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HomeMy WebLinkAboutCarmel Theater Development Co. - Garage West Wall Improvements - $309,100O D O INSTALLMENT PURCHASE CONTRACT (Garage West Wall Improvements) This Installment Purchase Contract (Garage West Wall Improvements) (the "Contract "), by and between Carrnel Theater Development Company,, LLC (the "Developer "), and The City of Carmel Redevelopment Commission ( "CRC "), is executed this ( day of November, 2011. 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 Garage Wall Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, over the Amortization Period (or the remainder thereof, in the case of the exercise of the Extension Option). Aggregate Garage Wall Improvements Costs shall mean the sum of: (a) the Garage Wall Improvements Costs; (b) the Lender Fees in connection with the Garage Wall Improvements Disbursement; and (c) the Loan Costs for the Garage Wall 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 the acquisition and installation of the Garage Wall Improvements in accordance with this Contract and the Garage Wall 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 Garage Wall 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 Garage Wall 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 Garage Wall Improvements 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). 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. 0 • 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). Extension Option shall mean the option to extend the term of the Regions Loan for a period of five years, which option may be exercised on the terms and conditions set forth in Exhibit C. Fixed Rate Fees shall mean, if Developer exercises the Fixed Rate Option at the request of CRC: (a) the regular (non - default) fees and costs actually paid by Developer to Regions in connection with such exercise; and (b) the Interest Rate Agreement Obligations. Fixed Rate Option shall mean the option to "fix ", "cap ", or "collar" the effective Loan Rate through a "swap" or other mechanism in accordance with the terms and conditions of Exhibit B. 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) Garage Wall 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 Garage Wall 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 Garage Wall Improvements 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 (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 Garage Wall Improvements Disbursement Balance or the Replacement Loan Balance, as applicable. Garage Wall Improvements shall mean an estimated $309,100.00 of improvements to the west wall of the garage located on that certain real estate commonly known as "Parcel 5 ". The Garage Wall Improvements are described in the Garage Wall Improvements Specifications. Garage Wall Improvements Acquisition Agreement shall mean one or more agreements entered into by Developer and the Supplier, which agreement shall: (a) be consistent with the Garage Wall Improvements Schedule and the Garage Wall 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. Garage Wall Improvements Closing Date shall mean the date of the closing with respect to the transfer of the Garage Wall Improvements. If such closing has not occurred at such time as Payment Period 2 expires, then the Garage Wall Improvements Closing Date shall be the date on which Payment Period 2 expires Garage Wall Improvements Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire and install (or cause the installation of) the Garage Wall Improvements in accordance with this Contract and the Garage Wall Improvements Acquisition Agreement. Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West WaiI.wpd -2- 10Nov11 0 o D Garage Wall Improvements Disbursement shall mean a disbursement by Regions of proceeds of the Regions Loan for the purposes of funding the Aggregate Garage Wall Improvements Costs. Garage Wall Improvements Disbursement Balance shall mean that portion of the principal balance of the Regions Loan disbursed to pay the Aggregate Garage Wall Improvements Costs, which portion remains outstanding. The Garage Wall 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 Garage Wall Improvements Disbursement; and (b) the Aggregate Applied Amounts. Garage Wall Improvements Disbursement Date shall mean the date of the Garage Wall Improvements Disbursement. Garage Wall Improvements Schedule shall mean the schedule for the acquisition and installation of the Garage Wall Improvements, which schedule (or a reference as to the location thereof) is attached hereto as Exhibit A. Garage Wall Improvements Specifications shall mean the specifications for (a) the Garage Wall Improvements, including specific identification and /or descriptions of the Garage Wall Improvements; and (b) the warranties from manufacturers, fabricators, and suppliers to be obtained in connection with the acquisition and installation of the Garage Wall Improvements, which warranties shall: (i) run in favor of CRC, and (ii) constitute the Warranties. The Garage Wall Improvements Specifications are attached hereto as Exhibit A. Installment Payments shall mean the Payment Period 1 Installments or the Payment Period 2 Installments, as applicable. Interest Rate Agreement shall mean any interest rate swap, basis swap, index swap or option, exchange, cap, collar, option, floor, forward, futures contract, or other hedging agreement, arrangement or security, or combination of the foregoing, however denominated (including any option to enter into the foregoing), entered into in connection with the exercise of the Fixed Rate Option at the request of CRC, including, without limitation, any: (a) ISDA Master Agreement; and (b) schedules, confirmations, and documents, and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising, and in each case as amended, modified, or supplemented from time to time Any of the foregoing may be treated as an "Interest Rate Agreement ", without regard to whether such arrangement qualifies for hedge accounting treatment under generally accepted accounting principles. Interest Rate Agreement Obligations shall mean any and all obligations: (a) whether absolute, contingent, or otherwise; and (b) howsoever and whensoever (whether now or hereafter) created; arising, evidenced. or acquired (including all renewals, extensions, and modifications thereof and substitutions therefore), under, or in connection with, any and all: (a) Interest Rate Agreements; and (b) cancellations, buy- backs, reversals, terminations, or assignments of any Interest Rate Agreement. Law shall mean any applicable federal, state, or local law, statute, ordinance, rule, or regulation, or any order of decree of any Agency (including, without limitation, the Federal Reserve System and its Board of Governors). Lender shall mean, as applicable, Regions or the Replacement Lender. Lender Fees shall mean regular (non - default) lender fees, costs, and expenses actually incurred and paid by Developer under the Loan Documents, including, without limitation and if applicable: (a) the fees incurred in connection with the exercise of the Extension Option; and (b) the Fixed Rate Fees. To the extent that fees, costs, and expenses are included in Lender Fees, such fees, costs, and expenses shall not be included in Loan Costs. Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall.wpd -3- 10Nov11 • Loan shall mean the Regions 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 Garage Wall Improvements 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 Regions Loan Documents or the Replacement Loan Documents. Loan Rate shall mean the per annum regular (non - default) rate of interest accruing on the Garage Wall Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, under the Loan Documents. Offset/Addition Amount shall mean the amount by which a projected Installment Payment set forth in a Projection Notice either exceeded or fell short of the amount of the Installment Payment to which Developer actually was entitled for the quarter with respect to which such Projection Notice applied. Offset/Addition Notice shall mean a written notice: (a) stating that the projected amount of an Installment Payment set forth in a specified Projection Notice either exceeded or fell short of the amount of the Installment Payment to which Developer actually was entitled for the quarter with respect to which such Projection Notice applied; and (b) setting forth the Offset/Addition Amount. Partial Prepayment shall mean a payment of a portion of the outstanding principal balance of the Garage Wall Improvements Disbursement or the Replacement Loan, as applicable, which payment is made by CRC In addition to an Installment Payment. Payment Due Date shall mean each April 7, July 7, October 7, and January 7 during Payment Period 1 and Payment Period 2. 41) Payment Period 1 shall mean the period: (a) beginning on the Garage Wall Improvements Disbursement Date; and (b) ending on April 7, 2012. • Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the Garage Wall Improvements, the amount of which shall be equal to: (a) the Loan Rate; multiplied by (b) the Garage Wall Improvements Disbursement Balance; and multiplied by (c) 1/4. Payment Period 2 shall mean the period: (a) beginning on April 8, 2012; and (b) ending on the maturity date of the Regions 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 quarterly installment payments for the purchase of the Garage Wall Improvements, the amount of which shall be equal to an amount that will amortize the Garage Wall Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, over the Amortization Period (or the remainder thereof, in the case of the exercise of the Extension Option) 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. Regions shall mean Regions Bank. Z: \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West WaII\IC- Garage West Wall.wpd -4- 10Nov11 • O • Regions Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security Agreement executed by and among Developer, CRC, and Regions, and dated July 22, 2010, as subsequently amended. Regions Loan shall mean the loan made by Regions to Developer in the original principal amount of $10,000,000.00. Regions Loan Agreement shall mean that certain Loan Agreement (Equipment and Improvements) executed by and between Developer and Regions, and dated July 22, 2010. Regions Loan Documents shall mean the documents evidencing and securing the Regions Loan, including, without limitation, the Regions Loan Agreement, the Regions Note, and the Regions Collateral Assignment Regions Note shall mean that certain Promissory Note executed by Developer in favor of Regions, and dated July 22, 2010. Regions Tri -Party Agreement shall mean that certain Tri -Party Agreement executed by and among Developer, CRC, and Regions, and dated July 22, 2010. Replacement Lender shall mean the financial institution making the Replacement Loan. Replacement Loan shall mean a financing (or a series of financings) comprised of a loan (or a series of loans) to Developer, the proceeds of which shall be used to refinance the Unamortized Balance, which loan (or series of loans) shall provide for: (a) a term that does not extend beyond the expiration of the Amortization Period, (b) interest at a rate accepted by CRC; (c) amortization of the Unamortized Balance over the remainder of the Amortization Period at the Loan Rate; and (d) quarterly payments that change if and when the Loan Rate changes, subject to the exercise of the Fixed Rate Option. Replacement Loan 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 Regions Tri -Party Agreement, to the extent that the Regions Tri -Party Agreement applies to the Garage Wall Improvements Disbursement, which agreement shall contain terms and conditions substantially similar to the Regions Tri -Party Agreement, modified as necessary to reflect the Replacement Loan. Supplier shall mean the entity or entities from which Developer will acquire the Garage Wall Improvements Surviving Supplier Obligations shall mean obligations of the Supplier under the Garage Wall Improvements Acquisition Agreement (other than the obligations specified in the Warranties) that survive the acquisition and installation by Developer of the Garage Wall Improvements. Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any encumbrance upon, the Garage Wall Improvements or any interest therein; or (b) any granting of a security interest in the Garage Wall Improvements. Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall.wpd -5- 10Nov11 • • Unamortized Balance shall mean the amount of the Garage Wall Improvements Disbursement Balance on the maturity date of the Regions Loan, as the same may be extended by the exercise of the Extension Option; provided that, in the case of a Replacement Loan obtained after the maturity of a prior Replacement Loan, the Unamortized Balance shall be mean the amount of the Loan Balance on the maturity of such prior Replacement Loan. Warranties shall mean the warranties specified in the Garage Wall Improvements Specifications to be obtained in connection with the acquisition and installation of the Garage Wall Improvements, which warranties shall run in favor of CRC. 2. General Obligations. (a) Regions Loan Disbursement and Acquisition. Subject to the terms and conditions of this Contract: (i) Developer shall: (A) obtain an acknowledgment from Regions that Regions will make the Garage Wall Improvements Disbursement; (B) after the Garage Wall Improvements Disbursement: (1) acquire the Garage Wall Improvements and the Warranties in accordance with the Garage Wall Improvements Acquisition Agreement; and (2) install (or cause the installation of) the Garage Wall 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 Garage Wall Improvements Disbursement shall be used only to finance the Aggregate Garage Wall Improvements Costs. If Developer obtains the Replacement Loan, then the proceeds of the Replacement Loan may be used to refinance the Unamortized Balance. (b) Fixed Rate Option. Upon receipt of written request by CRC, Developer shall exercise the Fixed Rate Option; provided that, Developer shall not exercise the Fixed Rate Option unless requested by CRC. (c) Garage Wall Improvements Transfer. Subject to the terms and conditions of this Contract: (i) Developer shall transfer to CRC; and (ii) CRC shall purchase from Developer; title to the Garage Wall 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. Garage Wall Improvements Disbursement. (a) Date. The Garage Wall Improvements Disbursement Date shall be established mutually by CRC and Developer. (b) Documents. In connection with the Garage Wall Improvements Disbursement, CRC and /or Developer, as applicable, shall execute and deliver: (i) copies of such resolutions, consents, authorizations, and other evidence as CRC or Developer, as applicable, or Regions 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 Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICsWdditional 10M -CTDC \Thirteenth Amendment IC- Garage West WaII \IC- Garage West Wall.wpd -6- 10Nov11 • 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 Regions reasonably may request. 4. Conditions of Performance. (a) Developer Conditions. The obligations of Developer with respect to the Garage Wall 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 Garage Wall Improvements 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 Garage Wall Improvements Disbursement and the payment of the Purchase Price shall be subject to satisfaction, or waiver in writing, of the following: (i) CRC, exercising commercially reasonable discretion, shall have approved the terms and conditions of the Garage Wall 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 Regions Tri -Party Agreement, or the Regions 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 Regions Tri -Party Agreement, and the Regions Collateral Assignment are the legal, valid, and binding obligations of CRC. (b) Developer. Developer represents and warrants to CRC that: (i) Developer shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Contract, the Regions 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 Z.\Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall wpd -7- 10Nov11 e Contract; and (B) perform its obligations hereunder; (v) this Contract, the Regions Tri -Party Agreement, and the Loan Documents are the legal, valid, and binding obligations of Developer; and (vi) upon acquisition thereof pursuant to the Garage Wall Improvements Acquisition Agreement: (A) Developer shall have good and marketable title to the Garage Wall Improvements, free and clear of all liens, claims, security interests, encumbrances, and restrictions, except for this Contract; and (B) no financing statement covering all or any portion of the Garage Wall Improvements shall be on file in any public office. 6. Change Orders. If CRC desires to make a change to the Garage Wall 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 Garage Wall Improvements Costs; and (b) that, if implementing the Change Order Request would increase the Garage Wall Improvements Costs, then CRC shall pay the amount of such increase. So long as CRC agrees to pay any increase in the Garage Wall 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 Garage Wall Improvements Acquisition Agreement; and (b) with respect to items of the Garage Wall Improvements, title to which has not been transferred to Developer. 7. Acquisition of Garage Wall Improvements. (a) Acquisition Agreement. Developer shall: (i) enter into the Garage Wall Improvements Acquisition Agreement; (ii) comply with all of its obligations under the Garage Wall Improvements Acquisition Agreement; (iii) keep the Garage Wall Improvements Acquisition Agreement in full force and effect, without any default by Developer thereunder; (iv) not amend or modify the Garage Wall Improvements Acquisition Agreement, except with the prior consent of CRC; provided that, without the prior consent of CRC, Developer may make minor, non - substantive amendments or modifications of or to the Garage Wall Improvements Acquisition Agreement; and (v) enforce the terms and conditions of the Garage Wall Improvements 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 Garage Wall 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 Garage Wall Improvements, Developer shall collaterally assign the Garage Wall Improvements Acquisition Agreement to CRC. (b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation of), all of the Garage Wall Improvements in accordance with the Garage Wall Improvements Acquisition Agreement, the Garage Wall Improvements Schedule, and the Garage Wall 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 Garage Wall Improvements Costs exceed the proceeds of the Garage Wall 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 Garage Wall Improvements and obtained (and delivered to CRC) the Z' \Documents \Shoup, Jenny \City of Carmel\Regtons-5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall.wpd -8- 10Nov11 • • Warranties, CRC shall check the Garage Wall Improvements and the Warranties against the Garage Wall Improvements Specifications. If CRC determines that the Garage Wall Improvements and /or the Warranties do not conform to the Garage Wall 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, fabricator, and /or supplier, as applicable; provided that, if Developer incurs actual, reasonable, out -of- pocket expenses in connection with addressing the non - conformity, then, upon receipt of reasonable documentation evidencing such expenses, and in the ordinary course of CRC's business, CRC shall reimburse Developer for such expenses. (d) Statement. At such time that CRC confirms that the Garage Wall Improvements and the Warranties conform to the Garage Wall 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 Garage Wall Improvements, and obtained (and delivered to CRC) the Warranties, in accordance with the Garage Wall Improvements Specifications (reflecting any Change Orders); and (ii) no further obligations with respect to the Garage Wall Improvements and the Warranties (including that CRC shall be responsible for pursuing any claims under the Warranties). (e) Sole Warranties. CRC acknowledges that: (i) Developer is not making any independent warranties with respect to the manufacture, fabrication, and /or supply of the Garage Wall Improvements; and (ii) although Developer is responsible for obtaining the Warranties, Developer is not responsible or liable for: (A) enforcing the Warranties; or (B) a failure by any manufacturer, fabricator, and /or supplier, as applicable, to honor the Warranties. 8. Acquisition- Payment. (a) Payment Period 1 (I) During Payment Period 1, CRC shall pay the Payment Period 1 Installments to Developer. Upon receipt thereof, Developer timely shall make the next payment due to the Lender pursuant to the Loan Documents; provided that, if a Payment Period 1 Installment Payment is delayed, then Developer shall make the payment due to the Lender promptly upon receipt of payment by CRC. (ii) The Payment Period 1 Installments shall be: (A) in the amount determined pursuant to Subsection 8(a)(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 amount of the Payment Period 1 Installments to which Developer is entitled may fluctuate, on the Garage Wall Improvements Disbursement Date, and thereafter within the period between the first and fifth business days of each March, June, September, and December during Payment Period 1, Developer shall deliver to CRC a Projection Notice. The amount set forth in the Projection Notice shall be: (A) based on Developer's reasonable projection of the interest payment on the Garage Wall Improvements Disbursement or the Replacement Loan, as applicable (using the same method of calculation as the Lender) for the next quarter; and (B) the amount of the Payment Period 1 Installment due and payable by CRC on or before the next occurring Payment Due Date. Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall wpd -9- 10Nov1 1 m A D (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 March, June, September, and December during Payment Period 2, Developer shall deliver to CRC a Projection Notice. The amount set forth in the Projection Notice shall be: (A) based on Developer's reasonable projection of the principal and interest payment on the Garage Wall Improvements Disbursement or the Replacement Loan, as applicable (using the same method of calculation as the Lender) for the next quarter; and (B) the amount of the Payment Period 2 Installment due and payable by CRC on or before the next occurring Payment Due Date. (c) Adjustment. If the projected amount set forth in a Projection Notice was more or less than the actual amount to which Developer was entitled on the Payment Due Date with respect to which such Projection Notice applied, then, with the next Projection Notice, Developer shall deliver to CRC an Offset/Addition Notice. Notwithstanding the terms and conditions of Subsection 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; provided that, if a Partial Prepayment is made more than 90 days before the maturity date of the Loan, then, in connection with such Partial Prepayment, CRC shall be obligated to pay any prepayment premium or penalty required by the Loan Documents. If CRC makes a Partial Prepayment, then Developer promptly shall pay the amount of such Partial Prepayment to the Lender for application against the Garage Wall 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 Garage Wall 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 Z \Documents \Shoup, Jenny \City of CarmehRegions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Waii11C- Garage West Wail wpd -10- 10Novi1 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. (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 Garage Wall Improvements Disbursement or the Replacement Loan, as applicable, in full. 10. Garage Wall Improvements Closing. On the Garage Wall Improvements Closing Date, Developer shall transfer to CRC title to the Garage Wall 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 Garage Wall 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. Options. (a) Fixed Rate. So long as: (i) there is no continuing Event of Default by CRC hereunder; (ii) CRC has not (A) defaulted under the Regions Tri -Party Agreement or the Regions Collateral Assignment beyond applicable cure periods; or (B) taken any other action; the result of which is that Developer no longer has the right to exercise the Fixed Rate Option, and (iii) the Fixed Rate Option remains available under the Loan Documents; Developer, upon receipt of written request and otherwise in accordance with the Loan Documents, shall exercise the Fixed Rate Option. (b) Extension. So long as: (i) there is no continuing Event of Default by CRC hereunder; (ii) CRC has not: (A) defaulted under the Regions Tri -Party Agreement or the Regions Collateral Assignment beyond applicable cure periods; or (B) taken any other action; the result of which is that Developer no longer has the right to exercise the Extension Option; and (iii) the Extension Option remains available under the Loan Documents; Developer, upon receipt of written request and otherwise in accordance with the Loan Documents, shall exercise the Extension Option. (c) Replacement Loan. So long as there is no continuing Event of Default by CRC hereunder, at the request of CRC, Developer shall exercise commercially reasonable, good faith efforts to obtain the Replacement Loan. Developer shall be deemed to have satisfied its obligation to exercise commercially reasonable, good faith efforts to obtain the Replacement Loan if Developer: (i) retains a qualified finance professional to aid Developer Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall.wpd 10Nov11 • • in obtaining the Replacement Loan; (ii) cooperates in good faith with the efforts of such finance professional; (hi) cooperates in good faith with the efforts of CRC in connection with obtaining the Replacement Loan; and (iv) provides to CRC monthly reports with respect to the progress made in obtaining the Replacement Loan; provided that, if it appears that the Replacement Loan cannot be obtained, then such reports shall set forth any alternate re- financings that Developer or its finance professional has identified as possible substitutions for the Replacement Loan. If Developer obtains the Replacement Loan, then: (i) at the closing with respect thereto: (A) Developer and the Replacement Lender shall execute the Replacement Loan Documents; and (B) CRC, Developer, and the Replacement Lender shall execute the Replacement Tri -Party Agreement; and (h) if Developer (as opposed to CRC) obtained the Replacement Loan, CRC shall pay to Developer a fee in the amount of 1`)/0 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 the Garage Wall Improvements Acquisition Agreement, this Contract, and the Loan Documents. (b) Developer shall keep in full force and effect, without any violations by Developer, any and all filings or registrations with any Agency necessary in connection with: (i) the performance by Developer of its obligations under the Loan Documents; (ii) the acquisition of the Garage Wall Improvements in accordance with this Contract and the Garage Wall Improvements Acquisition Agreement; or (iii) the sale of the Garage Wall Improvements to CRC in accordance with this Contract. (c) If any proceeding, inquiry, or investigation is pending or threatened against Developer or any property of Developer, an adverse decision with respect to which would materially and adversely affect: (i) the business, operations, or financial condition of Developer; (ii) the acquisition of the Garage Wall Improvements in accordance with this Contract and the Garage Wall Improvements Acquisition Agreement; and /or (iii) the sale of the Garage Wall Improvements to CRC in accordance with this Contract; then Developer shall: (i) notify CRC immediately in writing; (ii) prepare and submit to CRC for its reasonable approval a written plan for addressing and /or responding to such proceeding, inquiry, or investigation; and (iii) address and /or respond to such proceeding, inquiry, or investigation in accordance with the plan approved by CRC. (d) At all times, Developer shall: (i) keep the Garage Wall Improvements free from any and all liens, claims, security interests, encumbrances, and restrictions, except for this Contract; and (ii) defend the Garage Wall Improvements against the claims and demands of others. (e) Developer shall keep and maintain true, correct, accurate, and complete Books and Records. All Books and Records shall be kept and maintained in accordance with generally accepted accounting principles consistently applied. (f) CRC and its attorneys, accountants, representatives, architects, engineers, and consultants at all reasonable times shall have: (i) free access to, and rights of inspection of, the Books and Records; and (ii) the right to audit, make extracts from, and receive from Developer originals or accurate copies of, the Books and Records. Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall wpd -12- 10Nov11 0 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 Regions 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 Garage Wall 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: (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 Garage Wall Improvements, or any part thereof. If any mechanic's, supplier's, or similar lien is filed against the Garage Wall Improvements, or any part thereof, for work claimed to have been done for, or materials claimed to have been furnished to, either Developer or CRC, then Developer or CRC, respectively, shall cause such mechanic's, supplier's, or similar lien to be discharged of record within 30 days after notice of the filing by bonding, or as provided or required by law. Nothing in this Contract shall be deemed or construed to: (a) constitute consent to, or request of, the performance of any work for, or the furnishing of any materials to, either party; or (b) give either party the right or authority to contract for, authorize, or permit the performance of any work, or the furnishing of any materials; to the extent that the foregoing would permit the attachment of a mechanic's, supplier's, or similar lien to the other party's interest in the Garage Wall Improvements. 15. Preservation. If Developer fails to: (a) make any payment under the Loan Documents or the Regions 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 Regions Tri -Party Agreement; then: (a) CRC, at its option, but without: (i) any duty or obligation to do so; or (ii) any waiver or release of any default by Developer; may make any such payment or observe or perform any such obligation as necessary or appropriate to protect or defend: (i) the Garage Wall Improvements Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the Garage Wall 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). Z. \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West WaiI.wpd -13- 10Nov11 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. (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 Regions Loan; when due, then such failure shall not be an Event of Default unless and until the failure by Developer continues for a period of five business days after CRC pays to Developer the delinquent Installment Payment, 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 Regions 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 Garage Wall 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: (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 Regions 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: (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. Z: \Documents \Shoup, Jenny\City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment 1C-Garage West Wall \IC - Garage West Wall.wpd -14- 10Nov11 m (j) Any portion of the Garage Wall 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 Garage Wall Improvements, 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 Garage Wall 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 (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 Z. \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Walt \IC - Garage West Wall.wpd -15- 10Nov11 O 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 Garage Wall Improvements. 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 30 West Main Street, Suite 220, Carmel, Indiana 46032, Facsimile: 317 - 844 -3498, Attn: Les Olds, with a copy to Karl P. Haas, Esq., Wallack Somers & Haas, PC, One Indiana Square, Suite 2300, 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 Regions Tri -Party Agreement or the Replacement Tri -Party Agreement, as applicable. Notwithstanding any assignment as permitted by the Regions Tn -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 Regions 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 Regions 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 Regions 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 Regions 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 Regions 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. Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICslAdditional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall wpd -16- 10Nov11 0 0 m (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 Garage Wall 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 Hamilton County, Indiana, or the federal courts with venue that includes Hamilton County, Indiana. Developer waives, to the extent permitted under applicable law: (i) the right to a trial by jury; and (ii) any right Developer may have to: (A) assert the doctrine of "forum non conveniens "; or (B) object to venue. (f) Time Periods. All references in this Contract to periods of days shall be construed to refer to calendar, not business, days, unless business days are specified. Notwithstanding anything to the contrary set forth herein, if either party is delayed in, or prevented from observing or performing any of its obligations hereunder, or satisfying any term or condition hereunder, in any case as the result of: (i) an act or omission of the other party; or (ii) any other cause that is not within the reasonable control of such party (including, without limitation, inclement weather, the unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers); then: (i) observation, performance, or satisfaction shall be excused for the period of such delay or prevention; and (ii) the dates, and other deadlines for observation, performance, and satisfaction shall be extended for the same period. IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the date set forth above. Z: \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West WaII \IC- Garage West Wall.wpd -17- CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole member By: THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: William Hammer, President 16Nov11 (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 Garage Wall 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 Hamilton County, Indiana, or the federal courts with venue that includes Hamilton County, Indiana. Developer waives, to the extent permitted under applicable law: (i) the right to a trial by jury; and (ii) any right Developer may have to: (A) assert the doctrine of "forum non conveniens "; or (B) object to venue. (f) Time Periods. All references in this Contract to periods of days shall be construed to refer to calendar, not business, days, unless business days are specified. Notwithstanding anything to the contrary set forth herein, if either party is delayed in, or prevented from observing or performing any of its obligations hereunder, or satisfying any term or condition hereunder, in any case as the result of: (i) an act or omission of the other party; or (ii) any other cause that is not within the reasonable control of such party (including, without limitation, inclement weather, the unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers); then: (i) observation, performance, or satisfaction shall be excused for the period of such delay or prevention; and (ii) the dates, and other deadlines for observation, performance, and satisfaction shall be extended for the same period. IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the date set forth above. Z: \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall.wpd -17- CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole member By: Jeffrey S. Sporleder, CFO THE CITY 0 REDEV LSPMENT .•MMISSION Al/ • William Ha IT '.•r. Presiden CARMEL By 10N v11 Index to Exhibits Exhibit A Garage Wall Improvements Schedule and Specifications 0 Exhibit B Terms and conditions for Fixed Rate Option Exhibit C Terms and conditions for Extension Option Z \Documents \Shoup, Jenny\Ctty of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall.wpd -18- 0 Exhibit A Garage Wall Improvements Schedule and Specifications PARCEL 5 Carmel City Center Installment Purchase Contract No. Gibraltar Construction Garage west wall Description of Materials Brick and miscellaneous finishes to cover the Motor Court and City Center west wall (Parcel #5). ZADocuments \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment 1C- Garage West Wa1111C- Garage West Wall.wpd -19- 10Nov11 0 O Exhibit B Terms and conditions of Fixed Rate Option All capitalized terms used but not defined in this Exhibit or the Agreement shall have the meanings ascribed to such terms in the Regions Loan Documents. CRC may exercise the Fixed Rate Option by: (a) delivery of written notice to Lender prior to the deposit of the Advance Amount into the Loan Program Account; and (b) execution of an Interest Rate Agreement. The parties acknowledge that the Fixed Rate Option has been exercised. Z \Documents \Shoup, Jenny\City of Carmel \Regions -5 and 7 ICs1Adddional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall\IC- Garage West Wall.wpd 10Nov11 0 m Exhibit C Terms and conditions of Extension Option All capitalized terms used but not defined in this Exhibit or the Agreement shall have the meanings ascribed to such terms in the Regions Loan Documents. Not later than 120 days prior to the Maturity Date, CRC and Borrower may request an extension of the term of the Regions Loan. Lender shall review and consider such request for an extension in accordance with Lender's then - applicable underwriting standards, and will notify the CRC and Borrower as to whether such extension is granted not later than 60 days prior to the Maturity Date. Z \Documents \Shoup, Jenny \City of Carmel \Regions -5 and 7 ICs\Additional 10M -CTDC \Thirteenth Amendment IC- Garage West Wall \IC - Garage West Wall wpd 10NOvi 1 0 Contractor Garage West Wall Improvements Amount Description Gibraltar $ 309,100.00 Garage west wall Total $ 309,100.00