HomeMy WebLinkAboutVillage Financial - Hanover Square - $341,305.61/2011•
INSTALLMENT PURCHASE CONTRACT
(Hanover Square Improvements)
This Installment Purchase Contract (Hanover Square Improvements) (the "Contract "). by and
between Village Financial, LL(the "Developer ") , and The City of Carmel Redevelopment Commission
( "CRC "), is executed thisa[day of May, 2011.
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 (b) the Loan Balance as of the due date of such payment; and divided by (c) 4; which
payment is intended to defray the administrative costs that will be incurred by Developer in connection with the
HSI Loan or the Replacement Loan, as applicable.
Agency shall mean any applicable: (a) governmental agency, board, commission, or department; or (b) other
judicial, administrative, or regulatory body.
Aggregate HSI Costs shall mean the sum of: (a) the HSI Costs; (b) the Lender Fees for the HSI Loan; and
(c) the Loan Costs for the HSI Loan.
Amortization Period shall mean a period of 20 years, commencing on the first day of Payment Period 2.
Books and Records shall mean all of the books and records pertaining to the acquisition and installation of
the Hanover Square Improvements in accordance with this Contract and the HSI Acquisition Agreement
Change Order shall mean a change order executed by the Executive Director (or by another designee of CRC
if the Executive Director is unable or unavailable to execute such change order) and Developer finalizing the
inclusion into the HSI Specifications of a change that 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 HSI 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 a Collateral Assignment, Lock Box, and Security Agreement (Hanover
Square Improvements) in the form reasonably agreed to by Developer, CRC, and the HSI Lender
Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition
of this 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 defaulting party: (a) commences to remedy the failure within the 30 day
period, and (b) diligently pursues such remedy to completion
Default Rate shall mean the default rate of interest under the Loan Documents.
Event of Default shall have the meaning set forth in Section 17.
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Executive Director shall mean the Executive Director of CRC (currently Les Olds).
Extension Option shall mean the option to extend the term of the HSI Loan for a period of five years, which
option may be exercised on the terms and conditions set forth in Exhibit D.
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 mechanism in accordance with the terms and conditions of Exhibit C.
Full Prepayment Closing Date shall 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 Subsection 18(a)), the: (a) date on
which the Full Prepayment Price is to be paid; and (b) HSI Closing Date.
Full Prepayment Notice shall mean a written notice pursuant to which CRC notifies Developer that it is
exercising the Full Prepayment Option.
Full Prepayment Option shall mean the option (but not the obligation) of CRC to: (a) satisfy its obligation in
full with respect to the payment of the Purchase Price; and (b) acquire title to the Hanover Square
Improvements; in advance of the expiration of Payment Period 2 by paying the Full Prepayment Price
Full Prepayment Price shall mean the sum of: (a) the Loan Balance on the Full Prepayment Closing Date; plus
(b) interest thereon that has: (i) accrued at the Loan Rate; and (ii) not been paid prior to the Full Prepayment
Closing Date (stated alternatively, interest that has accrued, but not been paid, as part of the Installment
Payments), plus (c) if the Full 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.
Hanover Square shall mean that portion of the real estate commonly known as "Parcel 5" that is delineated
as "Hanover Square" on Exhibit A.
Hanover Square Improvements shall mean an estimated $341,305.61 of improvements to Hanover Square.
The Hanover Square Improvements are described in the HSI Specifications.
HSI Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier, which
agreement shall. (a) be consistent with the HSI Schedule and the HSI 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.
HSI Closing Date shall mean the date of the closing with respect to the transfer of the Hanover Square
Improvements. If such closing has not occurred at such time as Payment Period 2 expires, then the HSI
Closing Date shall be the date on which Payment Period 2 expires.
HSI Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire and install the Hanover
Square Improvements in accordance with this Contract and the HSI Acquisition Agreement.
HSI Lender shall mean Mercantile Bank.
HSI Loan shall mean a financing comprised of a loan by the HSI Lender to Developer, the proceeds of which
shall be used to finance the Aggregate HSI Costs
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HSI Loan Closing shall mean the closing with respect to the HSI Loan.
HSI Loan Closing Date shall mean the date of the HSI Loan Closing.
HSI Loan Documents shall mean the documents evidencing and securing the HSI Loan, including, without
limitation, the "Loan Agreement (Hanover Square Improvements) ", the "Promissory Note (Hanover Square
Improvements) ", and the Collateral Assignment.
HSI Schedule shall mean the schedule for the acquisition and installation of the Hanover Square
Improvements, which schedule (or a reference as to the location thereof) is attached hereto as Exhibit B.
HSI Specifications shall mean the specifications for: (a) the Hanover Square Improvements, including specific
identification and /or descriptions of the Hanover Square Improvements; and (b) the warranties from
manufacturers, fabricators, and suppliers to be obtained in connection with the acquisition and installation of
the Hanover Square Improvements, which warranties shall: (i) run in favor of CRC; and (ii) constitute the
Warranties. The HSI Specifications (or a reference as to the location thereof) are attached hereto as Exhibit B
Installment Payments shall mean the Payment Period 1 Installments or the Payment Period 2 Installments.
as applicable.
Law shall mean any applicable federal, state, or local law, statute, ordinance, rule, or regulation, or any order
of decree of any Agency (including, without limitation, the Federal Reserve System and its Board of Governors)
Lender shall mean, as applicable, the HSI 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 applicable: (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 shall 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 period,
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 HSI Loan or the Replacement Loan, as applicable
Loan Balance shall mean that portion of the outstanding principal balance of the HSI Loan disbursed to pay
(a) Lender Fees with respect to the HSI Loan; (b) Loan Costs with respect to the HSI Loan; and (c) HSI 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 Unamortized Balance; (b) Lender Fees with respect to the
Replacement Loan; and (c) Loan Costs with respect to the Replacement Loan The Loan Balance shall be
reduced by any Partial Prepayments that have been made by CRC to Developer, even if the HSI Lender has
not yet applied any such Partial Prepayments to reduce the outstanding principal balance of the HSI Loan.
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Loan Costs shall mean the actual, out -of- pocket costs incurred by Developer to close the HSI 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 HSI 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.
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, June 1, 2011; 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 HSI Loan Closing Date: and (b) ending on
August 31, 2011.
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the Hanover
Square Improvements, 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 HSI 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 Hanover
Square Improvements, 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.
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
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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 Hanover Square Improvements.
Surviving Supplier Obligations shall mean obligations of the Supplier under the HSI Acquisition Agreement
(other than the obligations specified in the Warranties) that survive the acquisition and installation by Developer
of the Hanover Square Improvements.
Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon, the Hanover Square Improvements or any interest therein; or (b) any granting of a security
interest in the Hanover Square Improvements, other than to the Lender
Tri -Party Agreement shall mean a Tri -Party Agreement (Hanover Square Improvements) in the form
reasonably agreed to by Developer, CRC, and the HSI Lender.
Unamortized Balance shall mean the amount of the Loan Balance on the maturity date of the HSI 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
mean the amount of the Loan Balance on the maturity of such prior Replacement Loan.
IPWarranties shall mean the warranties specified in the HSI Specifications to be obtained in connection with the
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acquisition and installation of the Hanover Square Improvements, which warranties shall run in favor of CRC
2. General Obligations.
(a) HSI Loan and Acquisition. Subject to the terms and conditions of this Contract
(i) Developer shall: (A) close the HSI Loan, including executing and
delivering the HSI Loan Documents; (B) after the HSI Loan Closing. acquire
(and install, as applicable) the Hanover Square Improvements and the
Warranties in accordance with the HSI 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 HSI Loan shall be used only to finance the
Aggregate HSI Costs; provided that, if Developer obtains the Replacement
Loan, then the proceeds of the Replacement Loan may be used to refinance
the Unamortized Balance
(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.
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(c) Hanover Square Improvements 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 Hanover Square Improvements 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 HSI Loan Closing Date shall be established mutually by CRC and Developer. The
HSI Loan Closing shall take place at the office of the HSI Lender, or at such other place as CRC and Developer
mutually agree.
4. Loan Closing Documents. At the HSI Loan Closing, CRC and /or Developer, as applicable, shall
execute and deliver the following documents:
(a)
the HSI Loan Documents;
(b) the Tri -Party Agreement;
(c) copies of such resolutions, consents, authorizations, and other evidence as CRC or
Developer, as applicable, or the HSI Lender reasonably may request to establish that: (i) the
persons executing and delivering this Contract and the foregoing documents are empowered
and authorized by all necessary action of CRC or Developer, as applicable; and (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 HSI Lender reasonably may request in connection with the HSI Loan
Closing.
5. Conditions of Performance.
(a) Developer Conditions. The obligations of Developer with respect to proceeding with
the HSI 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 HSI Loan Documents and the terms and conditions of the HSI
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 HSI Loan
Closing and the payment of the Purchase Price shall be subject to satisfaction, or waiver in
writing, of the following:
(i) CRC, exercising commercially reasonable discretion, shall have
approved the HSI Loan Documents and the terms and conditions of the HSI
Loan;
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(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 the 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 Tn -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 HSI Acquisition
Agreement, Developer shall: (A) be, and continue to be, the lawful owner of the Hanover
Square Improvements; and (B) have, and continue to have, good and marketable title to the
Hanover Square Improvements, 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 Hanover Square Improvements is on file in any public office
7. Change Orders. If CRC desires to make a change to the HSI 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 HSI Costs; and (b) that, if
implementing the Change Order Request would increase the HSI Costs, then CRC shall pay the amount of
such increase. So long as CRC agrees to pay any increase in the HSI 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 HSI
Acquisition Agreement; and (b) with respect to items of Hanover Square Improvements, title of which has not
been transferred to Developer.
8. Acquisition of Hanover Square Improvements.
(a) Acquisition Agreement. Developer shall: (i) enter into the HSI Acquisition Agreement.
(ii) comply with all of its obligations under the HSI Acquisition Agreement; (iii) keep the HSI
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Acquisition Agreement in full force and effect, without any default by Developer thereunder;
(iv) not amend or modify the HSI 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 HSI Acquisition Agreement; and (v) enforce the
terms and conditions of the HSI 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 HSI 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 Hanover Square Improvements, Developer shall collaterally assign the HSI
Acquisition Agreement to CRC.
(b) Acquisition. Developer shall: (i) acquire title to, and install, all of the Hanover Square
Improvements in accordance with the HSI Acquisition Agreement, the HSI Schedule, and the
HSI 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 HSI Costs exceed the proceeds of the HSI 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 and installed the Hanover Square
Improvements and obtained (and delivered to CRC) the Warranties, CRC shall check the
Hanover Square Improvements and the Warranties against the HSI Specifications. If CRC
determines that the Hanover Square Improvements and /or the Warranties do not conform to
the HSI 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 Hanover Square Improvements
and the Warranties conform to the HSI Specifications (reflecting any Change Orders), CRC
shall execute a statement in favor of Developer stating that Developer has: (i) acquired and
installed the Hanover Square Improvements, and obtained (and delivered to CRC) the
Warranties, in accordance with the HSI Specifications (reflecting any Change Orders); and
(ii) no further obligations with respect to the Hanover Square Improvements 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, supply, and /or installation
of the Hanover Square Improvements; 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, supplier, and /or installer, as applicable, to honor
the Warranties.
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9. Acquisition of Hanover Square Improvements- Payment.
• (a) Payment Period 1
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(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
Period 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
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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.
(iv) Notwithstanding anything to the contrary set forth in this Contract, the
principal portion of Payment Period 2 Installments is specified in the
amortization schedule attached hereto as Exhibit F. Each of Developer and
CRC acknowledges that the interest portion of the Payment
Period 2 Installments shall continue to fluctuate based on any changes in the
Applicable Libor Interest Rate. If the Extension Option is exercised, then a
new principal amortization table shall be prepared and agreed to by the
parties.
(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) Closing Payment. Subject to the exercise by CRC of the Full 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 Hanover Square Improvements- 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
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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. HSI Closing. On the HSI Closing Date, Developer shall transfer to CRC title to the Hanover Square
Improvements. In connection with such transfer: (a) CRC shall pay either the Closing Payment or the Full
Prepayment Price, as applicable; and (b) Developer shall deliver to CRC a fully executed bill of sale with full
warranties of title transferring the Hanover Square Improvements to CRC free of all liens, security interests,
and equipment leaseholds, which bill of sale shall be in the form attached hereto as Exhibit E.
12. Options.
(a) Fixed Rate. So long as: (i) there is no continuing Event of Default by CRC hereunder:
(ii) CRC has not: (A) defaulted under the Tri -Party Agreement or the Collateral Assignment
beyond applicable cure periods; or (B) taken any other action; the result of which is that
Developer no longer has the right to exercise the Fixed Rate Option; and (iii) the Fixed Rate
Option remains available 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 Replacement 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; (ii) 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
HSI Loan that Developer or its finance professional has identified as possible substitutions for
the Replacement Loan. If Developer obtains the Replacement Loan, then: (i) at the closing
with respect thereto: (A) Developer and the Replacement Lender shall execute the
Replacement Loan Documents; and (B) CRC, Developer, and the Replacement Lender shall
execute the Replacement Tri -Party Agreement; and (ii) if Developer (as opposed to CRC)
obtained the Replacement Loan, CRC shall pay to Developer a fee in the amount of 1% of the
Unamortized Balance.
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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 HSI 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 and
installation of the Hanover Square Improvements in accordance with this Contract and the HSI
Acquisition Agreement; or (iii) the sale of the Hanover Square Improvements to CRC in
accordance with this Contract.
(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 and installation of the Hanover Square Improvements in accordance with this
Contract and the HSI Acquisition Agreement; and /or (Hi) the sale of the Hanover Square
Improvements 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 Hanover Square Improvements free from any
and all liens, claims, security interests, encumbrances, and restrictions, except for this
Contract; and (ii) defend the Hanover Square Improvements 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 and Records; and (H) 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
Hanover Square Improvements 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
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percentage of ownership in Developer, if the effect of such change is that Developer no longer
is controlled by, or under common control with, two out of three of Bruce Cordingley, Gerald
Pedigo, and Phillip Stoffregen; or (iv) fail to promptly notify CRC in writing of any change in the
members of Developer or the percentage of ownership in Developer.
(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,
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.
(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 Hanover Square Improvements, or any part thereof. If any mechanic's,
supplier's, or similar lien is filed against the Hanover Square Improvements, 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 Hanover Square Improvements.
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 HSI
Acquisition Agreement and /or the rights of Developer thereunder; and /or(ii) the Hanover Square Improvements
and /or the interest of 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 comply 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
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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 HSI Acquisition
Agreement, and the continuance of such failure beyond any applicable cure period specified
in the HSI 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
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 Hanover Square Improvements, 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 Hanover Square Improvements, whether such
security interest or lien is superior, equal, or junior to the security interest or lien held therein
by the Lender.
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(I) The making or filing of any levy or execution on, or any seizure, attachment, or
garnishment of, any portion of the Hanover Square Improvements 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
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: (i) 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: (i) right or remedy shall be deemed to be, or construed, as.
exclusive of any other right or remedy hereunder, at law, or in equity; or (ii) failure to exercise
any right or remedy shall operate to prevent the subsequent exercise of such right or remedy.
(c) Damages. The non - defaulting party may recover from the defaulting party all
damages that the non - defaulting party incurs: (i) by reason of any Event of Default by 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 and installation by CRC of the Hanover Square Improvements.
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 30 West Main Street. Suite 220, Carmel.
Indiana 46032, Facsimile: 317 - 844 -3498, Attn: Les Olds, with a copy to: Karl P. Haas, Esq . Wallack Somers
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& 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
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 and installation by
CRC of the Hanover Square Improvements.
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(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 (B) 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
cause that is not within the reasonable control of such party (including, without limitation,
inclement weather, the unavailability of materials, equipment, services or labor, and 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 satisfaction 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.
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DEVELOPER:
VILLAGE FINANCIAL, LLC
By: /0.g 7'I/ - >A4c-.
Dolores M. Krohne, Senior Vice- President
CRC:
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
William Hammer, President
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(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 (B) 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 actor omission of the other party; or (ii) any other
cause that is not within the reasonable control of such party (including, without limitation.
inclement weather, the unavailability of materials, equipment, services or labor, and 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 satisfaction 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.
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DEVELOPER:
VILLAGE FINANCIAL, LLC
By:
Dolores M. Krohne, Senior Vice- President
CRC:
THE CITY OF
CARMEL
REDEV.LO' SENT Cc MISSION
By:
William Ha r President
0
Index to Exhibits
Exhibit A Delineation of Hanover Square on Parcel 5
Exhibit B HSI Schedule /HSI Specifications
Exhibit C Terms and conditions for Fixed Rate Option
Exhibit D Terms and conditions for Extension Option
Exhibit E Form of Bill of Sale
Exhibit F Principal Amortization Schedule
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EXHIBIT B
HSI Schedule /HSI Specifications
PARCEL 5
Carmel City Center
Installment Purchase Contract No.
Smock Fansler
Hanover Square Fountain
Description of Materials
Purchase and installation of the fountain.
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050611, 1029,L2,Installment Contract - Hanover Square v3 wpd
EXHIBIT C
Terms and conditions of Fixed Rate Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master Loan
Program Agreement. Accordingly, all capitalized terms used but not defined in this 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 HSI Loan constitutes a Developer Loan.
Notwithstanding anything in the Agreement or any Developer Loan Documents to the contrary, CRC, not
later than two business days prior to each Advance Date, may elect a fixed rate for a period not to exceed
five years at a rate quoted by the Lender at such time and based on their applicable five year SWAP
equivalent. In the event 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 during the period: (a) commencing on the first day of the first full calendar month
following the first anniversary of the Advance Date; and (b) ending on the date that is one
year thereafter: 2% of the amount of the prepayment; and
If prepaid during the period: (a) commencing on the first day of the first 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.
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EXHIBIT D
Terms and Conditions for Extension Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master Loan
Program Agreement. Accordingly, all capitalized terms used but not defined in this 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 HSI Loan constitutes a Developer Loan.
Not later than 180 days prior 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 an extension in accordance with the Lender's then - applicable underwriting standards and
will notify the respective Qualified Developer and the CRC whether such extension, in the sole discretion of
the Lender, shall be granted not later than 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.
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EXHIBIT E
FORM
BILL OF SALE
Village Financial, 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 right to convey the Equipment; (b) the Equipment is sold to Purchaser
free and clear of all liens, security interests, and encumbrances; (c) Seller shall warrant and defend title to
the Equipment against any and all 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) he
or she is authorized to execute and deliver this Bill of Sale for and on behalf of Seller; (b) Seller has full
capacity, power, and authority to enter into and carry out its obligations under this Bill of Sale; and (c) this
Bill of Sale has been authorized by all necessary action of Seller.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale on this day of
050611, 1029,L2,Installment Contract- Hanover Square v3 wpd
-22-
VILLAGE FINANCIAL, LLC
By:
Printed.
Title
Index to Exhibits
0 Exhibit A Delineation of Hanover Square on Parcel 5
Exhibit B HSI Schedule /HSI Specifications
Exhibit C Terms and conditions for Fixed Rate Option
Exhibit D Terms and conditions for Extension Option
Exhibit E Form of Bill of Sale
Exhibit F Principal Amortization Schedule
o
0
050611;1029;L2,Installment Contract - Hanover Square v3 wpd
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EXHIBIT B
HSI Schedule /HSI Specifications
PARCEL 5
Carmel City Center
Installment Purchase Contract No.
Smock Fansler
Hanover Square Fountain
Description of Materials
Purchase and installation of the fountain.
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050611, 1029,L2,Installment Contract- Hanover Square v3 wpd
EXHIBIT C
Terms and conditions of Fixed Rate Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master Loan
Program Agreement. Accordingly, all capitalized terms used but not defined in this 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 HSI Loan constitutes a Developer Loan.
Notwithstanding anything in the Agreement or any Developer Loan Documents to the contrary, CRC, not
later than two business days prior to each Advance Date, may elect a fixed rate for a period not to exceed
five years at a rate quoted by the Lender at such time and based on their applicable five year SWAP
equivalent. In the event 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 during the period: (a) commencing on the first day of the first full calendar month
following the first anniversary of the Advance Date; and (b) ending on the date that is one
year thereafter: 2% of the amount of the prepayment; and
If prepaid during the period: (a) commencing on the first day of the first 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.
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050611,1029, L2,Installment Contract - Hanover Square.v3.wpd
EXHIBIT D
Terms and Conditions for Extension Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master Loan
Program Agreement. Accordingly, all capitalized terms used but not defined in this 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 HSI Loan constitutes a Developer Loan.
Not later than 180 days prior 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 an extension in accordance with the Lender's then - applicable underwriting standards and
will notify the respective Qualified Developer and the CRC whether such extension, in the sole discretion of
the Lender, shall be granted not later than 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.
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050611,1029,L2,Installment Contract- Hanover Square v3 wpd
EXHIBIT E
FORM
BILL OF SALE
Village Financial, 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 right to convey the Equipment; (b) the Equipment is sold to Purchaser
free and clear of all liens, security interests, and encumbrances; (c) Seller shall warrant and defend title to
the Equipment against any and all 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) he
or she is authorized to execute and deliver this Bill of Sale for and on behalf of Seller; (b) Seller has full
capacity, power, and authority to enter into and carry out its obligations under this Bill of Sale; and (c) this
Bill of Sale has been authorized by all necessary action of Seller.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale on this day of
-22-
050611,1029,L2;Installment Contract- Hanover Square v3 wpd
VILLAGE FINANCIAL, LLC
By:
Printed:
Title:
e
s
$341,305.61
Loan Principal Amortization Schedule
Hanover Square Improvements
Payment
No. Payment Date Principal
1. 9/1/11
$ 2,579.43
2. 12/1/2011
2,610.06
3. 3/1/2012
2,641.05
4. 6/1/2012
2,672.42
5. 9/1/2012
2,704.15
6. 12/1/2012
2,736.26
7. 3/1/2013
2,768.76
8. 6/1/2013
2,801.64
9. 9/1/2013
2,834.91
10. 12/1/2013
2,868.57
11. 3/1/2014
2,902.63
12. 6/1/2014
2,937.10
13. 9/1/2014
2,971.98
14. 12/1/2014
3,007.27
15. 3/1/2015
3,042.98
16. 6/1/2015
3,079.12
17. 9/1/2015
3,115.68
18. 12/1/2015
3,152.68
19. 3/1/2016
3,190.12
20. 6/1/2016 286,688.80