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HomeMy WebLinkAboutCarmel Theater Development Co. - Parcel 73 Streetscape, Range Line Rd and City Center Drive - $10,000,000/2010D INSTALLMENT PURCHASE CONTRACT City Center Drive /Rangetine Road Streetscape Improvements This Installment Purchase Contract (City Center Drive /Rangeline Road Streetscape Improvements) (the "Contract "), by and between Carmel Theater Development CompanyL (the "Developer "), and The City of Carmel Redevelopment Commission ( "CRC "), is executed this!✓\ day of June, 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 Streetscape Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, over the Amortization Period. Aggregate Streetscape Improvements Costs shall mean the sum of: (a) the Streetscape Improvements Costs; (b) the Lender Fees in connection with the Streetscape Improvements Disbursement; and (c) the Loan Costs for the Streetscape Improvements 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 Streetscape Improvements in accordance with this Contract and the Streetscape improvements 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 Streetscape Improvements 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 Streetscape improvements 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 Streetscape Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, as of the expiration of Payment Period 2; plus (b) interest thereon that has: (1) 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). 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 A • • 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) Streetscape Improvements 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 Streetscape Improvements; in advance of the expiration•of Payment Period 2 by paying the Full Prepayment Price. Full Prepayment Price shall mean the sum of: (a) the Streetscape Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, on the Full Prepayment Closing Date; plus (b) interest thereon that has: (1) accrued at the Loan Rate; and (ii) not been paid prior to the Full Prepayment Closing Date (stated alternatively, interest that has accrued, but not been paid, as part of the Installment Payments); plus (c) if the Full Prepayment Price is being paid more than 90 days before the maturity date of the Loan, any applicable prepayment premiums or similar payments due under the Loan Documents with respect to a prepayment of the Streetscape Improvements 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 extent that 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 NB1 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. 061410;1502:L2:1C Streetscape•CCD and RR,wpd • • • Loan Rate shall mean the per annum regular (non - default) rate of interest accruing on the Streetscape Improvements 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 N81, and dated as of February 23r1, 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 NB1, and dated February 23rd, 2010. N81 Tri -Party Agreement shall mean that certain TN-Party Agreement executed by and among Developer, CRC, and NBI, and dated February 23`d, 2010. 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 paymentofa portion of the outstanding principal balance of the Streetscape Improvements 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 hail 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 Streetscape Improvements Disbursement Date; and (b) ending on March 1, 2012. Payment Period 1 Installments shall mean monthly installment payments for the purchase of the Streetscape Improvements, the amount of which shall be equal to the: (a) Loan Rate; multiplied by (b) the Streetscape Improvements 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. Q61410:1502;L2 :IC Streetscape•CCD and RR.wpd • Payment Period 2 Installments shall mean monthly installment payments for the purchase of the Streetscape Improvements, the amount of which shall be equal to an amount that will amortize the Streetscape lm provements Disbursement Balance or the Replacement Loan Balance, as applicable, overthe 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 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 Streetscape Improvements Disbursement, which agreement shall contain terms and conditions substantially similar to the NBI Tri -Party Agreement, modified as necessary to reflect the Replacement Loan. Streetscape Improvements shall mean $1,376,595.00 of streetscape improvements to City Center Drive (also known as 1269" Street) and Rangeline Road. The Streetscape Improvements are described in the Streetscape Improvements Specifications. Streetscape Improvements Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier, which agreement shall: (a) be consistent with the Streetscape Improvements Schedule and the Streetscape Improvements 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. Streetscape Improvements Closing Date shall mean the date of the closing with respect to the transfer of the Streetscape Improvements. If such closing has not occurred at such time as Payment Period 2 expires, then the Streetscape Improvements Closing Date shall be the date on which Payment Period 2 expires. Streetscape Improvements Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire and install (or cause the installation of) the Streetscape Improvements in accordance with this Contract and the Streetscape Improvements Acquisition Agreement. 061410;1502:L2;IC SVeelscape•CCO and RR.wpd • 0 Streetscape Improvements Disbursement shall mean a disbursement by NBI of proceeds of the NBI Loan for the purposes of funding the Aggregate Streetscape Improvements Costs. Streetscape Improvements Disbursement Balance shalt mean that portion of the principal balance of the NBI Loan disbursed to pay the Aggregate Streetscape Improvements Costs, which portion remains outstanding. The Streetscape Improvements 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 Streetscape Improvements Disbursement; and (b) the Aggregate Applied Amounts. Streetscape Improvements Disbursement Date shall mean the date of the Streetscape Improvements Disbursement. Streetscape Improvements Schedule shall mean the schedule for the acquisition and installation of the Streetscape Improvements, which schedule is attached hereto as Exhibit B. Streetscape improvements Specifications shall mean the specifications for: (a) the Streetscape Improvements, including specific identification and /or descriptions of the Streetscape Improvements; and (b) the warranties from manufacturers and suppliers to be obtained in connection with the acquisition and installation of the Streetscape Improvements, which warranties shall: (1) run in favor of CRC; and (ii) constitute the Warranties. The Streetscape Improvements Specifications are attached hereto as Exhibit C. Supplier shall mean the entity from which Developer will acquire the Streetscape Improvements. Surviving Supplier Obligations shall mean obligations of the Supplier under the Streetscape Improvements Acquisition Agreement (other than the obligations specified in the Warranties) that survive the acquisition and installation by Developer of the Streetscape Improvements. Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any encumbrance upon, the Streetscape Improvements, or any interest therein; or (b) any granting of a security interest in the Streetscape Improvements. Unamortized Balance shall mean the amount of the Streetscape Improvements Disbursement Balance on the maturity date of the NB! 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 Streetscape Improvements Specifications to be obtained in connection with the acquisition and installation of the Streetscape Improvements, 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: (1) Developer shall: (A) obtain an acknowledgment from NBI that NBI will make the Streetscape Improvements Disbursement; (B) after the Streetscape Improvements Disbursement: (1) acquire the Streetscape Improvements and the Warranties in accordance with the Streetscape Improvements Acquisition Agreement; and (2) install (or cause the 061410 :1502;L2;IC Sireetscape•CCO and RR.wpd • A installation of) the Streetscape Improvements; (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 Streetscape Improvements Disbursement shall be used only to finance the Aggregate Streetscape Improvements Costs. If Developer obtains the Replacement Loan, then the proceeds of the Replacement Loan may be used to refinance the Unamortized Balance. (b) Streetscape Improvements Transfer. Subject to the terms and conditions of this Contract: (1) Developer shall transfer to CRC; and (ii) CRC shall purchase from Developer; title to the Streetscape improvements for the Purchase Price; provided that, if CRC exercises the Full Prepayment Option, then, in lieu of the Purchase Price, CRC shall pay the Full Prepayment Price. 3. Streetscape Improvements Disbursement. (a) Date. The Streetscape Improvements Disbursement Date shall be established mutually by CRC and Developer. (b) Documents. In connection with the Streetscape Improvements 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 NBI reasonably may request. 4. Conditions of Performance. (a) Developer Conditions. The obligations of Developer with respect to the Streetscape Improvements Disbursement shall be subject to the satisfaction, or waiver in writing, of the following: (i) Developer. exercising commercially reasonable discretion, shall have approved the terms and conditions of the Streetscape Improvements Disbursement; (11) 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. 061410:1502;1.2;IC Straatscape•CCP and RR.wpd • (b) CRC Conditions. The obligations of CRC with respect to the Streetscape Improvements 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 Streetscape Improvements 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 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 NB1 Tri -Party Agreement, and the NBI Collateral Assignment are the 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 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 (8) 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 Streetscape Improvements Acquisition Agreement, Developer shall have good and marketable title to the Streetscape Improvements, free and clear of all liens, claims, security interests, encumbrances, and restrictions, except for this Contract; and (vii) upon acquisition thereof pursuant to the Streetscape Improvements Acquisition Agreement, no financing statement covering all or any portion of the Streetscape Improvements shall be on file in any public office. 6. Change Orders. If CRC desires to make a change to the Streetscape Improvements 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 Streetscape Improvements Costs; and (b) that, if implementing the Change Order Request would increase the Streetscape Improvements Costs, then CRC shall pay the amount of such increase. So long as CRC agrees to pay any increase in the Streetscape improvements 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 Streetscape Improvements Acquisition Agreement; and (b) with respect to items of Streetscape Improvements, title to which has not been transferred to Developer. • 061410;1502 :L2;IC Streetscape.CCO ar RR.wpd • e • 7. Acquisition of Streetscape Improvements. (a) Acquisition Agreement. Developer shall: (i) enter Into the Streetscape Improvements Acquisition Agreement; (11) comply with all of its obligations under the Streetscape Improvements Acquisition Agreement; (iii) keep the Streetscape Improvements Acquisition Agreement in full force and effect, without any default by Developer thereunder; (iv) not amend or modify the Streetscape Improvements 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 orto the Streetscape Improvements Acquisition Agreement; and (v) enforce the terms and conditions of the Streetscape Improvements Acquisition Agreement against the Supplier (including that, to the extent that there are Surviving Supplier Obligations, Developer shall enforce the terms and conditions ofthe Streetscape Improvements 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 Streetscape Improvements, Developer shall collaterally assign the Streetscape Improvements Acquisition Agreement to CRC. (b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation of), all of the Streetscape Improvements in accordance with the Streetscape Improvements Acquisition Agreement, the Streetscape Improvements Schedule, and the Streetscape Improvements 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 Streetscape Improvements Costs exceed the proceeds of the Streetscape Improvements 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 Streetscape Improvements and obtained (and delivered to CRC) the Warranties, CRC shall check the Streetscape improvements and the Warranties against the Streetscape Improvements Specifications. If CRC determines that the Streetscape Improvements and /or the Warranties do not conform to the Streetscape Improvements 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 Streetscape Improvements and the Warranties conform to the Streetscape improvements 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 Streetscape Improvements, and obtained (and delivered to CRC) the Warranties, in accordance with the Streetscape Improvements Specifications (reflecting any Change Orders); and (ii) no further obligations with respect to the Streetscape Improvements and the Warranties (including that CRC shall be responsible for pursuing any claims under the Warranties). C61410;1502a2;1C Streetscape -CCD and RR wad • • (e) Sole Warranties. CRC acknowledges that: (1) Developer is not making any independent warranties with respect to the manufacture and /or supply of the Streetscape Improvements; and (ii) although Developer is responsible,for obtaining the Warranties, Developer is not responsible or liable for: (A) enforcing the Warranties; or (B) a failure by any manufacturer 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). (Iii) Because the amount of the Payment Period 1 Installments to which Developer is entitled may fluctuate, on the Streetscape Improvements 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 Streetscape Improvements Disbursement or the Replacement Loan, as applicable (using the same method of calculation as the Lender); and (8) the amount of the Payment Period 1 Installment due and payable by CRC on or before the next occurring Payment Due Date. (b) Payment Period 2. (i) During Payment Period 2, CRC shall pay the Payment Period 2 Installments to Developer. Upon receipt thereof, Developer timely shall make the next payment due to the Lender pursuant to the Loan Documents; provided that, if a Payment Period 2 Installment is delayed, then Developer shall make the payment due to the Lender promptly upon receipt of payment by CRC. (ii) The Payment Period 2 Installments shall be: (A) in the amount determined pursuant to Subsection 8(b)(iii); (B) 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 061410,1502,L2,IC Streetscape -CCD and RR.wptl • Developer's reasonable projection of the principal and interest payment on. the Streetscape Improvements Disbursement or the Replacement Loan, as applicable (using the same method of calculation as the Lender) for the next month; and (8) the amount of the Payment Period 2 Installment due and payable by CRC on or before the next occurring Payment Due Date. (c) Adjustment. If the projected amount set forth in a Projection Notice was more or less than the actual amount to which Developer was entitled on the Payment Due Date with respect to which such Projection Notice applied, then, with the next Projection Notice, Developer shall deliver to CRC an Offset/Addition Notice. Notwithstanding the terms and conditions of Subsection 8(a)(iii) or 8(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 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 Prepayment to the Lender for application against the Streetscape Improvements 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 Streetscape Improvements 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 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. C6t4100502;L2;IC Sueetscape -CCO and RR.wpd — 1v- 0 • • (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 Streetscape Improvements Disbursement or the Replacement Loan, as applicable, in full. 10. Streetscape Improvements Closing. On the Streetscape Improvements Closing Date, Developer shall transfer to CRC title to the Streetscape Improvements. In connection with such transfer: (a) CRC shall pay either the Closing Payment or the Full Prepayment Price, as applicable; and (b) Developer shall deliver to CRC a fully executed bill of sale with full warranties of title transferring the Streetscape Improvements 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 identified as possible substitutions for the Replacement Loan. If Developer obtains the Replacement Loan, then: (a) at the closing with respect thereto: (1) 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: (1) the conduct of its business and other operations; and (ii) the performance of its obligations under this Contract, the Streetscape Improvements 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: (1) the performance by Developer of its obligations under the Loan Documents; (ii) the acquisition of the Streetscape Improvements in accordance with this Contract and the Streetscape Improvements Acquisition Agreement; or (iii) the sale of the Streetscape Improvements to CRC in accordance with this Contract. {c) If any proceeding, inquiry, or investigation is pending or threatened against Developer or any property of Developer, an adverse decision with respect to which would materially and adversely affect: (1) the business, operations, or financial condition of Developer; (ii) the acquisition of the Streetscape Improvements in accordance with this Contract and the Streetscape Improvements Acquisition Agreement; and /or (iii) the sale of the Streetscape Improvements to CRC in accordance with this Contract; then Developer shall: (i) notify CRC immediately in writing; (ii) prepare and submit to CRC for its reasonable approval a written plan for addressing and /or responding to such proceeding, inquiry, or 0654,0;1502;12 ;IC Streetscape -CCD and RR.wpd :: • 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: (1) keep the Streetscape Improvements free from any and all liens, claims, security interests, encumbrances, and restrictions, except for this Contract; and (ii) defend the Streetscape Improvements against the claims and demands of others. (e) Developer shall keep and maintain true, correct, accurate, and complete Books and Records. All Books and Records shall be kept and maintained in accordance with generally accepted accounting principles consistently applied. (f) CRC and its attorneys, accountants, representatives, architects, engineers, and consultants at all reasonable times shall have: (1) 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 NB1 Collateral Assignment shall not be deemed to be a consent by CRC to any Transfer. (b) Developer shall not: (i) file any financing statement covering all or any portion of the Streetscape Improvements in any public office, except financing statements in favor of the Lender; or (ii) cause or permit any such financing statement to be filed. (c) Developer shall not: (i) change its name; (ii) merge into, or consolidate with, any other entity, or otherwise reorganize; (iii) permit any change in the members of Developer or the 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: (1) 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 Streetscape Improvements or any part thereof. If any mechanic's, supplier's, or similar lien is filed against the Streetscape Improvements, or any part thereof, for work claimed to have been done for, or materials claimed to have been furnished to, either Developer or CRC, then • 061410;1502:L2;1C Streetscape -CCD and RR.wpd :1 �' • • 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 Streetscape Improvements. 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: (1) the Streetscape improvements Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the Streetscape Improvements and /or the interest of Developer therein; and (b) Developer shall pay, upon receipt of written demand, all reasonable costs and expenses incurred by CRC in connection with making any such payment or observing or performing any such obligation (including, without limitation, reasonable attorneys' fees). 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 forfive business days after Developer delivers written notice thereof to CRC. (b) Developer's failure to comply with the terms and conditions of the Loan Documents; provided that, if such failure is due to CRC's failure to pay any: (i) Installment Payment or the Closing Payment; or (ii) 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 amount, 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 Streetscape Improvements 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: (i) with respect to the obligation to pay money (other than payment by CRC of an Installment Payment), if such failure is not cured within ten days after such payment is due; and (ii) with respect to any other obligation, if such failure is not cured within the Cure Period. (e) Any: (1) 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. 061410,1502 ;L2;1C Streetscape.CCD and RR.wpd :1 • (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: (1) institutes or consents to any proceedings: (A) in insolvency or bankruptcy; (B) for the adjustment, liquidation, extension or com position, 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. (1) Any proceeding: (i) in insolvency or bankruptcy; (ii) for the adjustment, liquidation, extension or composition, or arrangement of debts; or (iii) for any other relief; under any Law with respect to the relief or reorganization of debtors is instituted against CRC or Developer, and such proceeding is not discharged or dismissed within 60 days. (j) Any portion of the Streetscape Improvements, or any substantial portion of the other property or assets of CRC or Developer, is placed in the hands of any receiver, trustee, or other officer or representative of any court, and such receiver, trustee, or other officer or representative is not discharged or dismissed within 60 days, or CRC or Developer consents, agrees, or acquiesces to the appointment of any such receiver, trustee, or other officer or representative. (k) Any lienholder or creditor shall initiate an action to enforce or foreclose a lien or security interest on all or any portion of the Streetscape Improvements, whether such security interest or lien is superior, equal, or junior to the security interest or lien held therein by the Lender. (1) The making or filing of any levy or execution on, or any seizure, attachment, or garnishment of, any portion of the Streetscape Improvements 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 ® 061410,1502;L2.1C Streetscape-CCD and RR.wptl • 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: (1) CRC or Developer, respectively; or (11) any party acting by, under, through, or on behalf of CRC or Developer, respectively; and /or (b) the: (1) 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 Trl -Party Agreement or the Replacement Tri -Party Agreement, as applicable. This Contract may be executed in separate counterparts, each of which shall be an original, but all of which together shall constitute a single Instrument. (b) Construction. This Contract shall be construed in accordance with the laws of the State of Indiana. The captions of this Contract are for convenience only and do not in any way limit or alter the terms and conditions of this Contract. The invalidity or unenforceability of any term or condition of this Contract shall not affect the other terms and conditions, and this Contract shall be construed in all respects as if such invalid or unenforceable term or condition had not been contained herein. All exhibits referenced herein are attached hereto and incorporated herein by reference. (c) Successors. Subject to the terms and conditions of Section 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 Streetscape Improvements. (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, inctementweather, the unavailability of materials, equipment, services or labor, and 061410;150212;1C Strentscapa -CCO and RR,wpd .. • • 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. 061410; 502t2;IC Streetscape -CCD and RR.wpd :1 I CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: Ronald E. Carter, President • • • 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. 061410;1602:L2:IC Streetscape -0CD ana RR.wpa : �- CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole member By Jeffrey S. Sporleder, CFO CITY OF CARMEL ISSION Ronald E. Carter, President • co • Index to Exhibits Exhibit A PAC Real Estate Depiction Exhibit B Streetscape Improvements Schedule Exhibit C Streetscape Improvements Specifications Oti1410;1502;L2;1G Streelscape•GCO an RH.wpc =1 g: • Site Plan • • '{{Exhibit City Center Carmel, Indiana City Center Drive/Range Line Road Streetscape Improvements Parcel #5 The City of Carmel public /private partnership referred to as City Center borders on the southwest corner of Range Line Road and City Center Drive. Anchoring the project is a mixed -use multi -story project with ground floor retail stores sitting on top of an underground parking level. The streetscape that abuts the retail stores consist of brick walks with ramps and stairs that access the retail level. Included are landscaping, lighting and brick walks with a focal point water feature on the corner of Range Line Road and City Center Drive. At two points of the streetscape, the entry drive to the Veteran's Way street occur on City Center Drive. A ramped entry to the underground parking below the retail areas is located on Range Line Road. This scope of work also includes the use of brick pavers over a mud slab with a waterproof membrane for brick walks and off - street parking using parallel and diagonal parking spaces on both streets. Included is all the underground utility work in both streetscape programs. In addition to this work will be street furniture and way- finding signage and graphics. • • O EXHIBIT ('(C_ PARCEL 5 Cannel City Center Development Installment Purchase Contract No. Smock- Fansler Corporation Parcel 73 Streetscape Range Line Road and City Center Drive Project Manual Division 01 — General Requirements Division 02 — Selective Site Demolition Division 03 — Cast in Place Concrete Division 04 — Masonry Division 05 — Pipe /Tube Railings Division 07 — Thermal and Moisture Protection Division 09 — Finishes Division 12 — Furnishings Division 13 — Fountains Division 20 — Mechanical Division 23 — IHVAC Division 26 — Electrical Division 31 — Earth Work Division 32 — Exterior Improvements Division 33 — Utilities • • EXHIBIT 3 f c , PARCEL 5 Carmel City Center Development Installment Purchase Contract No. Signature Construction Services, LLC Parcel 73 Streetscape Range Line Road and City Center Drive Project Manual Division 01 — General Requirements Division 02 — Selective Site Demolition Division 03 — Cast in Place Concrete Division 04 — Masonry Division 05 — Pipe /Tube Railings Division 07 — Thermal and Moisture Protection Division 09 — Finishes Division 12 — Furnishings Division 13 — Fountains Division 20 — Mechanical Division 23 — HVAC Division 26 -- Electrical Division 31 — Earth Work Division 32 — Exterior Improvements Division 33 — Utilities