HomeMy WebLinkAboutCarmel Theater Development Co. - PAC Carpet, Tile and Access Flooring - $10,000,000/2010INSTALLMENT PURCHASE CONTRACT
Carpet, Tile, and Access Flooring
This Installment Purchase Contract (Carpet, Tile, and Access Flooring) (the "Contract "), by
and between Carmel Theater Development Company, LC(the "Deve, per "), and The City of Carmel
Redevelopment Commission ( "CRC "), is executed this to day of , 2010.
1. Definitions, Capitalized terms used in this Contract shall have the meanings ascribed to such terms
in this Section.
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 CTA Flooring Disbursement Balance or the Replacement Loan Balance, as applicable, over
the Amortization Period.
Aggregate CTA Flooring Costs shall mean the sum of: (a) the CTA Flooring Costs; (b) the Lender Fees in
connection with the CTA Flooring Disbursement; and (c) the Loan Costs for the CTA Flooring Disbursement.
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 acquisition and installation of the
CTA Flooring in accordance with this Contract and the CTA Flooring 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 CTA Flooring 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 CTA Flooring
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 CTA Flooring Disbursement Balance or the
Replacement Loan Balance, as applicable, as of the expiration of Payment Period 2; plus (b) interest thereon
that has: (i) accrued at the Loan Rate; and (ii) not been paid prior to the expiration of Payment Period 2 (stated
alternatively, interest that has accrued, but not been paid, as part of the Installment Payments).
CTA Flooring shall mean $443,785.00 of carpeting, tile, and access flooring for use in the PAC. The CTA
Flooring is described in the CTA Flooring Specifications.
CTA Flooring Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier,
which agreement shall: (a) be consistent with the CTA Flooring Schedule and the CTA Flooring 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.
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CTA Flooring Closing Date shall mean the date of the closing with respect to the transfer of the CTA
Flooring. If such closing has not occurred at such time as Payment Period 2 expires, then the CTA Flooring
Closing Date shall be the date on which Payment Period 2 expires.
CTA Flooring Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire and install
(or cause the installation of) the CTA Flooring in accordance with this Contract and the CTA Flooring
Acquisition Agreement.
CTA Flooring Disbursement shall mean a disbursement by NBI of proceeds of the NB! Loan for the
purposes of funding the Aggregate CTA Flooring Costs.
CTA Flooring Disbursement Balance shall mean that portion of the principal balance of the NBI Loan
disbursed to pay the Aggregate CTA Flooring Costs, which portion remains outstanding. The CTA Flooring
Disbursement 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 CTA Flooring Disbursement; and (b) the Aggregate Applied Amounts.
CTA Flooring Disbursement Date shall mean the date of the CTA Flooring Disbursement.
CTA Flooring Schedule shall mean the schedule for the acquisition and installation of the CTA Flooring,
which schedule is attached hereto as Exhibit B.
CTA Flooring Specifications shall mean the specifications for: (a) the CTA Flooring, including specific
identification andlordescriptions of the CTA Flooring; and (b) the warranties from manufacturers and suppliers
to be obtained in connection with the acquisition and installation of the CTA Flooring, which warranties shall:
(i) run in favor of CRC; and (ii) constitute the Warranties. The CTA Flooring Specifications are attached
hereto as Exhibit C.
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 16.
Executive Director shall mean the Executive Director of CRC (currently Les Olds).
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 17(a)), the: (a) date
on which the Full Prepayment Price is to be paid; and (b) CTA Flooring 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 CTA Flooring; in advance
of the expiration of Payment Period 2 by paying the Full Prepayment Price.
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Full Prepayment Price shall mean the sum of: (a) the CTA Flooring Disbursement Balance or the
Replacement Loan Balance, as applicable, on the Full Prepayment Closing Date; plus (b) interest thereon that
has: (i) accrued at the Loan Rate; and ( €1) 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 CTA Flooring Disbursement Balance or the Replacement Loan Balance, as applicable (including, without
limitation and if applicable, the prepayment premium required pursuant to Subsection 4(e) of the NBI Loan
Agreement).
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.
Lender shall mean, as applicable, NBI 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. To the extentthat fees, costs, and expenses are included in Lender
Fees, such fees, costs, and expenses shall not be included in Loan Costs.
Loan shall mean the NBI Loan or the Replacement Loan, as applicable.
Loan Costs shall mean the actual, out -of- pocket costs incurred by Developer: (a) in connection with the NBI
Disbursement; and/or (b) to close 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 NBI Loan Documents or the Replacement Loan Documents.
Loan Rate shall mean the per annum regular (non - default) rate of interest accruing on the CTA Flooring
Disbursement Balance or the Replacement Loan Balance, as applicable, under the Loan Documents.
NBI shall mean The National Bank of Indianapolis.
NBI Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security Agreement
executed by and among Developer, CRC, and NBI, and dated as of February 23rd, 2010, as amended.
NBI Loan shall mean the loan made by NBI to Developer in the original principal amount of $10,000,000.00.
NBI Loan Agreement shall mean that certain Loan Agreement (Equipment and Improvements) executed by
and between Developer and NBI, and dated as of February 23rd, 2010.
NBI Loan Documents shall mean the documents evidencing and securing the NBI Loan, including, without
limitation, the NBI Loan Agreement, the NBI Note, and the NBI Collateral Assignment.
NBI Note shall mean that certain Promissory Note executed by Developer in favor of NBI, and dated
February 23'd, 2010.
NBI Tri -Party Agreement shall mean that certain Tri -Party Agreement executed by and among Developer,
CRC, and NBI, and dated February 23r °, 2010.
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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 month 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 month 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 CTA
Flooring Disbursement or the Replacement Loan, as applicable, which payment is made by CRC in addition
to an Installment Payment.
PAC shall mean a world -class concert hall located on that certain real estate depicted on Exhibit A.
Payment Due Date shall mean the first day of each calendar month during Payment Period 1 and Payment
Period 2.
Payment Period 1 shall mean the period: (a) beginning on the CTA Flooring Disbursement Date; and
(b) ending on March 1, 2012.
Payment Period 1 Installments shall mean monthly installment payments for the purchase of the CTA
Flooring, the amount of which shall be equal to the: (a) Loan Rate; multiplied by (b) the CTA Flooring
Disbursement Balance; and multiplied by (c) 1/12.
Payment Period 2 shall mean the period: (a) beginning on the date immediately following the expiration of
Payment Period 1; and (b) ending on the maturity date of the NBI Loan. If the Replacement Loan is obtained,
then Payment Period 2 shall end on the maturity date of the final Replacement Loan.
Payment Period 2 Installments shall mean monthly installment payments for the purchase of the CTA
Flooring, the amount of which shall be equal to an amount that will amortize the CTA Flooring Disbursement
Balance or the Replacement Loan Balance, as applicable, over the Amortization Period at the Loan Rate.
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 all Installment Payments plus 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) monthly payments that change if and when
the Loan Rate changes.
Replacement 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 Replacement Loan Balance shall be reduced
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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 Replacement Loan;
and (b) the Aggregate Applied Amounts.
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 NBI Tri -Party Agreement, to the extent that the NBI Tri -Party Agreement
applies to the CTA Flooring Disbursement, which agreement shall contain terms and conditions substantially
similar to the NB1 Tri -Party Agreement, modified as necessary to reflect the Replacement Loan.
Supplier shall mean the entity from which Developer will acquire the CTA Flooring.
Surviving Supplier Obligations shall mean obligations of the Supplier under the CTA Flooring Acquisition
Agreement (other than the obligations specified in the Warranties) that survive the acquisition and installation
by Developer of the CTA Flooring.
Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon, the CTA Flooring, or any interest therein; or (b) any granting of a security interest in the
CTA Flooring.
Unamortized Balance shall mean the amount of the CTA Flooring Disbursement Balance on the maturity
date of the NBI Loan; 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 Replacement Loan Balance
on the maturity of such prior Replacement Loan.
Warranties shall mean the warranties specified in the CTA Flooring Specifications to be obtained in
connection with the acquisition and installation of the CTA Flooring, which warranties shall run in favor of CRC.
2. General Obligations.
(a) NBI Loan Disbursement and Acquisition. Subject to the terms and conditions of this
Contract:
(i) Developer shall: (A) obtain an acknowledgment from NBI that NBI
will make the CTA Flooring Disbursement; (B) after the CTA Flooring
Disbursement: (1) acquire the CTA Flooring and the Warranties in
accordance with the CTA Flooring Acquisition Agreement; and (2) install (or
cause the installation of) the CTA Flooring; (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 CTA Flooring Disbursement shall be used only to finance the
Aggregate CTA Flooring Costs. If Developer obtains the Replacement
Loan, then the proceeds of the Replacement Loan may be used to refinance
the Unamortized Balance.
(b) CTA Flooring 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
CTA Flooring 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.
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3. CTA Flooring Disbursement.
(a) Date, The CTA Flooring Disbursement Date shall be established mutually by CRC
and Developer.
(b) Documents. In connection with the CTA Flooring Disbursement, CRC and /or
Developer, as applicable, shall execute and deliver:
(1) copies of such resolutions, consents, authorizations, and other
evidence as CRC or Developer, as applicable, or NBI reasonably may
request to establish that: (A) the persons executing and delivering this
Contract are empowered and authorized by all necessary action of CRC or
Developer, as applicable; and (B) the: (1) execution and delivery of this
Contract; and (2) performance by CRC or Developer, as applicable,
hereunder; have been authorized by CRC or Developer, as applicable; and
(ii) such other customary documents and instruments as CRC or
Developer, as applicable, or NBl reasonably may request.
4. Conditions of Performance.
(a) Developer Conditions. The obligations of Developer with respect to the CTA
Flooring Disbursement shall be subject to the satisfaction, or waiver in writing, of the
following:
(1) Developer, exercising commercially reasonable discretion, shall
have approved the terms and conditions of the CTA Flooring Disbursement;
(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 5(a)
shall be true and accurate in all respects.
(b) CRC Conditions. The obligations of CRC with respect to the CTA Flooring
Disbursement and the payment of the Purchase Price shall be subject to satisfaction, or
waiver in writing, of the following:
(1) CRC, exercising commercially reasonable discretion, shall have
approved the terms and conditions of the CTA Flooring Disbursement;
(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 5(b)
shall be true and accurate In all respects.
5. 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
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Contract, the NBI Tri -Party Agreement, or the NBI 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; and (B) perform its obligations hereunder; (iv) CRC has been
authorized by proper action to: (A) execute and deliver this Contract; and (B) perform its
obligations hereunder; and (v) this Contract, the NBI Tri -Party Agreement, and the NBI
Collateral Assignment are the binding obligations of CRC.
(b) Developer. Developer represents and warrants to CRC that: (1) Developer shall not
enter into any contracts or undertakings that would limit, conflict with, or constitute a breach
of this Contract, the NBI 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; and (B) perform its obligations
hereunder; (iv) Developer has been authorized by proper action to: (A) execute and deliver
this Contract; and (B) perform its obligations hereunder; (v) this Contract, the NBI Tri -Party
Agreement, and the Loan Documents are the legal, valid, and binding obligations of
Developer; (vi) upon acquisition thereof pursuant to the CTA Flooring Acquisition Agreement,
Developer shall have good and marketable title to the CTA Flooring, free and clear of all
liens, claims, security interests, encumbrances, and restrictions, except for this Contract; and
(vii) upon acquisition thereof pursuant to the CTA Flooring Acquisition Agreement, no
financing statement covering all or any portion of the CTA Flooring shall be on file in any
public office.
6. Change Orders. if CRC desires to make a change to the CTA Flooring 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 CTA Flooring
Costs; and (b) that, if implementing the Change Order Request would increase the CTA Flooring Costs, then
CRC shall pay the amount of such increase. So long as CRC agrees to pay any increase in the CTA Flooring
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 CTA Flooring Acquisition Agreement; and (b) with respect to items
of CTA Flooring, title to which has not been transferred to Developer.
7. Acquisition of CTA Flooring.
(a) Acquisition Agreement. Developer shall: (1) enter into the CTA Flooring Acquisition
Agreement; (ii) comply with all of its obligations under the CTA Flooring Acquisition
Agreement; (iii) keep the CTA Flooring Acquisition Agreement in full force and effect, without
any default by Developer thereunder; (iv) not amend or modify the CTA Flooring Acquisition
Agreement, except with the prior consent of CRC; provided that, without the prior consent of
CRC, Developer may make m inor, non - substantive amendments or modifications of or to the
CTA Flooring Acquisition Agreement; and (v) enforce the terms and conditions of the CTA
Flooring 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
CTA Flooring 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 CTA Flooring, Developer shall collaterally assign the GTA Flooring Acquisition
Agreement to CRC.
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(b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation
of), all of the CTA Flooring in accordance with the CTA Flooring Acquisition Agreement, the
CTA Flooring Schedule, and the CTA Flooring 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 CTA
Flooring Costs exceed the proceeds of the CTA Flooring Disbursement, 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 CTA Flooring and obtained (and delivered to CRC) the Warranties,
CRC shall check the CTA Flooring and the Warranties against the CTA Flooring
Specifications. If CRC determines that the CTA Flooring and/or the Warranties do not
conform to the CTA Flooring 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 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 CTA Flooring and the
Warranties conform to the CTA Flooring 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 CTA Flooring, and obtained (and delivered to
CRC) the Warranties, in accordance with the CTA Flooring Specifications (reflecting any
Change Orders); and (ii) no further obligations with respect to the CTA Flooring 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 and /or supply of the CTA Flooring;
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
and /or supplier, as applicable, to honor the Warranties.
8. Acquisition - Payment.
(a) Payment Period 1.
(1) 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 8(a)(iii); (8) paid in arrears, on or before
each Payment Due Date; and (C) subject to adjustment pursuant to
Subsection 8(c).
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(iii) Because the amount of the Payment Period 1 Installments to which
Developer is entitled may fluctuate, on the CTA Flooring Disbursement
Date, and thereafter within the period between the first and fifth business
days of each month 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 the interest payment
on the CTA Flooring Disbursement or the Replacement Loan, as applicable
(using the same method of calculation as the Lender); 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.
(1) 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 8(b)(iii); (8) paid in arrears, on or before
each Payment Due Date; and (C) subject to adjustment pursuant to
Subsection 8(c).
(iii) Because the Payment Period 2 Installments to which Developer is
entitled may fluctuate, on the first day of Payment Period 2, and thereafter
within the period between the first and fifth business days of each month
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 the principal and interest payment on
the CTA Flooring Disbursement or the Replacement Loan, as applicable
(using the same method of calculation as the Lender) for the next month;
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 amountsetforth 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 8(a)(iii) or 8(b)(iii), as applicable, on or before the next occurring
Payment Due Date, CRC shall payto 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 by delivery
of written notice to Developer at least 30 days in advance; 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 (including, without limitation and if
applicable, the "Prepayment Premium ", as defined in the NBI Loan Agreement). If CRC
makes a Partial Prepayment, then Developer promptly shall pay the amount of such Partial
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Prepayment to the Lender for application against the CTA Flooring Disbursement Balance
or the Replacement Loan Balance, as applicable.
(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, thereby paying off the Purchase Price in full. Promptly thereafter, Developer shall
pay the Closing Payment to the Lender, thereby paying off the CTA Flooring Disbursement
or the Replacement Loan, as applicable, in full.
9. Acquisition -Full 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 and in accordance with the Loan Documents, 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 Prepayrn ent 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 CTA Flooring Disbursement or the Replacement Loan, as applicable, in full.
10. CTA Flooring Closing. On the CTA Flooring Closing Date, Developer shall transfer to CRC title to
the CTA Flooring. 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 CTA Flooring 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.
11. 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: (a) retains a qualified finance
professional to aid Developer in obtaining the Replacement Loan; (b) cooperates in good faith with the efforts
of such finance professional; (c) cooperates in good faith with the efforts of CRC in connection with obtaining
the Replacement Loan; and (d) 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 that Developer or its finance professional has
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identified as possible substitutions for the Replacement Loan. If Developer obtains the Replacement Loan,
then: (a) at the closing with respect thereto: (i) Developer and the Replacement Lender shall execute the
Replacement Loan Documents; and (ii) CRC, Developer, and the Replacement Lender shall execute the
Replacement Tri -Party Agreement; and (b) 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.
12. 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 this Contract, the CTA Flooring
Acquisition Agreement, 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 CTA Flooring in accordance with this Contract and the CTA Flooring Acquisition
Agreement; or (iii) the sale of the CTA Flooring 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 CTA Flooring in accordance with this Contract and the
CTA Flooring Acquisition Agreement; and/or (iii) the sale of the CTA Flooring 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 CTA Flooring free from any and all liens,
claims, security interests, encumbrances, and restrictions, except for this Contract; and
(ii) defend the CTA Flooring 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 shalt 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.
13. 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 NBI
Collateral Assignment shall not be deemed to be a consent by CRC to any Transfer.
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(b) Developer shall not: (i) file any financing statement covering all or any portion of the
CTA Flooring in any public office, except financing statements in favor of the Lender; or
(11) cause or permit any such financing statement to be filed.
(c) Developer shall not: (1) change its name; (ii) merge into, or consolidate with, any
other entity, or otherwise reorganize; (iii) permit any change in the members of Developer or
the percentage of ownership in Developer, if the effect of such change is that Developer no
longer is controlled by, or under common control with, REI Real Estate Services, LLC; 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.
14. Liens /Encumbrances. Neither Developer nor CRC shall suffer or cause the filing of any mechanic's,
supplier's, or similar lien against the CTA Flooring or any part thereof. If any mechanic's, supplier's, or similar
lien is filed against the CTA Flooring, 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 CTA Flooring.
15. Preservation. If Developer fails to: (a) make any payment under the Loan Documents or the NBI
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 NBI Tri -Party Agreement; then: (a) CRC, at its option, but without:
(1) 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
CTA Flooring Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the CTA Flooring
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).
16. 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.
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(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: (1) Installment Payment or the
Closing Payment; or (11) other amount payable by CRC to Developer in connection with the
-NBI Loan; when due, then such failure shall not be an Event of Default unless and until the
failure by Developer continues fora period of five business days after CRC pays to Developer
the delinquent Installment Payment, Closing Payment, or other am aunt, 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 NBI 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 CTA Flooring
Acquisition Agreement, and the continuance of such failure beyond any applicable cure
period specified therein; 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: (1) 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 NBI Loan Agreement.
(f) An assignment or delegation by either party of any of its rights or obligations
hereunder, except as permitted by Section 19.
(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: (1) in insolvency or bankruptcy; (11) 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 CTA Flooring, 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.
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(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 CTA Flooring, 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 CTA Flooring or the interest of Developer therein,
17. 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 by CRC of the CTA Flooring.
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18. 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 11711 North Pennsylvania Street, Suite 200, Carmel, Indiana
46032, Attn: Jeffrey Sporleder, Facsimile: 317 -573 -6055; and to CRC at City of Carmel, Indiana, One Civic
Square, Carmel, Indiana 46032, Facsimile: 317 -844 -3498, Attn: Les Olds, with a copy to: Karl P. Haas, Esq.,
Wallack Somers & Haas, PC, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204,
Facsimile: 317- 231 -9900. Either party may change its address for notice from time to time by delivering notice
to the other party as provided above. All Installment Payments shall be delivered to Developer at the address
set forth in, or specified in accordance with, this Section.
19. 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 NB1 Tri -Party Agreement or the Replacement Tri -Party
Agreement, as applicable. Notwithstanding any assignment as permitted by the NBI 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 NBI
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 NBI 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.
20. 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 NBI Tri -Party Agreement, or the Replacement Tri -Party Agreement; and
(ii) the resulting exercise by Developer or CRC, respectively of its rights and remedies with respect to such
default.
21. Miscellaneous.
(a) Prior Agreements. Except in the case of the NBI 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 NBI 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
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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 19, 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 CTA Flooring.
(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 Marion County, Indiana, or the federal courts with venue
that includes Marion 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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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
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THE CITY OF CARMEL
REEVE MEN , Ce i1'S"ION
By:
Ronald E. Carter, President
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EXHIBIT 3
aylni b∎%
PARCEL 7A
Regional Performing Arts Center
Installment Purchase Contract No.
Certified Floor Covering
Carpeting, Tile & Access Flooring
Project Manual
#25310 - CSO Architects, #05150 - L'Acquis Engineering
Package #5 - Materials as outlined in sections:
09- 65 -00, 09- 65 -13, 09- 68 -00, 09 -69 -00
Description of Materials
All floor covering outline in product manual sections
09- 65 -00, 09- 65 -13, 09 -68 -00 and 09 -69 -00
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