall be
deemed either to: (1) constitute a waiver of any subsequent Event of Default; (ii) release or
relieve the other 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 (ii) any right or
remedy of Developer with respect to such Event of Default. The rights and remedies
hereunder are cumulative, and no: (1) 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 the
defaulting party; and /or (ii) in connection with exercising its rights and remedies with respect
to any Event 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
survive the acquisition by CRC of the Fixed Seating.
19. Notice. Any notice required or permitted to be given by either party to this Contract 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 Developer at 770 3' Avenue Southwest, Carmel, Indiana 46032,
Facsimile: 317 - 587 -0340, Attn: Bruce Cordingley; 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.
Either party may change its address for notice from time to time by delivering 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 Replacement 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 of 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 Tri -Party
081109; 1433;L2;Installmenl Contract -PAC Fixed Seating.Mercantile.vl a wed
-15-
0
0
Agreement, as applicable; provided that, notwithstanding any assignment: (a) Developer shall remain fully liable
to perform all of its obligations under this Contract; and (b) a consent by CRC to any assignment shall not
release Developer from such performance.
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; and /or (b) the: (i) breach by CRC or Developer, respectively, of any
term or condition of this Contract, the Tri -Party Agreement, or the Replacement Tri -Party 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 in the case of the Tri -Party Agreement, all prior
representations and agreements by or between Developer and CRC with respect to the
obligations set forth in this 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 (ii) as permitted by the Tri -Party Agreement or the
Replacement Tri -Party Agreement, as applicable. This Contract may be executed in separate
counterparts, each of which shall be an original, but all of which together shall constitute a
single 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
limit or alter the terms and conditions of this Contract. The invalidity or unenforceability 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
of the terms and conditions hereof, shall: (i) inure to the benefit of; and (ii) be binding upon;
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
Fixed Seating.
(d) Authority. Each person executing this 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 conveniens "; 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 condition
hereunder, in any case as the result of: (i) an act or omission of the other party; or (ii) any other
091109;143312 :Installment Contract -PAC Fixed Seating Mercantile.vla.wpd
-16-
D
D
cause that is not within the reasonable control of such party (including, without limitation,
inclement weather, the unavailability of materials, equipment, services or labor, anc utility or
energy shortages or acts or omissions of public utility providers); then (i) observation,
performance, or satisfaction shall be excused for the period of such delay or prevention; and
(ii) the dates, and other deadlines for observation, performance, and satisfactoon shall be
extended for the same period.
IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the day and
year set forth above
gal*, oc, 1433,L2;Installment Cor,tracl -PAC Ficed Seatirg Mercantile via wpd
-17-
DEVELOPER:
VILLAGE FINANCIAL, LLC
By /69-tiLt'a-°
Printed.
Title:
CRC
THE
RF,E3EVEL : •MENT C/, 4 'ISSION
CITY OF
CARMEL
Bv:
Ronald E. Carter. President
D
Index to Exhibits
Exhibit A Depiction of PAC Site
Exhibit B Fixed Seating Schedule
Exhibit C Fixed Seating Specifications
Exhibit D Form of Collateral Assignment
Exhibit E Terms and conditions for Fixed Rase Option
Exhibit F Terms and conditions for Extension Option
Exhibit G Form of Bill of Sale
Exhibit H Form of Tri -Party Agreement
03110?0433,L2,Installment Contract-PAC Fixed Seating Mercantile vla.wpd
-18-
0
)1111yr
TnrUJ
•1
1 r.
1 11 11
uas
1111110hiroutmorlIIIIIMUI I1I ITI mm, All orrti
11111 rii 11114 lI to nil no 11
11 I 11111 1110111M1111 MI !III'
•
0
INIMM111111Mr"'54''
EXHIBIT B
Equipment Schedule
PAC Fixed Seating
Commence acquisition ir. third quarter of 2010
Complete acqu'sition within four weeks after commencement
O
CONTINUATION SHEET
i 00(-1.1A f1/ 1. ;/();
'I IA 13,,■.,iniciit ()202, APPLICATION' AND 1 01111111 I I■14! 1-(1R p.A f.N
sigilca certification 1
:ab1i1:1(lo115 ai11,11.111ft 11111 SILileti 111
C■dm 1 1111 C.,,nnacts win,', ,Ipjlly
SECC)A, inc"
APPLICATION NO 2
A ITLICA1 ION PATE: 051'12/09
PERIOD 05/31/09
SI;LIL)A'S PROJF.t N( ') 178G-,IRD
- .ini • - •
A
Li
■ •
. D 1
1
- _..„ t-. •
. ,.
I 1 WO
DI:SCI<IPTII)N Ul, 'NOM':
SC111:1)111.11)
1V010,, f'inAPI rru)
MA I I.RIAI,S
101Al.
',,
liALANCI;
1(1. I ..1 INA( ,I.
Ni)
`...A1.1:1-
FROM PRI. \,1,./1r,-,
iii 1 14[00
viq.sLN ft y
COMPLIA LD
,1; - ( I
10 I-IMSII
(10 ‘'Al+..!ABI ,...
A;TLICA1-10%,
-..10REI)
11,401 IN
1; GI; 1
kk() S rc.)1-2ED
11) DATE
iD■ u.1 n
0.-- 7)
k,,, I I.)
1
pc,!,,m,,nce S Payhtcal ii,,i
..,.1,,I; (lo
' .'<.3.:,t) 0.;
S.350Lo0
!fv,.
$3 e, () li
2
3,111111 piny:1111's. b.rigmc,..,Ing.
7',,O011 (31
'. ,,11,0131
i',..0011',41
',(11',,
: cot) (11)
N;ii-npictl, Coordination
1.1 9(I
3
1'10,211u:1m411 sJI Cli.Stufli 1 ,ibi t.
'01 Oa 11
S') 000,011
4
i'locinc:nr.ni of (:tisulin HO i',40,,,
; )-,;.,1011,10
1:'7.i41l3 Oil
110,,
5
i•i.wil Atidicio.::: Sealing Nlateii.ii .
1.14. 00
36-1,3.16.(0)
0
Fixed AuLlienot Seating • I „il-ui
52.000 00
X2,400 00
11.00
i
i"./C.11;Iiiinti;ble :;CIli1111', - NI,111l1ll,
7(31)1)111)
/1,:)1410:)
(1,10
F.,
1)cintaintablc Seatini: - Libor
/ 400110
7.401) 011
111111
9
(iene,' al Alluwan,..e
i',,i)00 00
33,1,00 011
1' ,,,I)
[/1
CAD A llowaq,c
5,I 101 nil
:',.■1110,11()
0110
GRAND TOTALS
.15 196 111
, . i , )'l)
_ '11)14) )
0;1
' ,34)(1.00
7 1 ( .! t 0,)
4 1 5 10
Users may °Matti validation ot this dot. Jrnent by requesting of the license .1 completed AIA Document D401 - Certification of Docu nent's Authenticity
1:1.111, •
41.1- P.P.))
o
February 22, 2009
proiect Scheculie:
INDIANAPOLIS STAGE SALES & RENTAL, INC.
905 MASSACHUSETTS AVENUE
INDIANAPOLIS. !INDIANA 46202
317-635-9430 - 317-635-9433
www.indystage.com
Padorrinate!y a supplier of equipment for lithe czo.r tracicirs to i.nstaliindiapap.olis Stao.a,
schedule Oli: to coincide kivith tn eecls those coot.actors as es:ablished hv
Project tAansoer Insta'lation of fixtures wUl take plaae at the aporopria..e ;Arne
estab 'shed by t:,,e Proec ,\Aanager
•SchedulE.,, of Values
Event Value
Submitta s S45,000.00
IDElk-oc;:es 6 rac3:s 34 500 00
197,500.00
enerzizatic•n 25,000.00
G?nerat Allowance 100000.00
Trainihb Comoledon E,334.00
Total 3818,334 00
S'_;iledUle. of Submittals
Dimming and control devices for Lighl n.
xtures
Sp3ta
opy of the Memorandum of Understanding Lefween `.age End ccal
he International Alliance of Theatrics) Stage Employees (TSE) is attac'ied.
' personne' wage rate is 34750 per hour
e ,[]or Hirs
Icnc :r for this bi-() ect tc he 200 lnJrS
0
D
25310
RE GIONAL PERFO=:MING ARTS CENTER - INT =RIOR
INTERIOR FINIS -1ES P5
SECTION ".2 61 GO — FIXED A.UDITCRiJtv1 SEATING
PART 1 - GENERAL
SUi•,1f:1AF''r'
Irclu ;es
▪ eresta' :retried riser r- cuntec:. and aemnuc•t b e Chars locate,' nn -
shown on Fixed Auolcr:e Seattnq drewlrgs) rnc- udi,rtg.
a Finishec p :v`..JCC chair back with cheer v ' :teal gran Arnerc E ack Cry n,•
ve•teer ;quarter sawn; on :,ank and f-on: for Cush on
b Frn1s iec p•ly ooc• seat oottorn ::`rth r.'ear vertical gra n ;•.nterir:an B s..,, Cyr:
veneer. to match chair back with ftarn cushion
• Upnols:ery fabric for all of the fixed et-airs (coiir as setr:Ct&d by rc1- .It, =c-
d upholstery fsbnc to be s,,pplied to the Loose Chair rI n uf,.ic1urcr art()
Eerich .i .wor . cantract J' cf t•1i• same Ict. style. cc.Irr and •
!').eC t: :I<1r uphoI lery
Fln :_!i C SOild American Bled. Cherry a'^'.rostr, N,il O'CC .- ;_r f• , lu;"r.. ci
chair back and seat bottom]
Finrshec solid Ai-nonce!' Black Cherry a•sie end stanch ns as
drawings, Or Add/Alternate stock end panels.
:. Meta: Sapply a terminal device pedestal mou is s :c::. irra .ntlrc s:a car
riser Incenls custcrn color paintird
lus s mo.inted polished Crass Row Letter aria _;cat Number Plagues
A. sle ring; par el lights as per Architect's drawings (LED light source recessac
the underside of :he end stanchion arm c•er hang as per the Archrtec..s •: rdr.`.
..she lighttranslorrne. -s for remote installation and telmina :icr
2'-ocuction mock -ups
:rare fabric
Spare parts
Swing a. ay end panels
Di-ntounlable .chairs as i; ;::,n On the Jrt-v:ings ganged iu car-`s
A'Jor^. 111 :his Division
▪ `.'rc1Ik of lois Seci..cn shad ilictude. but r.c; be limited to
a
Field dimensions by tr'r sub - contractor
Ir;stallatier methods statement
• c• •;'
c.ul IIg layout Url (Urrrn +iCr% for S18L' penbt`a11JIr` Isut•'l i`,' ';
'e -If cation %' location of SI0 JenetratIcris for al: Glai `.vlth
ono embeds
'•ccLstie ljshr,,l et C`dcr. ;.. air tc• mina' le ' c_ 1 1 '
i f 3hr catien!f'A0Se :rt :)iy
r Sh.Jmert tc sae
li Safe strrsge aria in=taratinn
O` ner'Operatc-s ".1anucl
O
e
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
C. Related Work Specified in other Sections
Division 3: Concrete
a Floor slab penetrations for supply air terr ;nal device pedestals.
b. Balcony riser faces for attachment o' riser- mounted chairs
c. Conduit locations for end panel aisle tights
2 C:visior. 9: 'Finishes:
'2 610 -2
a Coordination of :floor /user /c•nairwagon finishes wit chair attachment.
2. Division 11 i 14: Theater Equipment
a Section 11 61 24: Chairwagons and .-IMP Wagons
a. Division -26 Electrical Work
a. Aisle light power
1.2 DESCRIPTION OF SYSTEM
Fixed Auc ence Seating
1. The work of this section includes the fabrication and ins:e lation of fixed chairs mounted
on air diffuse pedestals, risers and demountable sleds, on four levels of he Concert Hall
(as shown on Audience Seating drawings). The c•nairs are to be laid out using three
different seat widths 19 ", 20" and 22" as shown on Audience Seating drawings and as
beiow.
a. Main Floor - Forestage Lift Chairwagons & House Mix Position Chairwagons:
119 Chairs as shown on the drawings
1) Curved rows, flat floor and sloped
2) Floor - mounted (supply air terminal device pedestal rnoun:s) on all
chairwaoons
3) Maximum chair envelope as shown on the drawings
4) Chair back angle as shown on the drawings
b. Main Floor: 628 Chairs + 56 Demountable Chairs as shown on the draw ngs
1) Demountable chairs ganged in pairs as noted on the drawings
2) Curved and stepped rows, flat floor and sloped
3) Floor - mounted (supply air terminal device pedestal mounts)
4) Maximum chair envelope as shown on the drawings
5) Chair back angle as shown on the d-awings
6) 20 Swing Away End Panels
c. 1st Tier:
d 2nd Tier.
229 Fixed and Demountable Benches (N.I.C)
Loose Chairs only (N.I.0 )
25213
RPGIONN,_ :PERFORMING AR1S CEN1 ER - INTERIOR
IN7ER OR F NISHES P5
0-3
e 3rd 7:er: 1E'. F:xed Chess + 24 Demountable Chairs as shown on the-
1) Ci_.ect and stepped rows, kat floor:
• "• .;iser-rnountred, cocitinated with adiacen!. air EICI 10 'F.ce ;C.:. (1F-.C_.
3) _est row nf chairs are floor rroirrited(supply e:r ter-nu-Ian
• Maxim.Jrn oha erivt-Hor.re shovvr Gil the dremrins
Cna:r bcrc ariole E.- .9 SI' 3V;11 en .i12 dCE.r.V1n,2ti
SuBkAITTA_S
„7. P:c.,corrye .0 and the
St_t•_ittals •
--
cern:Jere nos of rnaleria's .n acco'ualice
Divisior 1 IIICIU0 2 standard oataiug oul sneers a-le sriect:isatiorss at! eet,,e---J-:
Nc :e. custom r1100 ficalions or deviations from iri-iso star:card cut ere
Include test reperts as evioe:ice 10,73 the proposed (Air: r ITOIeO
(Egli lee 1' eltS et a' S L?okon
atic proposed se'.'::e oonfra.4 specifier: h tiffs Sr:r.:.tipil
cfSilDri Sut,n:iltr-ds
rs;orieck_rie of secrnittals, fa:erica? on and rnstall,:-tion .'u or
10 tug:alio!) of thrs cf verf ir Inc
pourid of the car oert hdlg slabs
LI Shop Dravy ngs
Preduolion shop d-LrrNirT ard
After completion cf an acceptable rev;e,,v cf Mpck-Up
• pr or to '21;r-cation of :he scat rig tic Is for a:-:tallai en, p-nviue t.n zt C.'
1:4-c:duct:or mock-up chairs k:r Mc 'r ups shall r of ect al: rrocrft,:ati;Jris
• cur 15 Slop drowirig 50E-,11f..,i,irair all 'ec.turc-
c•_:fritirig to be alpp red oars snail be two- (2: •.for.c...s r'• .
ori-a (1) nod pane' pa.r is to show foe err peci(.ist,if "
to 5 hc,v, biplo,,a1 (riser en-:f 5. •;
Lach 1-froductiori Mock-up set shell inz.k,de
1 A sle end mpriel at one en-: . 00:y
sle Iich, in air p,i.:s1o1 soritu.e lett,,r and sen rurn:er
-1 JiCEiiCl5
s Jed !of:lin01 ICY ejilent feet
_;; Seloolt,rd
OLiLfl.i a full scale san-sie c.
S..11'1"r■ 1 drU;n9S, a•-•:'
e.X.:131l: cErsIgr featuro.s. appearance instal.at.c3i
ups 04ion of the VvOri, 01 iccalior
rc.ritlired In crio-14inat.nn virth onureffi Ci2:b f'-'111S r c,r,=• ;v:r„Rof, 0G.11.
O
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
1261 0 -4
their option, submit layout drawings that include inserts, embeds, and blockouts in
advance of the remainder of the required submittals.
3. Include the following information and data with shop drawings:
a. Section (drawn at Y2" = 1' -0 ") at center of each type of chair from each sealino
section including pedestal and riser mounted chairs (shown in the context of the
row rise and railings to which it relates).
b. Indicate:
1) Row rise
2) Slope or Flat floor mount condition
3) Back of chair (at center of chair)
4) Chair back angle
5) Chair envelope
6) Egress Zones
7) Chair back height above floor
8) .Chair back overlap of row rise
-_9) Typical center chair standard /pedestal
10) Typical aisle end panel with aisle light
11) End view showing aisle end panel and aisle light
c. Plan, front and rear view of individual chair.
d. Provide layout plan drawings for all fixed seating areas. These plans should
include:
e. Y." = 1' -0" seating plans indicating location and size of every chair, row letters,
seat numbers and widths of aisles and accommodations for swing arm, or
sleds /bye chair device.
4. Shop drawings shall not be reviewed prior to review of schedule of submittals.
5. Shop drawing packages that are incomplete shall be rejected.
6. Acceptance of shop drawings including deviations and inconsistencies not detected
during review shall not relieve the contractor from sole responsibility to provide materials
and work conforming strictly to the Contract Documents.
7. Only shop drawings returned marked "No Exceptions Taken" or "Make Corrections as
Noted" may be used by the contractor in the work. Correct and resubmit any shop
drawings marked "Revise and Resubmit" or "Rejected."
8. If field dimensions obtained after approval of shop drawings require changes in size,
detail or similar considerations, revised shop drawings shall be submitted for review.
E. FINAL SUBMITTALS
1. Supply Operations & Maintenance Manuals, in accordance with Division 1. Each Manual
shall contain:
a. Complete description of the seating system
b. Performance testing data sheets
c. Recommended maintenance procedures
d. Warranty information and all as -built drawings
e. Contact Information
2. Record Drawings
a. The Contractor shall keep one working set of all Contract Drawings, including: all
addenda, revisions, clarifications, change orders and reviewed shop drawings in
the site office and have them available at all times for inspection.
O
0
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
12610 -5
h. Record clearly and indelibly on the on -site record drawings conditions wherever
they deviate from the Contract Drawings or the reviewed shop drawings.
c. Update record drawings to include any late changes or adjustments that occur as
corrections to punchlist items or as change orders after Substantial Completion of
Contract
d. Final payments for the work of this section shall be retained unto the Recorc
Drawings are accepted by Owner and Construction Manager in good order. as
specified.
Warranty
a. Provide a written warranty in accordance witri 11it requir(n t nt -r Gi :s..7n
L, Carry out all Warranty Work with no addit.onai cost to Owner for any (;arts
or transportation. Provide Warranty repiacemoni equipment witnin
tours of notice by Owner. Provide on -site Warranty repair vv'thtn two ;21 flays
notice.
c.
r;1'. II a particular cornoonent. part or piece of equipment tails n-tore than three Ct.,
times curing Inc Warranty period, In that event, within twerty -tour (24) Hours u'
notice by Owner. take whatever action is necessary ;c ;nr;c,ly or wirer :1 wt..;
by design change
d Warranty on components and equipment modified or replaced due •o error in
product engineering shall be same as for original components and equipment--inf.;
shall commence from date of installation of modified or replaced component or
equipment.
e. All barranty Work shall be provided by the contractor Warranty J`Jor -. shall
sub- contracted to another company or service without written approva;, in
advance, from the Owner.
1. Warranty Work shall include. at a mutually agreeable unit, one r 1) site visit
approximately six (6) months after Owner acceptance Provide a crevw, to rune -•.,
all auditorium seating- Work shall include all items covered by Warranty, as wei
as the trim and adjustment of all seating units. This Work shall include, but no: be
limited to: alignment of each row's automatic return seats, tightening_ of loose bo;:s;
and fittings, replacement of broken parts and other similar work_
CONTINUING MAINTENANCE PROPOSAL
Provide a proposal for coniniuing maintenance and ser v :Ce cefur£- oan :lover
?. Proposal shall cover maintenance. arid repair of ever; i:em s,r_ecaried in :his S- :aior'
1 OL:ALITY ASSURANCE
shall ccrti.`y that the equipment supplied meets or exceeds inaustrj staraar'ds a;id tit.:
design criteria specified heroin
1. I: rt, It ie .nler; of this Se.cl:or unit the A Slvl S roes; current irnr-r..ve-'-ems be in.a: i „or ::'•:
into the equipment to ho supplied
The AShl shall be the excitisive desioncn, engineer zinc maruiacttirer of all
Seating.
D
O
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
'.2610 -6
C. The P.SM snail have been continuously engaged in the manufacturing of Fixed Audience
Seating for at least ten (10) years: and shall have a minimum of fifteen (15) completed
installations of similar or larger size.
D Ins :al a:ion shall be performed:
1. D -ectly by the ASM or:
2. By a certified installation sub - contractor as approvec by the CM. Consultant, and
Architect;
3. In :he case of number (2). above, the ASfVi shall provde a factory employed site
installation supervisor, during the entire instal:ation.
E Codes and Slandares
1. Provide materials, components and assemblies that meet or exceed :he cedes,
standards and - Specifications appvying to the Worn.
2 Components must comply with the fo;lowing codes;
a. International Bui.ding Code 2000
b. Indiana Building Code 2003
c. National Fire Protection Association Building Construction and Safety Code
d. All applicable federal. sta:e and local laws, regulations and trade standards also
apply to the Work
F. Pre - Submittal Meeting
1. Meet with CM, Architect, and Consultant at office of Construction Manaoer after schedule
has beer. submitted, and prior to beginning work cn shop drawings. The Auditorium
Seating Manufacturer's project manager and project engineer must attend and be
prepared to review schedule, discuss procedures to be adopted, conditions under which
the Work will be done and to identify alternate recommendations and remedial work
required, should adverse site conditions exist
G Responsibilities
1. All Work of this Section shall be Turn shed under a single sub - contract and be he
responsibil.ty of a single Audience Seating Manufacturer (ASM).
2 All embeds, inserts, and other accommodations required for the structural slabs & risers
shall be coordinated, furnished & installed prior to the construct cn of the structural slabs
& risers All anchorage requiring post- construction drilling of concrete slab shall be fully
coordinated & approved by structural engineer prior to the construction of the structural
slabs and risers.
H. Delivery, Storage and Handling
1 Provide delivery, storage and handling of equipment and tools during installation period.
Protect all Fixed Audience seating throughout construction period
2. Install chairs only after all ether adjacent work is completed in the Concert Hall. The
installaton area shall be brcom - cleaned, mopped, air cond tioned and secure prior to
installation. Protect chairs w•lh. imperforate plastic dust covers throughout the
construction period.
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
I Shop, or Factory Testing
12610 -7
Provide all testing documentation and data that has been conducted on the approve,:
Chair model concerning the structural. assembly, operational. fabric_. and cushion
expected lifespan of each component of the product.
lesting data shall be provide° as part of the shop drawing submittal.
Provide :documentation tnat Inc components meet the flammabiI t', requirements ;;f t,
State of Indiana.
PART 2- PRODUCTS
I iv1ATERIALS
r•• General { _
All rnatenals including upholstery. padding. plywood and laminates st a;l' oe ;n strict c,;;r„t ''-
with all applicable federal. stab- and local codes •r;itn respect t0 fire proofing. fire
spread and toxicity.
E. Plywood
Prcvice hardwood plywood, fabricate° of hot - pressed laminated 1/8- thick harcv.^ 1d
veneers, whicn meets the National Sureau of Standards Specification PS 51 -71.
C Wood Veneer
Outer -roost veneer of plywood to be Architectural °rade, clear vertical grain Amencar
Black Cherry (quarter sawn). The veneer shall run vertical en the seat back and seal
bottom The jointing of veneers. where it occurs shall be book matched.
Wood shall be stained and finished with a thiniin r'n of two 12) chats clear sat r
polyurethane ictistorn stain color to match Architect's conlrcf s,n;;;ies.
0 Lpnolstery Fabric
1 tvlanufacturer
KM 7 writes
2 Waco Street
Greenville, South Carolina 29611
TEL 1594.29` 2551;
l ibex Monair. custom dyec as per Architect selection.
_;. Tests. 72.000 coubte rubs (Wyzenbeck) Meets all fire requirements, inc. Cal 11
1 Alternate: Alternates IT1US1 be approved by Architects and Consultants
Provide upholstery fabric treated for sail-resistance. arid fl. rne resistance.
resistance shai' ne as defined by Federal Specification CCC - f- 1916 Method :.. .
L' I rti 2lt. and .:apable o' passim; Ca'ilornia Hone Furrast.i;-gs i,.r1 B,r :iron - .
D
D
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
E. Upholstery Foam
12610 -8
1. Upholstery foam shall be of neoprene or polyurethane foam 50 ILD (Indention Load
Deflection), fire rated to meet all applicable codes.
2. Upholstery foam shall be non - hardening and non - oxidizing, and resists acids, alkalis,
oils, greases, soaps, abrasions, moisture, mildew and tearing.
F Metal Finishes
All exposed and semi - exposed metal parts shall be finished with a standard powder
coated finish to be selected by the Architect from the complete range of manufacturers
standard colors.
2.2 EQUIPMENT
A. General -
1. Provide all equipment, including fasteners, devices and fabrications necessary for a
complete installation of the Work of this Section. Use only equipment and components
that have been in stock less than two (2) years and have never been used previously.
2. All of the seating units included in this contract shall be silent under normal use. This
includes seat pan raising mechanisms and all the connection and attachment points of
the unit.
B. Chair Standards
1. Provide chair standards fabricated from steel tube or bar stock. Ensure that no portion of
the chair standard extends into the row egress or beyond the chair envelope, as shown
on the Contract Drawings.
2. Provide a direct attachment to tread or riser without use of shims or filler strips.
C. Supply Air Terminal Chair Pedestals
1. Terminal shall be constructed from sheet or plate metal of thickness required by the
manufacturer to maintain the structural integrity of the pedestal.
2. Pedestal shall be custom color painted per the Architect.
3. Perforations shall form a uniform pattern around the pedestal and be of A" diameter.
4. There shall be no sharp edges, and a clean air path shall be maintained through each
pedestal.
5. Provide existing test results that have been conducted on supply air terminals for
acoustic acceptability.
0
0
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
12 6'. 0-2
6. If no tests have been conducted or existing tests are unacceptable the following criteria
shall apply;
The pedestal shall be tested for airflow and sound performance using the trice
Testing Service; ETL Testing Labs; 3933 US Route 411: Cortland, New York
13045-0950 (607/ 756-9851). Tne underfloor plenum mock-up shall ue
by ETL. The tests shall consist of supplying a range of cfm's through tne ptr
mock-up, between 750 cfrn to 1700 cfm. A minimum of 6 different volume
flowrates shall he tested. Linear extrapolation from these results shalt De
performed to gain the performance at the design llowrate. of 26 cfm per
b. The maximum allowable sound power levels for an array ol 6 pecicstais are
follows'
Octave Band Frequency 12511z 250Hz 500Hz 1kHz 2k1Hz 41,1tc.
/Allowable Swt. 141dB 505 000 -305 -506 -500
The testing shaft be witnessed by the Acoustic Consultant. who shalt 0r
thet,:_feating manufacturer for all time and expenses. Per crier') rate for tne Aceestre - - --
C.onsultant is 5 1,250 (not including travel expenses). Labcratory ;Ire Mc:
responsit-Mily 01 the manutacturer. A minimum 01 2 weeks notice 00•91%,:in ••-•
the commencement of the test.
7 Each pedestal shall he centrally located over a 5 diameter hole Tim sent.r.)
manufact,ffor shalt locate the holes. The hole shall be smoorn 811‘.1 free p'.m ar
obstructions to airflow.
Ais:irti End Panels
Provide solid substrate with clear vertical grain American Black Cherry veneer aisio nne
panels to match chair back and seat bottom, as shown on Inc Architect's drawings.
Panel shall be attached v.ith blind fasteners in a mannor to allow easy rernoi.ial
(tornado) for replacement.
Provide litnekups os Shawn on the- Orai,vings as well as standard samples
Aisle Lights
1 Provide a.sle light to illuminate the fluor and the row letter within aisle end 98505
2 Provide an LED light source recessed into the uncerside of the end StaliChi0ii zirm
overhang as shown on the Architect's drawings.
Provide Aisle lights to be custom :.:.olor pointed per Architect
-1 Instoll aisle lights wilh aisle end standards and terminations by Division 10 Flexc.-ii
conduit from aisle lighting fixturii, on chair shall Le routed through nerlesf,,lf
pr:netr ,----iiir in 10 Junction box in sur..ply air plenum boiow Cot:coil snail bi- socurr--.1 vi
pedetat and inside SleC!,:e so as to {present least disturbance to 80 float
1 fainsiOrillers silar b0 located remote. from the at:chance! Crilirilbi:ir ,InCI ,,,Cii;itii: Hifi,
struclire.. Flovirlu fransformers for installation and sonnootcr: M,.. Divis:ein 16
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
F. • Seat Bottom Assemblies
12610 -10
1. Provide seat bottom comprised of 5/8" finished plywood.
2. Under side shall be clear vertical grain American Black Cherry veneer to match chair
back and end panel
3. Provide seat cushioning comprised of 2" maximum molded high- density foam pad (50
ILD or higher) fastened to shaped plywood former.
G. Seat - Raising Mechanisms
Provide seat - raising mechanisms tthat will raise the seats using any system that raises
the seat with a proven record of reliability and silence. Provide a positive stop for the
seats in the raised position, so that adjacent seats align when raised. Hinges and slops
must be silent in operation.
2. The seat raising mechanism and all its components are required to meet the following
acoustical criteria;
a. The lowering and raising of any seat shall not produce noise in excess of Lmax =
28 dB(A) (fast time weighting) and Lmax =24 dB(A) (slovRime weighting) as
measured at a distance of one meter from the center of the seat using a Type I
sound level meter (meter requirements and time weighting defined in "International
Electrotechnical Commission Publication 61672).
H. Chair Backs
1. Provide chair backs of minimum 5/8" thick plywood with no upholstery on the outer side.
Front and backsides shall be clear vertical grain American Black Cherry veneer to match
seat bottoms and end panel
2. Outside surface of chair back shall be exposed wood
3. Provide cushioned upholstery panels sized to expose a ''Y2" minimum finished wood
border on the front side of the back panel.
4. Upholstery panels shall be hardwood plywood of sufficient thickness for secure
attachment of padding and upholstery, and for attachment of upholstery panels to chair
backs.
5. Padding shall be maximum 1 -' /2" thick, (50 ILD) molded, high- density foam.
6. Provide fasteners that cannot be felt through upholstery.
7. Provide a method of attaching the chair backs to the standards that provides adequate
stiffness to keep -the chairs from rocking, either side -to -side or front to back.
Arm Rests
1. Provide solid American Black Cherry arm rests with contour top, figuring to match veneer
of chair back, seat bottom and end panel.
2. Provide concealed fasteners and hardware to secure the armrests to the standards.
3. Exposed hardware will not be acceptable.
J. Chair Number Plaques
1 Plaques to be flush mounted polished brass per the Architect
2. Provide seat number plaques with recessed flush into the edge of the seat bottoms, and
mechanically fastened with pins of matching finish.
3. Use the seat numbering system shown on the Audience Seating Drawings
K. Row Letter Plaques
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
12 61 0 - 11
1. Plagues to be flush mounted polished brass per the Architect
2. Provide row letter plates mechanically fastened with pins of matching finish, located on
the aisle end panels.
3. Use the row lettering system shown on the Drawings.
2.3 FABRICATION
General
Ccinduct field survey to obtain and confirm all ficid dimens.ons before
fabrication oI any portions of the ,:'Vor-1-;. VVhere the field survey reveals ale
changes in chair size. detail or similar considerations after re,..leip: et si-op • .
document the field condition and (2; revise and resubmit thE Diawings Fi•Pe.:1(1:ztj II
Part ce.rein
Maciraning anci finishing
Tolerances. fits and finishes, where not specified of incichieci o- the
shall conform with goon trade practices
3. meta! Finishes
Finish ail exposed and semi-exposed meta i parts vtd p0'.',(Jer L:o;-iter; 34sh c.:
ASM's stock colors selected by the Architect.
b. Hardware shall be corrosion resistant and black platisiJ
OUALIFICATIONS/ACCEPTABLE PRODUCTS
Acceptable Auditorium Seating Manufacturers are.:
"Theater Solutions Incorporated
121 Park Avenue
Quakertown, PA 18951 USA
Email. www.theatresolutions.com
TEL' 215 538.8035
Irwin Seating Company
3251 Fruir. Ridae NVV
Grand 'Rapids, MI 49544
Email:
FEL. 866.464.7046
Series USA
2224 Eas"Aiinona Ave
Viarsaw. IN 46580
TEL: 500.706 3598
Ducharme Seating International
9275 Le Royer
St-Lecnard, Montreal, OC
HIP 3H7
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
CANADA
Email: infoftducharmeseatino.com
TEL: 888.967.3287
PART 3 - EXECUTION
3.1 EXAMINATION
12610 -12
A. Examine all surfaces to receive Work of this Section and ensure that work done as part of other
Sections is complete and there are no conditions that will adversely affect the performance of
this Work. Do not proceed with this Work until unsatisfactory conditions have been corrected.
Commencement of Work implies acceptance of surfaces and conditions.
13. Review of Field Conditions •
1. Confirm by visit to Place of Work that there are no field conditions that may adversely
affect installation of seating units. Verify all field conditions.
2. If any adverse field conditions exist, obtain approval from Architect for proposed
remedies prior to proceeding.
C. Field Quality
1. Fabricate and install items in accordance with manufacturer's recommendations, and
these Specifications.
2. Provide a qualified, factory trained site supervisor to supervise all Work. Supervisor shall
be available, on site, for the duration of the installation and final Completion Checkout.
3.2 PLACEMENT AND ATTACHMENT
A. Accurately install all chairs true to plumb, line and level.
B. Ensure that all seats tip up freely and rest at uniform positions.
3.3 ALTERATION OF EQUIPMENT DETAILS
A. If any equipment or component requires relocation or change of mounting detail, and this fact is
not known until after shipment due to the sequence of Work, modify the equipment or provide
new equipment to fit revised location or mounting detail. Notify the Architect of any such
changes, and submit all such changes for review prior to fabrication.
B. Do not drill or chip structural slabs or risers without written approval from the structural
engineer.
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
3.4 FINAL INSPECTION
12 61 C 1:.
A Upon completion of installation and adjustment of all Work specified under this Section, provr e
a written report certifying that all of the Work specified under this Section, including provision o.
al! spare parts. is complete and operational and that the Work is ready for (alai inspection. fhe
ASM's site supervisor is responsible for inspecting all chairs prior to checkout
Coordinate the inspection. Inspection shall be scheduled at such time as thee; :s no other
n prcgress in the Concert Hall. All temporary bracing of scaffolding shall he removed to rein;,:
full access to all seating units (prior to inspection).
C. Should any equipment fail to conform with this Specification, repair or rot lace :nat
within fifteen (15) days. and schedule a second inspection.
Any work inspected that is net substaniiafh, cornpiete.at me time of the fund ri.kivr.
it pection may, at the Consultant's discretion. be scheduled..
t. It is the ;Wield of this Specification Section that Final Inspection occur ov2r 0 b_rioC
site visits by the Consultant The second visit is intended for revio of ASM con-,pliar.c
punch list items prepared during first visit.
Should additional visits hy Consultant he required:
1. (1) due to ASM's friiL;re to comply with the terms of this specification: or r2i shoo! ", lhr.
ASM's installation be insufficiently complete to allow Final Inspection tc Occur. the- AS 6:'
snail he liable for all expenses related to additional visits. (These expenses nil ;c:-, Li..:
arc: not be limited to. airfare, fodring and local travel.)
0
25310
REGIONAL PERFORMING ARTS CENTER - INTERIOR
INTERIOR FINISHES P5
3.5 SPARE PARTS
12 61 0 - 14
A. Provide to the Owner and Construction Manager at, or prior 10 final inspection, all of the
following spare parts:
1. 20 - each size of chair seat bottom with upholstered cushion
2. 20 - each type of upholstered chair back
3. 20 - each type chair arm
4. 20 - each type seat hinge assembly
5. 2 sets - any special tools for repairing seating
6. 1 - lot of unlabeled row markers
7. 1 - bolt of fabric upholstery
B. Provide the spare parts in suitable, durable containers, labeled with the part number and
description.
C. Ensure that the spare parts are completely compatible with the installed components.
END OF SECTION
D
EXHIBIT fl
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 S 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;
(I) 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;
(1) 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
Exhibit E
Terms and conditions of Fixed Rate Option
The'terms and conditions of this Exhibit match those in the corresponding Exh.b,t to the Master Loan Program
Agreement. Accord :ng:y, all capita'ized terms used but not defined in this Exhibit shall have the meanings
ascrioed to such terms in the Master Loan Program Agreement. For purposes of this Exhibit; Village
Firancial, LLC constitutes a Qualifies Developer, and the Loan constitutes a Developer
Loan.
Notwithstanding anything in the Agreement or any Developer Loan Documents to the contrary, CRC rray not
later than two business days prior to each Advance Date, elect a fixes rate for a period not to exceed five (5)
years at a rate quoted by the Lender at such time and based on :heir app'icable five year SWAP equiva e.nt
In the event the CRC selects a fixed rate, any Developer loan funded with an Advance for which the fixed rate
option has been elected shall be subject to prepayment fees as set forth below
If prepaid prior to the last day of the calendar month in which the first anniversary of the
Advance Dale occurs: 3% of the amount of tae prepayment
If prepaid during the period: (a) commencing on the first day of the first full caler.dar month
following the first anniversary of the Acvance Date; and (b) ending on the date that is one
year tnereafte:-: 2% of the amount of the prepayment
If prepaid during the period (a) commencing on the first day of the firs: full calendar month
following the second anniversary of the Advance Date; and (b) ending on the date that is one
year thereafter 1% of the amount of the prepayment
If prepaid thereafter no prepayment fee shall apply.
D
O
Exhibit
Terms and conditions of Extension Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master Loan Program
Agreement. Accordingly, al! 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.
Not later than one hundred eichty (180) days prix' to the end of the term of any Developer Loan, the Qualified
Developer and the CRC may request an extension of the term of such Developer Loan. The Lender shall
review and consider such request for ar, extension in accordance with the Lencer's then - applicable
underwriting standards and will notify the respective Qualified Developer and the CRC whether such extens.on
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.
D
D
EXHIBIT G
FORM
BILL OF SALE
Village Financing, LLC, an Indiana corporation (the "Seller "), hereby does bargain, sell
convey, and grant to The City of Carmel 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, attached 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 richt to convey the Equipment; (b) the Eouipment is sold to Purchaser free and
clear of all liens, security Interests, and encumbrances; (c) Seller shall warrant ano defend title to the
Equipment against any and at claims of any kind or nature asserted by any persons or entities; and (d) Seller
shall deliver possession of the Equipment to Purchaser on the date hereof.
The undersigned person executing this Bill of Sale on behalf of Seller certifies that: (a) -le or
she is authorized to execute and deliver this Bill of Sale for and or. behalf of Seller, (b) Seller has full capac.ty.
power, and authority to enter into and carry out its obligations under this Bill of Sale; and (c) this Bi I of Sale
has been authorized by ail necessary action of Seller.
IN WITNESS WHEREOF, Seller has executed th :s Bill of Sale on this day of
VILLAGE F INANCING, LLC
By:
Printed:
Title:
o
ACKNOWLEDGMENT
STATE OF INDIANA )
) SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared
, the of Village Financing, LLC, who acknowledged
the execution o: the foregoing Bill of Sale on behalf of such entry.
WITNESS my hand and Notarial Seal this day of
Signature:
Printed:
Notary RObiic
I am a resident of - County, Indiana
My commission expires
This instrument was prepared by Jennifer R. Shoup, Attorney -At -Law, Wallack Somers & Haas, One Indiana
Square, Suite 1500, Indianapolis, Indiana 46204.
-2-
\Documents \Shoup, Jenny \City' of Car,e1 \Mercantile Lcan -MLPA and Forns \Porn ai11 of Sale to sc on ICs.wpd
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.
Z: \Documents \Shoup. Jenny \City of Carmel\Mercantile Loan -MLPA
and Forms'•Form Tri Party Agreement\Form Tri -Party Agreement.wpd -2-
06Aug09
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
Z:\Documents \Shoup, Jenny \City of Carmel\Mercantile Loan -MLPA 06Aug09
and Forms\Form Tri Party Agreement\Form Tri -Party Agreement.«pd -3-
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.
Z: \Documents \Shoup, Jenny \City of Carmel\Mercantile Loan -MLPA 06Aug09
and Forms\Form Tri Party Agreement\Form Tri -Party AgreementAvpd -4-
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.
Z:\Documents \Shoup, Jenny \City of Carmel` Mercantile Loan -MLPA
and Forms \Form Tri Party Agreement\Form Tri -Party Agreement.wpd -5-
06Aug09
(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
Z:ADocuments \Shoup, JennyACity of Carmel`Jvtercantile Loan -MLPA
and Forms\Form Tri Party Agreement\Form Tri -Party Agreement.wpd -6-
06Aug09
to assignment documents that: (A) are adequate to vest the Loan Interests in CRC free and
clear 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.
Z'Documents.Shoup, Jenny \City orCarmel \Mercantile Loan -MLPA 06Aug09
and Forms \Form Tri Party Agreement \Form Tri -Party Agreement.wpd -7-
(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(1), 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.
Z:\Documents \Shoup, Jenny \City of Carmel \Mercantile Loan -MLPA
and Forms\Form Tri Party Agreement\Form Tri -Party Agreement.wpd -8-
06Aug09
(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
(Hi) 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; (Hi) 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.
Z:\Documents \Shoup, Jenny \City of Carmel Mercantile Loan -MLPA 06Aug09
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.
Z \Documents \Shoup, Jenny \City of Carmel' vtercantile Loan -MLPA
and Forms\Form Tri Party Agreement\Form Tri-Party Agreement.wpd -10-
06Aug09
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
(ii) 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
Z. Documents\ Shoup, Jenny \City of Carmel`nMercantile Loan -M1LPA
and Forms'Form Tri Party Agreement`Form Tri -Party Agreement.wpd -1 1-
06Au g09
, 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:
Z: \Documents \Shoup, Jenny \City of Carmel Mercantile Loan -NILPA 06Aug09
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
Z:\Documents \Shoup, Jenny \City of CarmerMercantile Loan -MLPA 06Aug09
and Forms \Form Tri Pam Agreement'Form 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
Z: \Documents' Shoup, Jenny \City of Carmel`Mercanti le Loan -MLPA 06Au2.09
and Forms\Form Tri Party Agreement`Form Tri -Party Agreement.wpd -14-