HomeMy WebLinkAboutPurchase Agreement - $990,000 PURCHASE AGREEMENT
This Purchase Agreement(the"Agreement"),entered into by and between 251, LLC(the"Seller"),
and The City of Carmel Redevelopment Commission (the "Purchaser"), this day of June, 2005,
WITNESSES:
1. Conveyance. Subject to terms and conditions of this Agreement, Purchaser shall purchase from
Seller,and Seller shall convey to Purchaser,certain real estate owned by Seller and located at 251 2nd Street
SW and 261 2nd Street SW,which real estate is depicted on Exhibit A(collectively,the"Parcel"),together with
and including all of Seller's right, title, and interest in and to: (a)all buildings and improvements located on
the Parcel (the "Improvements"); and (b) all rights, interests, privileges, and easements in any way
appertaining to the foregoing, or used in connection therewith (the "Rights"). The Parcel, the
Improvements, and the Rights, collectively, are the "Property".
2. Purchase Price. The purchase price for the Property shall be$990,000.00(the"Purchase Price").
3. Earnest Money. Within five business days after the date hereof(the"Execution Date"), Purchaser
shall deposit $8,000.00 (the "Earnest Money") with Hamilton Title Security, LLC (the "Title Insurer").
Purchaser shall forfeit the Earnest Money to Seller if: (a) Seller has performed all of its obligations
hereunder (including, without limitation, its obligations under Subsections 8(a) and 8(c)); and
(b) Purchaser fails or refuses to perform its obligations hereunder, despite the fact that all conditions of
the performance of Purchaser have been satisfied or waived by Purchaser in writing. Such forfeiture of
the Earnest Money shall: (a) constitute liquidated damages; and (b) be the sole remedy of Seller at law
or in equity. The Earnest Money otherwise shall be paid, forfeited, refunded, or applied in accordance
with the terms and conditions of this Agreement. All interest earned on the Earnest Money shall be added
to, and deemed to be part of, the Earnest Money.
4. Closing. Subject to the terms and conditions of this Agreement, the transaction contemplated
herein(the"Transaction")shall be closed and the Land Sale Contract(as defined in Subsection 6(a))shall
be executed and delivered on July 15, 2005,or such other date agreed upon by Purchaser and Seller(the
"Closing Date"). The closing shall take place either at the office of the Title Insurer,or at such other place
as Purchaser and Seller mutually may agree. At the closing, Purchaser shall pay to Seller a portion of
the Purchase Price equal to: (a) $100,000; plus (b) an amount equal to: (i) $8,000; multiplied by (ii) the
number of times that the first day of a calendar month occurs during the period beginning on (and
including) June 1, 2005, and ending on the Closing Date; which portion of the Purchase Price shall be:
(a) paid in cash or by wire transfer; and (b) reduced by: (i) the Earnest Money; and (ii) any reductions,
credits, or prorations for which this Agreement provides. The remainder of the Purchase Price shall be
paid in accordance with the terms and conditions of the Land Sale Contract. At the closing, Purchaser
shall reimburse Seller for the amount of the premiums paid by Seller to maintain insurance for the
Property for the period beginning on June 1, 2005, and ending on the Closing Date; provided that, in no
event shall Purchaser be obligated to reimburse Seller any amounts paid for such premiums in excess
of$1,500.00.
5. Possession. Seller shall deliver possession of the Property to Purchaser on the Closing Date,
free and clear of all rights and claims of any other party to the possession, use, or occupancy of the
Property. Prior to closing, Seller shall: (a) cancel or terminate all: (i) leases, licenses, and other
agreements currently in effect with respect to the possession, use, or occupancy of the Property (the
"Leases"); (ii) service and maintenance contracts with respect to the ownership or operation of the
Property (the "Service Contracts"); and (iii) management and leasing contracts or agreements with
respect to the Parcel, the Improvements, and/or the Equipment (the "Management Contracts"); (b) pay
all amounts due under,and settle all accounts with respect to,the Service Contracts and the Management
Contracts (the "Contract Accounts"); and (c) remove all items of personal property from the Property.
Prior to closing, Seller may remove the air conditioner compressor,the furnace, and any woodwork from
the Property.
6. Seller Closing Documents. At the closing, Seller shall execute (to the extent applicable) and
deliver to Purchaser:
(a) a land sale contract in the form attached hereto as Exhibit B (the "Land Sale
Contract");
(b) a vendor's affidavit in form and substance satisfactory to Purchaser and the Title
Insurer;
(c) an affidavit that Seller is not a "foreign person", in form and substance required
by the Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder;
(d) an affidavit that the Parcel is not "property" under the Indiana Responsible
Property Transfer Law, as amended, in form and substance satisfactory to Purchaser;
(e) a certification that all of the representations and warranties set forth in Section 10
remain true and accurate in all respects as of the Closing Date;
(f) a certification that Seller has complied with all of its obligations under Section 5;
(g) copies of such resolutions,consents of members, partners, and/or shareholders,
and other evidence as Purchaser or the Title Insurer reasonably may request,
establishing that: (i)the persons executing and delivering the foregoing documents fully
have been empowered, and have been authorized, by all necessary action of Seller; and
(ii) the execution and delivery of such documents, and the execution of the Land Sale
Contract in accordance with the terms and conditions of this Agreement, have been
authorized by Seller;
(h) such other customary documents or instruments as Purchaser or the Title Insurer
may request in connection with closing the Transaction; and
(i) all of Seller's keys, cards, and combinations to all locks and security devices on
or in the Parcel and/or the Improvements.
7. Taxes. Purchaser assumes and agrees to pay: (a) all general and special governmental and
utility assessments (the "Assessments") first becoming due after the Closing Date; and (b) real estate
taxes assessed for and becoming a lien against the Property (the "Real Estate Taxes"), beginning with
the installment of Real Estate Taxes first becoming due in November, 2005(the"November Installment");
accordingly, there shall be no proration of Real Estate Taxes at the Closing, and Purchaser shall pay all
installments becoming due after the Closing Date, including the November Installment. Seller shall pay:
(a) all Assessments first becoming due prior to the Closing Date, and any other assessments of any
nature that first become due prior to the Closing Date; and (b) all installments of Real Estate Taxes due
prior to the November Installment.
8. Conditions of Performance. The obligations of Purchaser under this Agreement are subject to
the satisfaction of the following conditions within: (a)the period commencing on the Execution Date and
ending on the date that is 60 days thereafter(the"Due Diligence Period"); or (b) such other period as is
set forth in this Section; unless waived in writing by Purchaser.
(a) Property Information. Within five days after the Execution Date, Seller shall
provide to Purchaser either: (i) full and complete copies of: (A) all reports and results of
surveys, borings, soil, water and engineering tests, and other tests, inspections,
-2-
Z.\Documents\Shoup,Jenny\City of Carmel\Harrill\Purchase Agreement-Harril.v3 wpd
examinations, studies, and investigations conducted by or for, or in the possession of,
Seller, its affiliates, or its property manager with respect to the Property; and
(B)documentation with respect to remediation, removal,encapsulation,or abatement of:
(1)any hazardous waste,material,or substance(including,without limitation,asbestos);
or(2)any underground storage tank; on, in, under or from the Parcel,the Improvements,
any part thereof,or any groundwater thereunder(the"Prior Abatement"); or(ii)a certified
statement that, prior to the Execution Date, Seller provided all of the foregoing to
Purchaser.
(b) Survey. Purchaser, at its expense, shall have determined that the survey of the
Parcel (the"Survey") obtained by Purchaser: (i)describes the perimeter of the Parcel as
a single parcel without gaps, gores, or overlaps; (ii) is certified as of a current date;
(iii)shows that:(A)no encroachments exist;and(B)all improvements are located entirely
within the bounds of the Parcel; (iv) shows no condition that might prevent or impair
Purchaser's intended redevelopment of the Parcel(the"Intended Redevelopment");and
(v) establishes that no part of the Parcel is located within: (A) a "flood hazard zone", as
shown on the applicable Federal Insurance Rate Map;or(B)a"floodway"or"flood plain",
as shown on the applicable Flood Control District Map. The Survey shall establish the
precise legal description of the Parcel for purposes of title insurance and closing
documents.
(c) Commitment. Purchaser,at its expense,shall have determined that,pursuant to the
title insurance commitment for the Property obtained by Purchaser from the Title Insurer(the
"Commitment"), the Title Insurer has committed to: (i) insure Purchaser's interest as a land
sale contract purchaser, free of the standard exceptions and all other exceptions except
(collectively, the "Permitted Exceptions"): (A) the lien of current Real Estate Taxes not
delinquent; and (B) other matters accepted by Purchaser in writing; and (ii) issue such
customary endorsements as Purchaser reasonably deems to be necessary or appropriate.
At the closing: (i)Seller shall cause to be released all mortgages encumbering the Property;
and (ii) Purchaser shall be able to obtain a land contract purchaser's policy of title
insurance subject only to the Permitted Exceptions and otherwise consistent with the
Commitment.
(d) Environmental Condition. Purchaser shall have determined that: (i) there is not
now, and there has not been, any contamination or pollution of the Parcel, the
Improvements,any part thereof,or any groundwater thereunder by any hazardous waste,
material, or substance; (ii) there is not now, and there have not been, any underground
storage tanks located on, in, or under the Parcel or the Improvements; (iii) there is no
asbestos on or in the Parcel or the Improvements that requires removal, encapsulation,
or abatement for the use of the Property intended by Purchaser(the"Intended Use");and
(iv) any Prior Abatement was completed properly, and in compliance with all applicable
federal, state, or local laws, statutes, or ordinances, or governmental rules, regulations,
or orders (the "Laws").
(e) Physical Condition. Purchaser, at its expense, shall have determined that: (i)the
Property is satisfactory for the Intended Use; (ii)the Improvements are structurally sound
and in compliance with all Laws; and (iii) the Parcel enjoys rights of direct access to and
from public streets adequate for the Intended Use.
(f) Other Conditions. As of the Closing Date, no action or proceeding before a court
or other governmental agency or officer shall be pending, and no such action or
proceeding shall be threatened, that might impair the value of the Property or prevent or
impair the use or operation by Purchaser of the Property. There shall be no breach of
-3-
Z\Documents\Shoup,Jenny\Cty of Carmel\Hard'\Purchase Agreement-Haml v3 wpd
this Agreement by Seller, and, as of the Closing Date, all of the representations and
warranties set forth in Section 10 shall be true and accurate in all respects.
If one or more of the conditions set forth in this Section is not (or cannot be) timely and completely
satisfied,then Purchaser,at its sole option, may cancel this Agreement and all of its obligations hereunder
by a written notice to Seller, in which event all Earnest Money shall be refunded to Purchaser immediately.
9. Inspection. Purchaser and its agents, employees, and contractors shall have the right to enter
upon the Parcel and the Improvements at reasonable times to conduct all surveys, borings, tests,
inspections, examinations, studies, and investigations as Purchaser deems to be necessary or
appropriate(the"Physical Inspections"). Purchaser promptly shall repair any damage to the Parcel or the
Improvements resulting from the Physical Inspections.
10. Representations. Seller hereby represents and warrants to Purchaser that:
(a) after the Execution Date, Seller shall not permit any lien or other encumbrance
to attach to or affect the Property, except for the lien of current Real Estate Taxes and
Assessments;
(b) after the Execution Date, Seller shall not enter into, modify, amend, or terminate
any easement, or other document, instrument, or agreement affecting or concerning the
Property or the interest of Seller therein, except for cancellation and termination of the
Leases, the Service Contracts, and the Management Contracts;
(c) to the best of Seller's knowledge,there are no violations of any Laws affecting the
Property (and no fact or circumstance exists that might give rise to such a violation);
(d) after the Execution Date, Seller shall maintain the Property in a condition that
complies with Laws;
(e) Seller has not caused there to be any contamination or pollution of the Parcel,the
Improvements, any part thereof, or of any groundwater thereunder, by any hazardous
waste, material, or substance in violation of any Laws; and
(f) Seller has not installed any underground storage tanks on, in,or under the Parcel
or the Improvements.
11. Risk of Loss. If the Property, or any part thereof, is damaged or destroyed by fire or other
casualty, then Purchaser, at its sole option, may terminate this Agreement or proceed with closing. If
Purchaser elects to terminate this Agreement, then all Earnest Money immediately shall be refunded to
Purchaser. If Purchaser elects to proceed with closing, then Purchaser may apply the proceeds of any
insurance policy to reduce the Purchase Price.
12. Notices. All notices permitted or required to be given hereunder shall be in writing, and shall be
deemed to be delivered when: (a) delivered personally; (b)sent by facsimile, with electronic confirmation of
receipt; or(c)sent by national overnight courier; in all events to the following addresses: to Purchaser at City
of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Facsimile:317-844-3498,Attn: Les Olds,with
a copy to:Karl P. Haas, Esq.,Wallack Somers&Haas,One Indiana Square,Suite 1500, Indianapolis, Indiana
46204, Facsimile: 317-231-9900; or(b)to Seller at 3057 Sugar Maple Court, Carmel, Indiana 46033. Either
party may change its address for notice by written notice delivered to the other party as provided above.
-4-
Z.\Documents\Shoup.Jenny\City of Carmel\Hamll\Purchase Agreement-Harril.v3 wpd
13. Specific Performance. Purchaser and Seller agree that:(a)money damages are not an adequate
remedy for breach of this Agreement; and (b) in addition to any other remedies available to the
non-breaching party in the event of a breach by the other party,the non-breaching party shall be entitled
to: (i) the remedy of specific performance to enforce the terms and conditions of this Agreement; or
(ii) cure the breach at the expense of the breaching party. If: (a) a party breaches this Agreement; and
(b) the non-breaching party does not elect the remedy of specific performance or to cure the breach at
the expense of the breaching party;then the non-breaching party may terminate this Agreement, in which
case, if the breaching party is Seller, all Earnest Money immediately shall be refunded to Purchaser.
14. Brokers. Seller hereby represents and warrants that: (a) there is no contract or agreement
between Seller and any broker in connection with the Transaction, other than a contract or agreement
with Hinshaw Realty, Inc. (the "Fee Agreement"); (b) the Fee Agreement was assigned to Horizon
Consultants, LLC(the"Broker");and(c)Seller shall pay all commissions and other fees due to the Broker
in connection with the Transaction. Seller and Purchaser hereby represent and warrant that no fee,
commission, or similar compensation shall be payable by Purchaser or Seller to any broker, person, or
entity other than the Broker, as a result of any agreement or action by Seller or Purchaser, respectively.
15. Authority. Each of the undersigned persons executing this Agreement on behalf of Purchaser and
Seller represents and certifies that he or she is fully empowered and duly authorized by all necessary action
of Purchaser and Seller, respectively, to execute and deliver this Agreement.
16. Successors. Purchaser shall not assign this Agreement without the prior written consent of Seller,
which consent shall not be withheld unreasonably;provided that Purchaser may assign this Agreement to any
agency or instrumentality of the City of Carmel, Indiana, without the consent of Seller. This Agreement
otherwise shall be binding upon, and inure to the benefit of, Purchaser and Seller, and their respective
successors and assigns.
17. Miscellaneous. The terms and conditions of this Agreement shall be governed by,and construed
in accordance with,the laws of the State of Indiana. The section headings shall not be considered in any
way to affect the interpretation of this Agreement. All Exhibits referenced in this Agreement are attached
hereto and incorporated herein by reference. This Agreement is the final expression of the complete and
exclusive agreement between Purchaser and Seller. No agreement by and between Purchaser and Seller
to modify or amend this Agreement shall be binding and enforceable, unless all terms and provisions of
the modification or amendment are set forth in writing and signed by Purchaser and Seller. All
representations, warranties, and agreements contained in this Agreement shall survive the closing, and
Purchaser and Seller each shall indemnify and hold harmless the other from and against any and all
claims, actions, liabilities, losses, damages, injuries, costs, and expenses (including, without limitation,
attorneys' fees and court costs) incurred as a result of, or in connection with, any breach of any
representation, warranty, or agreement contained in this Agreement.
-5-
Z\Documents\Shoup,Jenny\City of Carmel\Harrill\Purchase Agreement-Harril.v3.wpd
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement as of the
day and year first written above.
THE CITY OF CARMEL
REPEVEL , ° ' NT
NTCOOMMM •s
W �
By: 1. ., i,/
Ronald Carter, President
251,
By:
Dorothy R.'4- 1 ember
By: S�! . -_ ' / . � A
/ //
Georg- Delano Harrill, Member
-6-
Z\Documents\Shoup,Jenny\City of Carmel\Harnll\Purchase Agreement-Harnl v3.wpd
EXHIBIT A
Depiction of Parcel
-7-
Z:\Documents\Shoup,Jenny\Cty of Carmel\Harnll\Purchase Agreement-Harnt.v3 wpd
EXHIBIT B
Form of Land Sale Contract
LAND SALE CONTRACT
This Land Sale Contract(the"Contract"),entered into by and between 251, LLC(the"Seller"),and
The City of Carmel Redevelopment Commission (the "Purchaser"), this day of July, 2005,
WITNESSES:
Recitals
WHEREAS, Seller and Purchaser have entered into that certain Purchase Agreement dated
, 2005 (the"Purchase Agreement');
WHEREAS, pursuant to the Purchase Agreement,Seller has agreed to convey to Purchaser,
and Purchaser has agreed to purchase from Seller, certain real estate owned by Seller and located at 251
2nd Street SW and 261 2"d Street SW, which real estate is depicted on Exhibit A(collectively,the"Parcel"),
together with and including all of Seller's right,title, and interest in and to: (a)all buildings and improvements
located on the Parcel(the"Improvements"); and (b)all rights, interests, privileges,and easements in anyway
appertaining to the foregoing, or used in connection therewith (the "Rights");
WHEREAS, the Parcel, the Improvements, and the Rights, collectively, are the"Property";
WHEREAS, pursuant to the Purchase Agreement, the purchase price for the Property is
$990,000.00 (the"Purchase Price");
WHEREAS, the Purchase Agreement contemplates that, at the closing of the transaction
contemplated therein (the "Closing"): (a) Purchaser shall pay to Seller a portion of the Purchase Price, as
more particularly determined pursuant to the Purchase Agreement; and(b)Seller and Purchaser shall enter
into a land sale contract pursuant to which Purchaser shall pay the remainder of the Purchase Price to Seller;
WHEREAS, the Closing occurred on the date hereof;
WHEREAS, at the Closing, Purchaser paid to Seller a portion of the Purchase Price equal
to $
WHEREAS, the remaining amount of the Purchase Price(the"Purchase Price Remainder")
is $ ; and
WHEREAS, Seller and Purchaser desire to enter into this Contract;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, Seller and Purchaser agree as follows:
1. Purchase Price Remainder. Purchaser shall pay the Purchase Price Remainder as follows:
(a) Interest. Interest shall accrue on the principal balance of the Purchase Price
Remainder remaining from time to time (the "Principal Balance"), with such interest (the
"Accrued Interest") accruing: (i) from the date hereof (the "Execution Date") until the
Purchase Price is paid in full; and (ii) at the rate of % (representing the greater of:
(A)6.5%;or(B)275 basis points above the 5-year Treasury Bill rate,as published in the Wall
Street Journal on the 5th business day before the Execution Date). The Principal Balance
and the Accrued Interest, collectively, are the "Contract Balance".
(b) Payment.
(i) On the first day of the first full calendar month following the
Execution Date, Purchaser shall pay to Seller the Accrued Interest for the
period: (A)commencing on the Execution Date; and (B)ending on the last
day of the calendar month in which the Execution Date occurred.
(ii) Commencing on the first day of the second full calendar month
following the Execution Date, and continuing on the first day of each of the
next 58 calendar months thereafter,Purchaser shall pay$8,000.00 to Seller.
(ii) On the first day of the 61st full calendar month following the
Execution Date(the"Final Payment Date"),Purchaser shall pay to Seller the
remaining principal balance of the Purchase Price Remainder.
(c) Prepayment. Purchaser may make prepayments of any amount of the Contract
Balance at any time without penalty or premium. All payments made by Purchaser, including
prepayments, shall be applied first to Accrued Interest, and then to reduce the Principal
Balance.
2. Taxes and Insurance.
(a) Taxes. Purchaser assumes and agrees to pay: (i) all general and special
governmental and utility assessments (the "Assessments") first becoming due after the
date hereof; and (ii) real estate taxes assessed for and becoming a lien against the
Property (the "Real Estate Taxes"), beginning with the installment of Real Estate Taxes
first becoming due in November, 2005 (the "November Installment"); accordingly, there
shall be no proration of Real Estate Taxes, and Purchaser shall pay all installments
becoming due after the date hereof,including the November Installment. Seller shall pay:
(i) all Assessments first becoming due prior to the date hereof, and any other
assessments of any nature that first become due prior to the date hereof; and (ii) all
installments of Real Estate Taxes due prior to the November Installment. Purchaser, at
its expense and upon written notice to Seller, may contest on its and Seller's behalf any
changes of the assessed valuation of the Property. Seller shall cause all statements for
Assessments and installments of Real Estate Taxes payable by Purchaser pursuant to this
Subsection to be sent directly to Purchaser, and Purchaser, upon written request by Seller,
shall provide to Seller evidence that Purchaser has paid such Real Estate Taxes.
(b) Insurance. Purchaser shall maintain fire and extended coverage insurance with a
responsible insurer covering all improvements located on the Property in a minimum amount
equal to the amount of the Principal Balance (the "Casualty Insurance"). The Required
Insurance shall be issued in the name of Seller and Purchaser, as their respective interests
may appear. Purchaser shall maintain standard liability insurance, in customary amounts,
which insurance (the "Liability Insurance") shall name Seller as an additional insured.
Purchaser, upon written request by Seller, shall provide to Seller evidence that Purchaser is
maintaining the Casualty Insurance and the Liability Insurance (the "Required Insurance").
(c) Payment. If: (i)Purchaser fails to: (A)pay any Real Estate Taxes;or(B)maintain the
Required Insurance; and (ii) such failure continues for ten days after written notice from
Seller;then Seller may pay such Real Estate Taxes or maintain the Required Insurance, as
the case may be, and add the amount paid to the Principal Balance.
3. Possession and Title. Seller and Purchaser acknowledge that: (a) on the date hereof, Seller has
given Purchaser full and complete possession of the Property; (b) as of the date hereof, Purchaser has the
Z\Documents\Shoup,Jenny\City of Carmel\Harrill\Purchase 20Jun05
Agreement-Harnl.v3 wpd Page -9-
right to any income from the Property;and (c)Purchaser has obtained,from Hamilton Title Security, LLC(the
"Title Insurer"), a land contract purchaser's policy of title insurance satisfactory to Purchaser (the "Land
Contract Title Policy"). After the date hereof, Seller shall not encumber the Property with a mortgage or any
other lien.
4. Damage. All proceeds of the Casualty Insurance received by Purchaser and Seller as payment for
any loss of, or damage to, the Property shall be applied as determined by Purchaser either: (a)to restoration
and/or repair of the Property;or(b)toward prepayment of the Contract Balance; provided that, if an uncured
Event of Default (as defined in Section 9) exists on the date of receipt of such proceeds, then Seller may
require such proceeds to be applied toward prepayment of the Contract Balance,with any excess to be paid
to Purchaser.
5. Mechanics' Liens Release. Purchaser shall not suffer or cause the filing of any mechanic's lien
against the Property. If any mechanic's lien is filed against the Property,or any part thereof,for work claimed
to have been done for, or materials claimed to have been furnished to, Purchaser, then Seller, at its option,
may compel the prosecution of an action for the foreclosure of such mechanic's lien by the lienor. If: (a)any
such mechanic's lien is filed; and (b) an action is commenced to foreclose the lien; then, upon receipt of
written demand from Seller, Purchaser, at its expense, shall cause such mechanic's lien to be released by:
(a)filing a written undertaking with a surety approved by the Court; and (b)obtaining a court order releasing
the Property from such mechanic's lien. Nothing in this Contract shall be deemed or construed to constitute
consent to,or a request of any party for, or as giving Purchaser the right or authority to contract for, authorize,
or permit, the performance of any work or the furnishing of any materials that would permit the attaching of
a valid mechanic's lien.
6. Indemnification. Purchaser hereby assumes all risk and responsibility for accidents, injuries, or
damages to persons and property arising from its use and control of the Property and the improvements
located thereon. Each party shall indemnify and hold harmless the other from and against any and all claims,
judgments,liabilities,losses,costs,and expenses(including,without limitation,reasonable attorneys'fees and
court costs) arising from, or connected with, such party's control or use of the Property (including, without
limitation, any damage or injury to person or property); provided that these indemnifications shall not include
any matter against which Seller or Purchaser effectively is protected by insurance. If either party,without fault,
becomes a party to litigation commenced by or against the other party, then the party by or against whom
litigation is commenced shall indemnify and hold harmless the other party.
7. Use and Operation. Purchaser may use the Property for any legal purpose. If Purchaser:
(a) obtains, from an independent MAI appraiser, an appraisal that values the Parcel and the Improvements
separately (the "Appraisal"); and (b) pays down the Principal Balance so that it is no more than 80% of the
value of the Parcel, as set forth in the Appraisal; then Purchaser shall have the right to demolish the
Improvements. Except to the extent that Purchaser is permitted to demolish the Improvements, Purchaser
shall:(a)use the Property in a careful manner; (b) keep the Property in good repair; and (c)not commit waste
on the Property. In connection with its use of the Property, Purchaser shall comply with applicable federal,
state, or local laws, statutes, or ordinances, or governmental rules, regulations, or orders. Until the
Contract Balance is paid in full, Seller, from time to time, at reasonable times, and upon prior written notice
to Purchaser, may enter upon and inspect the Property.
8. Purchaser Defaults. Each of the following shall constitute an"Event of Default"for purposes of this
Contract:
(a) Failure by Purchaser to make any payment within 10 days after the date on which
the payment first becomes due;
(b) Failure by Purchaser to observe or perform any term or condition of this Contract to
be observed or performed by Purchaser with respect to insurance, and the continuance of
such failure for ten days after receipt of written notice from Seller;
Z:\Documents\Shoup,Jenny\City of Carmel\Harrill\Purchase 20Jun05
Agreement-Harril.v3wpd Page -10-
(c) Failure by Purchaser to perform or observe any other term or condition of this
Contract, and the continuance of such failure for 30 days after receipt of written notice from
Seller; provided that, if such failure is of a nature that it reasonably cannot be cured within 30
days, then no Event of Default shall be deemed to have occurred so long as Purchaser:
(i) commences to cure such failure within 30 days; and (ii) diligently pursues such cure to
completion;
(c) The making of any levy on, or any seizure or attachment of, the Property;
(d) Purchaser:(i)institutes or consents to any proceedings:(A)in insolvency;(B)for the
adjustment, liquidation, extension, or composition or arrangement of debts; or (C) for any
other relief under any insolvency law or laws relating to the relief or reorganization of debtors;
(ii) 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 its
inability to pay debts as they become due; or
(e) Any part of the Property, or all or a substantial part of the property or assets of
Purchaser, is placed in the hands of any appointed receiver, trustee or other appointed
officers or representatives of any court, and the appointment of such receiver, trustee, or
other officer or representative is not vacated or set aside within 90 days of the appointment,
or Purchaser consents, agrees or acquiesces to the appointment of any such receiver or
trustee.
9. Seller Remedies. If an Event of Default occurs and is continuing, then: (a) at the option of Seller:
(i)the entire Contract Balance shall become immediately due and payable without any notice or demand of
any kind; and (ii) Seller shall have the right to exercise any and all remedies available at law or in equity to:
(A) collect the Contract Balance; (B) foreclose this Contract; and (C) protect Seller's interest under this
Contract and in and to the Property; or (b) Seller may exercise any and all remedies available at law or in
equity to enforce the observation or performance by Purchaser of the terms and conditions of this Contract.
All of the remedies available to Seller shall be cumulative and not exclusive, and the failure by Seller to
exercise any remedy at any time shall not operate as a waiver of the right of Seller to exercise any remedy
for the same or any subsequent Event of Default at any time thereafter. If an Event of Default occurs under
Subsection 8(a), then, in addition to the foregoing remedies, Purchaser shall pay to Seller an amount equal
to 5% of the late payment.
10. Transfer of Title. On the Final Payment Date, and upon payment by Purchaser of the Contract
Balance, Seller shall convey to Purchaser fee simple title to the Property by General Warranty Deed, subject
only to: (a)easements and restrictions of record as of the Execution Date, as disclosed in the Land Contract
Title Policy; (b)the rights of persons in possession of the Property claiming by,through, or under Purchaser;
(c)the lien of all Real Estate Taxes payable by Purchaser hereunder;and(d)any other encumbrances which,
by the terms and conditions of this Contract, are to be paid by Purchaser. In addition to the foregoing, Seller
shall deliver the following to Purchaser:
(a) a Vendor's affidavit, in form and substance acceptable to Purchaser and the Title
Insurer;
(b) an affidavit that Seller is not a "foreign person", in form and substance similar to that
delivered to Purchaser at the Closing; and
(c) an affidavit that the Parcel is not "property" under the Indiana Responsible
Property Transfer Law, as amended, in form and substance similar to that delivered to
Purchaser at the Closing.
Z:\Documents\Shoup,Jenny\City of Carmel\Harrill\Purchase 20Jun05
Agreement-Harril.v3.wpd Page -11-
11. Notices. All notices permitted or required to be given hereunder shall be in writing, and shall be
deemed to be delivered when: (a)delivered personally; (b) sent by facsimile, with electronic confirmation of
receipt;or(c)sent by national overnight courier; in all events to the following addresses: to Purchaser at City
of Carmel, Indiana,One Civic Square, Carmel, Indiana 46032, Facsimile:317-844-3498,Attn: Les Olds,with
a copy to:Karl P. Haas, Esq.,Wallack Somers&Haas,One Indiana Square,Suite 1500, Indianapolis, Indiana
46204, Facsimile: 317-231-9900; or(b)to Seller at 3057 Sugar Maple Court, Carmel, Indiana 46033. Either
party may change its address for notice by written notice delivered to the other party as provided above.
12. Assignment Rights. Purchaser shall not sell, assign, pledge, mortgage, encumber, or transfer its
rights and interests in and to the Property and under this Contract without the written consent of Seller;
provided that Purchaser, without the written consent of Seller, shall have the right to assign this Contract,
without the consent of Seller, to: (a) any agency or instrumentality of the City of Carmel, Indiana, in which
case Purchaser shall be released from all obligations hereunder as of the date of such assignment; or(b)a
party that has committed to Purchaser that it will redevelop the Property,in which case Purchaser shall remain
obligated hereunder until the Contract Balance is paid in full. This Contract otherwise shall be binding upon,
and shall inure to the benefit of, Seller and Purchaser and their respective heirs, personal representatives,
successors, and assigns.
13. Authority. The undersigned persons executing this Contract on behalf of Seller and Purchaser
represent and certify that: (a)they are fully empowered and duly authorized by all necessary action of Seller
and Purchaser, respectively, to execute and deliver this Contract; (b) they have full capacity, power, and
authority to enter into and carry out this Contract;(c)the execution,delivery,and performance of this Contract
have been duly authorized by Seller and Purchaser, respectively;and (d)this Contract is the legal, valid and
binding obligation of Seller and Purchaser, respectively.
14. Miscellaneous. The terms and conditions of this Contract shall be governed by and construed in
accordance with the laws of the State of Indiana. If Seller fails to observe or perform any term or condition
of this Contract to be observed or performed by Seller, and such failure continues for 30 days after receipt of
written notice from Purchaser, then: (i) Seller shall be deemed to be in default; and (ii) Purchaser may
exercise any and all remedies available at law or in equity(including,without limitation,the remedy of specific
performance); provided that, if such failure is of a nature that it reasonably cannot be cured within 30 days,
then no default shall be deemed to have occurred so long as Seller: (i)commences to cure such failure within
30 days; and (ii) diligently pursues such cure to completion. This Contract supersedes the Purchase
Agreement, and is the final expression of the complete and exclusive agreement between Seller and
Purchaser with respect to the Property. No agreement by and between Seller and Purchaser to modify or
amend this Contract shall be binding and enforceable, unless all terms and conditions of the modification or
amendment are set forth in writing and signed by Seller and Purchaser. Whenever consent is required of
either party hereunder for the occurrence of any action, such consent shall not be withheld unreasonably.
Purchaser, at its expense, may record this Contract.
Z.\Documents\Shoup,Jenny\City of Carmel\Harrill\Purchase 20Jun05
Agreement-Harnl.v3.wpd Page -12-
IN WITNESS WHEREOF, Seller and Purchaser have executed this Contract as of the day
and year first written above.
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
Ronald Carter, President
251, LLC
By:
Dorothy R. Harrill, Member
By:
George Delano Harrill, Member
Z\Documents\Shoup,Jenny\Gty of Carmel\Harrtll\Purchase 20Jun05
Agreement-Harril.v3.wpd Page -13-
ACKNOWLEDGMENTS
STATE OF INDIANA )
)SS:
COUNTY OF )
Before me, a Notary Public in and for the State of Indiana, personally appeared Ronald Carter, the
President of the City of Carmel Redevelopment Commission, who acknowledged the execution of the
foregoing Land Sale Contract on behalf of such entity.
WITNESS my hand and Notarial Seal this_day of , 2005.
By:
Notary Public
Printed Name:
I am a resident of County, Indiana.
My commission expires
STATE OF INDIANA )
SS:
COUNTY OF )
Before me,a Notary Public in and for the State of Indiana, personally appeared Dorothy R. Harrill and
George Delano Harrill, Members of 251, LLC, who acknowledged the execution of the foregoing Land
Contract on behalf of such entity.
WITNESS my hand and Notarial Seal this_day of , 2005.
By:
Notary Public
Printed Name:
I am a resident of County, Indiana.
My commission expires
This instrument was prepared by Jennifer R. Shoup,Attorney-At-Law,Wallack Somers&Haas, One Indiana
Square, Suite 1500, Indianapolis, Indiana 46204.
Z\Documents\Shoup.Jenny\City of Carmel\Harrill\Purchase 20Jun05
Agreement-Harril v3 wpd Page -14-