HomeMy WebLinkAboutVillage Financial - PAC Air Handler Equipment - $1,005,000/20100
INSTALLMENT PURCHASE CONTRACT
(PAC Air Handler Equipment)
This Installment Purchase Contract (PAC Air Handler Equipment) (the "Contract "), by and
between Village Financial, LLC (the "Developer") , and The City of Carmel Redevelopment Commission
( "CRC "), is executed this 28th day of January, 2010.
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
Air Handler Equipment 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 Applied Amounts shall mean, at any given time, the aggregate amount of that portion of the
Installment Payments that, by the terms of this Contract and the Loan Documents, is required to be applied to
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).
Aggregate Air Handler Equipment Costs shall mean the sum of: (a) the Air Handler Equipment Costs; (b) the
Lender Fees for the Air Handler Equipment Loan; and (c) the Loan Costs for the Air Handler Equipment Loan,
Air Handler Equipment shall mean an estimated $1,005,000.00 of air handler equipment for use in the
operation of the PAC. The Air Handler Equipment is described in the Air Handler Equipment Specifications.
Air Handler Equipment Acquisition Agreement shall mean an agreement entered into by Developer and the
Supplier, which agreement shall: (a) be consistent with the Air Handler Equipment Schedule and the Air Handler
Equipment 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.
Air Handler Equipment Closing Date shall mean the date of the closing with respect to the transfer of the Air
Handler Equipment. If such closing has not occurred at such time as Payment Period 2 expires, then the Air
Handler Equipment Closing Date shall be the date on which Payment Period 2 expires.
Air Handler Equipment Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire
and install (or cause the installation of) the Air Handler Equipment in accordance with this Contract and the Air
Handler Equipment Acquisition Agreement.
Air Handler Equipment Lender shall mean the financial institution making the Air Handler Equipment Loan.
Air Handler Equipment Loan shall mean a loan to Developer, the proceeds of which shall be used to finance
the Aggregate Air Handler Equipment Costs, which loan shall: (a) have a term of at least seven years; and
(b) provide for: (i) interest at a rate accepted by CRC; (ii) interest only payments during Payment Period 1;
(iii) amortization of the Loan Balance over the Amortization Period at the Loan Rate; (iv) quarterly payments
that change if and when the Loan Rate changes, subject to the exercise of the Fixed Rate Option; and (v) the
Extension Option.
Air Handler Equipment Loan Closing shall mean the closing with respect to the Air Handler Equipment
Loan.
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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.
Executive Director shall mean the Executive Director of CRC (currently Les Olds).
Extension Option shall mean the option to extend the term of the Air Handler Equipment Loan for a period
of five years, which option may be exercised on the terms and conditions set forth in Exhibit E.
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 D.
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) Air Handler Equipment 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 Air Handler Equipment; in
advance of the expiration of Payment Period 2 by paying the Full Prepayment Price.
Full Prepayment Price shall mean the sum of: (a) the Loan Balance on the Full Prepayment Closing Date; plus
(b) interest thereon that has: (i) accrued at the Loan Rate; and (ii) not been paid prior to the Full Prepayment
Closing Date (stated alternatively, interest that has accrued, but not been paid, as part of the Initial Payment
and 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.
Initial Payment shall mean a payment from CRC to Developer, the amount of which shall be equal to: (a) the
interest payable on the Loan Balance at the Loan Rate from the Air Handler Equipment Loan Closing Date to
the first occurring Payment Due Date thereafter; plus (b) the Administrative Payment, prorated based on the
actual number of days during the period commencing on the Air Handler Equipment Loan Closing Date and
ending on the first occurring Payment Due Date thereafter.
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 Air Handler Equipment 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.
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Loan shall mean the Air Handler Equipment Loan or the Replacement Loan, as applicable.
Loan Balance shall mean that portion of the outstanding principal balance of the Air Handler Equipment Loan
disbursed to pay: (a) Lender Fees with respect to the Air Handler Equipment Loan; (b) Loan Costs with respect
to the Air Handler Equipment Loan; and (c) Air Handler Equipment Costs. If the Replacement Loan is obtained,
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: (a) any Partial Prepayments that have been made
by CRC to Developer, even if the Lender has not yet applied any such Partial Prepayments to reduce the
outstanding principal balance of the Loan; and (b) the Aggregate Applied Amounts.
Loan Costs shall mean the actual, out -of- pocket costs incurred by Developer to close the Air Handler
Equipment 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 Air Handler Equipment 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) the projected Initial Payment; or (b) a projected
Installment Payment; set forth in a Projection Notice either exceeded or fell short of the amount of the: (a) Initial
Payment to which Developer actually was entitled; or (b) 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: (i) the Initial
Payment; or (ii) an Installment Payment; set forth in a specified Projection Notice either exceeded or fell short
of the amount of the: (i) Initial Payment to which Developer actually was entitled; or (ii) 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 a world -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 the Initial Payment and /or an Installment Payment.
Payment Due Date shall mean each April 7, July 7, October 7, and January 7 during Payment Period 1 and
Payment Period 2.
Payment Period 1 shall mean the period: (a) beginning on the Air Handler Equipment Loan Closing Date; and
(b) ending on January 7, 2011.
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the Air Handler
Equipment, 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 January 8, 2011; and (b) ending on the maturity
date of the Air Handler Equipment Loan, as the same may be extended by the exercise of the Extension Option;
provided that, if Developer obtains the Replacement Loan, then Payment Period 2 shall end on the maturity
date of the final Replacement Loan.
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Payment Period 2 Installments shall mean quarterly installment payments for the purchase of the Air Handler
Equipment, 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 Initial Payment or the next due Installment Payment, as applicable.
Purchase Price shall mean the sum of: (a) the Initial Payment; plus (b) all Installment Payments; plus (c) 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
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 Air Handler Equipment.
Surviving Supplier Obligations shall mean obligations of the Supplier under the Air Handler Equipment
Acquisition Agreement (other than the obligations specified in the Warranties) that survive the acquisition and
installation by Developer of the Air Handler Equipment.
Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon, the Air Handler Equipment or any interest therein; or (b) any granting of a security interest
in the Air Handler Equipment.
Tri -Party Agreement shall mean a Tri -Party Agreement (PAC Air Handler Equipment) in the form agreed to
by the parties.
Unamortized Balance shall mean the amount of the Loan Balance on the maturity date of the Air Handler
Equipment 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 Air Handler Equipment Specifications to be obtained in
connection with the acquisition and installation of the Air Handler Equipment, which warranties shall run in favor
of CRC.
2. General Obligations.
(a) Air Handler Equipment Loan and Acquisition. Subject to the terms and conditions of
this Contract:
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(i) Developer shall: (A) close the Air Handler Equipment Loan, including
executing and delivering the Air Handler Equipment Loan Documents;
(B) after the Air Handler Equipment Loan Closing: (1) acquire the Air Handler
Equipment and the Warranties in accordance with the Air Handler Equipment
Acquisition Agreement; and (2) install (or cause the installation of) the Air
Handler Equipment; (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 Air Handler Equipment Loan shall be used only
to finance the Aggregate Air Handler Equipment Costs; provided that, if
Developer obtains the Replacement Loan, then the proceeds of the
Replacement Loan may be used to refinance the Unamortized Balance.
(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) Air Handler Equipment 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 Air
Handler Equipment 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 Air Handler Equipment Loan Closing Date shall be established mutually by CRC
and Developer. The Air Handler Equipment Loan Closing shall take place at the office of the Air Handler
Equipment Lender, or at such other place as CRC and Developer mutually agree.
4. Loan Closing Documents. At the Air Handler Equipment Loan Closing, CRC and /or Developer, as
applicable, shall execute and deliver the following documents:
(a) the Air Handler Equipment 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 Air Handler Equipment Lender reasonably may request to
establish that: (i) the persons executing and delivering this Contract and the foregoing
documents are empowered and authorized by all necessary action of CRC or Developer, as
applicable; and (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 Air Handler Equipment Lender reasonably may request in connection with
the Air Handler Equipment Loan Closing.
5. Conditions of Performance.
(a) Developer Conditions. The obligations of Developer with respect to proceeding with
the Air Handler Equipment Loan Closing shall be subject to the satisfaction, or waiver in
writing, of the following:
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(i) Developer, exercising commercially reasonable discretion, shall have
approved the Air Handler Equipment Loan Documents and the terms and
conditions of the Air Handler Equipment 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 Air
Handler Equipment 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 Air Handler Equipment Loan Documents and the terms and
conditions of the Air Handler Equipment 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 -Parry 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 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 Air Handler Equipment
Acquisition Agreement, Developer shall: (A) be, and continue to be, the lawful owner of the Air
Handler Equipment; and (B) have, and continue to have, good and marketable title to the Air
Handler Equipment, free and clear of all liens, claims, security interests, encumbrances, and
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restrictions, except for this Contract; and (vii) no financing statement covering all or any portion
of the Air Handler Equipment is on file in any public office.
7. Change Orders. If CRC desires to make a change to the Air Handler Equipment 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 Air Handler
Equipment Costs; and (b) that, if implementing the Change Order Request would increase the Air Handler
Equipment Costs, then CRC shall pay the amount of such increase. So long as CRC agrees to pay any
increase in the Air Handler Equipment 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 Air Handler Equipment Acquisition
Agreement; and (b) with respect to items of Air Handler Equipment, title of which has not been transferred to
Developer.
8. Acquisition of Air Handler Equipment.
(a) Acquisition Agreement. Developer shall: (i) enter into the Air Handler Equipment
Acquisition Agreement; (ii) comply with all of its obligations under the Air Handler Equipment
Acquisition Agreement; (iii) keep the Air Handler Equipment Acquisition Agreement in full force
and effect, without any default by Developer thereunder; (iv) not amend or modify the Air
Handler Equipment 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 Air Handler Equipment Acquisition Agreement; and
(v) enforce the terms and conditions of the Air Handler Equipment 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 Air Handler Equipment 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 Air Handler
Equipment, Developer shall collaterally assign the Air Handler Equipment Acquisition
Agreement to CRC.
(b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation
of), all of the Air Handler Equipment in accordance with the Air Handler Equipment Acquisition
Agreement, the Air Handler Equipment Schedule, and the Air Handler Equipment
Specifications (reflecting any Change Orders); and (ii) obtain (and deliver to CRC) all of the
Warranties; provided that, if, for any reason, the Warranties by their terms do not run in favor
of CRC, then, in addition to delivering the Warranties to CRC, Developer shall assign the
Warranties to CRC. If the Aggregate Air Handler Equipment Costs exceed the proceeds of
the Air Handler Equipment 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 (or caused the
installation of) the Air Handler Equipment and obtained (and delivered to CRC) the Warranties,
CRC shall check the Air Handler Equipment and the Warranties against the Air Handler
Equipment Specifications. If CRC determines that the Air Handler Equipment and/or the
Warranties do not conform to the Air Handier Equipment Specifications (reflecting any Change
Orders), then: (i) CRC shall provide to Developer written notice thereof; and (ii) Developer shall
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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 Air Handler Equipment and the
Warranties conform to the Air Handler Equipment Specifications (reflecting any Change
Orders), CRC shall execute a statement in favor of Developer stating that Developer has:
(i) acquired and installed (or caused the installation of) the Air Handler Equipment, and
obtained (and delivered to CRC) the Warranties, in accordance with the Air Handler
Equipment Specifications (reflecting any Change Orders); and (ii) no further obligations with
respect to the Air Handler Equipment 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 Air
Handler Equipment; 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.
9. Acquisition of Air Handler Equipment - Payment.
(a) Payment Period 1.
(i) During Payment Period 1, CRC shall pay the Initial Payment and 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 the Initial Payment or 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 Air Handler
Equipment Loan Closing Date (in the case of the Projection Notice for the
Initial Payment), and within the period between the first and fifth business
days of each March, June, September, and December 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.
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(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 March,
June, September, and December 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
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: (i) for the Initial Payment; or (ii) 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 Air Handler Equipment- Prepayment.
(a) Payment Period 1. CRC may exercise the Full Prepayment Option, to be effective at
any time during Payment Period 1, by delivery of the Full Prepayment Notice, Within ten days
after receipt by Developer of the Full Prepayment Notice, CRC and Developer, each acting
reasonably, shall agree on the Full Prepayment Closing Date.
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(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. Air Handler Equipment Closing. On the Air Handler Equipment Closing Date, Developer shall
transfer to CRC title to the Air Handler Equipment. 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 Air Handler Equipment to CRC free of all liens,
security interests, and equipment leaseholds, which bill of sale shall be in a form agreed to by the parties in the
exercise of their reasonable discretion.
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 (8) 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
012710;0959 :L2:Installment Contract -PAC Air Handlers.v2.wpd
Loan cannot be obtained, then such reports shall set forth any alternate re- financings for the
Air Handler Equipment 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.
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 Air Handler Equipment
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 Air Handler Equipment in accordance with this Contract and the Air Handler Equipment
Acquisition Agreement; or (iii) the sale of the Air Handler Equipment 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 of the Air Handler Equipment in accordance with this Contract and the Air Handler
Equipment Acquisition Agreement; and /or (iii) the sale of the Air Handler Equipment 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 Air Handler Equipment free from any and all
liens, claims, security interests, encumbrances, and restrictions, except for this Contract; and
(ii) defend the Air Handler Equipment 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.
(() 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 (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.
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(b) Developer shall not: (1) file any financing statement covering all or any portion of the
Air Handler Equipment 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 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 Air Handler Equipment, or any part thereof. If any mechanic's, supplier's,
or similar lien is filed against the Air Handler Equipment, or any part thereof, for work claimed to have been
done for, or materials claimed to have been furnished to, either Developer or CRC, then Developer or CRC,
respectively, shall cause such mechanic's, supplier's, or similar lien to be discharged of record within 30 days
after notice of the 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 Air Handler
Equipment.
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 Air
Handler Equipment Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the Air Handler
Equipment 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 the Initial Payment or any Installment Payment when due;
provided that, in the case of the first two such failures in any given 12 month period, such
012910;0953:L2:Installment Contract-PAC Air Handlers.v2.wpd
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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 the Initial Payment, 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 Initial Payment, 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 Air Handler
Equipment Acquisition Agreement, and the continuance of such failure beyond any applicable
cure period specified in the Air Handler Equipment 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 the Initial Payment or 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.
Q) Any portion of the Air Handler Equipment, 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,
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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 Air Handler Equipment, whether such security
interest or lien is superior, equal, or junior to the security interest or lien held therein by the
Lender.
(I) The making or filing of any levy or execution on, or any seizure, attachment, or
garnishment of, any portion of the Air Handler Equipment 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 the Initial
Payment or 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
012710.0959 :L2:Installment Contract-PAC Air Handters.v2.wpd
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from the other party, and the obligation of the defaulting party to pay such amounts shall
survive the acquisition by CRC of the Air Handler Equipment.
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 3rd 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. The Initial Payment and 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 -Parry
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
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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 Air
Handler Equipment.
(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.
O 2716.4959,L2,Instaliment Contract -PAC Air Handlers.v2.wpd
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VILLAGE FINANCIAL, LLC
By: 442-61-u- >n �7 �
Printed: boc-o2&s !/ m. A-retVitu61
Title: cSS✓ci '04 / S,O,
jv1
THE CITY OF CARMEL
REDEVELO '�MENT COM ION
By:
Ronald E. Carter, President
Index to Exhibits
Exhibit A Depiction of PAC Site
Exhibit B Air Handler Equipment Schedule
Exhibit C Air Handler Equipment Specifications
Exhibit D Terms and conditions for Fixed Rate Option
Exhibit E Terms and conditions for Extension Option
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012710,0959;1- 2,Installmern Conlract•PAC Air Handlers v2•wpd
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EXHIBITS B & C
PARCEL 7A
Regional Performing Arts Center
Installment Purchase Contract No
PAC Air Handler Equipment
Poynter Sheet Metal, Inc.
Air Handlers, Fans & VAV Mixing Boxes
Project Manual
#25310 - CSO Architects, #05150 - L'Acquis Engineering
Package #4 - Materials as outlined in sections:
23- 34 -16, 23 -36 -000, 23- 37 -13, 23- 73 -23, 23- 82 -00,
23- 82 -01, 23- 84 -14, 23 -21 -23
Description of Materials
Item no. Description of Work Scheduled Value
9 Air Handlers $ 550,000.00
10 Louvers $ 27,000.00
11 Grilles /Registers /Diffusers $ 62,200.00
12 Fire Dampers $ 23,200.00
13 Volume Dampers $ 6,600.00
14 Sound Attenuators $ 66,000.00
15 Fans $ 192,000.00
16 Chimney Fans $ 8,000.00
17 VAV Boxes $ 70,000.00
Total $ 1,005,000.00
The Air Handler Equipment will be acquired in accordance with the contract
between CRC and Poynter Sheet Metal, Inc., as assigned to Developer.
Exhibit
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, Developer constitutes a Qualified Developer, and the Air Handler
Equipment Loan constitutes a Developer Loan.
CRC may exercise the Fixed Rate Option by delivery of written notice to Lender prior to the
applicable Advance Date; provided that Lender acknowledges that CRC has exercised the Fixed
Rate Option with respect to the Advance Amount to be deposited on the first Advance Date.
Notwithstanding anything in this Agreement or any Developer Loan Documents to the contrary:
(a) on the first Advance Date; and (b) on the second Advance Date, if CRC has exercised the
Fixed Rate Option with respect to the Advance Amount to be deposited on the second Advance
Date; CRC shall execute a Hedge Agreement (as defined below) in a notional amount equal to the
amount of the applicable Advance Amount, which Hedge Agreement shall provide for an interest
rate swap for the purpose of hedging the Qualified Developers' exposure to fluctuations in interest
rates applicable to Developer Loans.
For purposes of this Exhibit, "Hedge Agreement" shall mean: (a) an agreement (including terms
and conditions incorporated by reference therein and all schedules thereto and confirmations
thereof) in any notional principal amount (which notional amount may reduce periodically under
the agreement) from time to time and at any time executed and delivered by CRC and Lender that
provides for an interest rate, currency, equity, credit or commodity swap, cap, floor or collar, sport
or foreign exchange transaction, cross - currency rate swap, currency option, any combination
thereof, or option with respect to any of the foregoing or any similar transactions, for the purpose
of hedging the Qualified Developers' exposure to fluctuations in interest rates, exchange rates,
currency, stock, portfolio or loan valuations or commodity prices (including any such or similar
agreement or transaction entered into by Lender in connection with any other agreement or
transaction between CRC and Lender); and (b) a master agreement for any of the foregoing
agreements referenced in (a); together with all supplements."
The parties acknowledge that the Fixed Rate Option has been exercised with respect to the
Air Handler Equipment Loan
Exhibit 5-
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, 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, Developer constitutes a Qualified Developer, and the Air Handler
Equipment Loan constitutes a Developer Loan.
Not later than one hundred twenty (120) days prior to the end of the term of any Developer Loan,
CRC and the applicable Qualified Developer may request an extension of the term of such
Developer Loan. Lender shall review and consider such request for an extension in accordance
with Lender's then - applicable underwriting standards, and will notify the CRC and such Qualified
Developer whether such extension shall be granted not later than sixty (60) days prior to the end
of the current term of the Developer Loan.
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