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HomeMy WebLinkAboutNBI/Amendment to Installment Purchase Contract - Acquisition Property (Planters) - $457,0000 AMENDMENT TO INSTALLMENT PURCHASE CONTRACT (Acquisition Property) is Amendment to Installment Purchase Contract (Acquisition Property) (the "Amendment "), executed this, day of January, 2012, by and between Carmel Theater Development Company, LLC (the "Developer "), and The City of Carmel Redevelopment Commission ( "CRC "), Witnesses: Recitals WHEREAS, Developer and CRC have entered into that certain Installment Purchase Contract (Acquisition Property), dated February 23, 2010 (the "Installment Contract "); WHEREAS, the parties seek to amend the definition of Acquisition Property, and add or delete such additional definitions as are necessary as a result of the amendment of the definition of Acquisition Property; WHEREAS, the parties seek to amend certain other definitions to reflect that various documents not executed at the time of the execution of the Installment Contract subsequently were executed; WHEREAS, as a result of the amendment of the definition of Acquisition Property, it is necessary to amend certain portions of the Installment Contract for purposes of consistency; accordingly, the parties seek to amend such portions of the Installment Contract; and WHEREAS, the parties desire to enter into this Amendment: Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, Developer and CRC agree as follows: 1. Acquisition Property. The following definitions set forth in Section 1 of the Installment Contract are amended and restated in their entirety to read as follows. Acquisition Property shall mean $457,000.00 of limestone landscape planters for use around the exterior of the Concert Hall The Acquisition Property is described in the Acquisition Property Specifications. Acquisition Property Purchase Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire and install (or cause the installation of) the Acquisition Property in accordance with this Contract and the Acquisition Agreement Mortgage shall mean that certain Real Estate Mortgage, Security Agreement, Assignment, and Fixture Filing (Acquisition Property) dated February 23, 2010, and recorded as Instrument Number 2010008921 in the Office of the Hamilton County Recorder NBI Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security Agreement executed by and among Developer, CRC, and NBI and dated as of February 23`d, 2010, as amended. NBI Loan Agreement shall mean that certain Loan Agreement (Equipment and Improvements) executed by and between Developer and NBI and dated as of February 23rd, 2010. NBI Note shall mean that certain Promissory Note executed by Developer in favor of NBI and dated February 23rd, 2010. • • NBI Tri -Party Agreement shall mean that certain Tri -Party Agreement executed by and among Developer, CRC, and NBI and dated February 23fe, 2010. 2. Deleted Definitions. In connection with the amendment and restating of the definition of Acquisition Property, the defined terms Existing Loan, Existing Loan Payoff Amount, Pedcor, and Underlying Purchase Agreement no longer are necessary and, as a result, are deleted from the Installment Contract. Accordingly, the Installment Contract shall be read as though such defined terms never had been included therein. 3. Added Definitions. In connection with the amendment and restating of the definition of Acquisition Property, the following defined terms are added to Section 1 of the Installment Contract: Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier, which agreement shall: (a) be consistent with the Acquisition Property Schedule and the Acquisition Property 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. Acquisition Property Schedule shall mean the schedule for the acquisition and installation of the Acquisition Property, which schedule (or a reference as to the location thereof) is attached hereto as Exhibit A. CRC and Developer acknowledge that the Exhibit A attached to this Amendment replaces and supersedes in its entirety the Exhibit A attached to the Installment Contract. Acquisition Property Specifications shall mean the specifications for (a) the Acquisition Property, including specific identification and /or descriptions of the Acquisition Property; and (b) the warranties from manufacturers, fabricators, and suppliers to be obtained in connection with the acquisition and installation of the Acquisition Property, which warranties shall: (i) run in favor of CRC; and (H) constitute the Warranties. The Acquisition Property Specifications are attached hereto as Exhibit A. CRC and Developer acknowledge that the Exhibit A attached to this Amendment replaces and supersedes in its entirety the Exhibit A attached to the Installment Contract. 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 Acquisition Property 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 Acquisition Property Specifications. Concert Hall shall mean the concert hall located on that certain real estate in the City commonly known as "Parcel 7a" and located generally south of City Center Drive, east of 3r`' Avenue Southwest, and west of the Monon Trail, which concert hall commonly is known as the "Palladium ". Executive Director shall mean the Executive Director of CRC (currently Les Olds). Supplier shall mean the entity from which Developer will acquire the Acquisition Property. Surviving Supplier Obligations shall mean obligations of the Supplier under the Acquisition Agreement (other than the obligations specified in the Warranties) that survive the acquisition and installation by Developer of the Acquisition Property. 7. \ Documents \Shoup, JennylCIty of Carmel \NBI- Mt.PAVImondment to Acquisition Properly IC -ortg IC in Marine Take out\Amendment to Acquisition Property IC v2 wpd -2- • Warranties shall mean the warranties specified in the Acquisition Property Specifications to be obtained in connection with the acquisition and installation of the Acquisition Property, which warranties shall run in favor of CRC. 4. General Obligations. Subsection 2(a)(i) of the Installment Contract is amended and restated in its entirety to read as follows: "(a) NBI Loan Disbursement and Acquisition. Subject to the terms and conditions of this Contract: (i) Developer shall: (A) obtain an acknowledgment from NBI that NBI will make the Acquisition Disbursement; (B) after the Acquisition Disbursement: (1) acquire the Acquisition Property and the Warranties in accordance with the Acquisition Agreement; and (2) install (or cause the installation of) the Acquisition Property; (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" 5. Acquisition Disbursement. The parties acknowledge that: (a) the Mortgage has been executed; and (b) all obligations secured by the Mortgage were satisfied in full and, as a result, the Mortgage has been released of record. Accordingly, Subsection 3(b) of the Installment Contract is amended to remove all references to the Mortgage. 6. Representations. In connection with the representations and warranties made by Developer pursuant to Subsection 5(b) of the Installment Contract, all references to the Underlying Purchase Agreement shall be deemed to be references to the Acquisition Agreement. 7. Change Orders /Acquisition. The currently existing text of Section 6 of the Installment Contract, entitled "Acquisition- General ", hereby is deleted in its entirety, and is superseded and replaced with the following Section 6. "6. Change Orders /Acquisition. (a) Change Orders. If CRC desires to make a change to the Acquisition Property Specifications, then CRC shall submit a Change Order Request to Developer, which Change Order Request shall state: (i) whether implementing the Change Order Requestwould increase, decrease, or have no effect on the Acquisition Property Purchase Costs; and (ii) that, if implementing the Change Order Request would increase the Acquisition Property Purchase Costs, then CRC shall pay the amount of such increase. So long as CRC agrees to pay any increase in the Acquisition Property Purchase 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: (i) to the extent permitted by, and in accordance with, the Acquisition Agreement; and (ii) with respect to items of Acquisition Property, title to which has not been transferred to Developer. (b) Acquisition Agreement. Developer shall: (i) enter into the Acquisition Agreement; (ii) comply with all of its obligations under the Acquisition Agreement; (iii) keep the Acquisition Agreement in full force and Z \Documents \Shoup, Jenny \City of Carmel \N61- MI.PA\Amendment to Acquisition Property IC -prig IC in Marine Take out\Amendment to Acquisition Property IC v2 wpd -3- • • effect, without any default by Developer thereunder; (iv) not amend or modify the 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 Acquisition Agreement; and (v) enforce the terms and conditions of the 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 Acquisition Agreementwith 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 Acquisition Property, Developer shall collaterally assign the Acquisition Agreement to CRC. (c) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation of), all of the Acquisition Property in accordance with the Acquisition Agreement, the Acquisition Property Schedule, and the Acquisition Property 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 Property Costs exceed the proceeds of the Acquisition Property 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. (d) Inspection. At such time as Developer has acquired and installed (or caused the installation of) the Acquisition Property and obtained (and delivered to CRC) the Warranties, CRC shall check the Acquisition Property and the Warranties against the Acquisition Property Specifications. If CRC determines that the Acquisition Property and /or the Warranties do not conform to the Acquisition Property Specifications (reflecting any Change Orders), then: (i) CRC shall provide to Developer written notice thereof; and (ii) Developer shall address the non - conformity directly with the manufacturer and/or supplier, as applicable; provided that, if Developer incurs actual, reasonable, out -of- pocket expenses in connection with addressing the non - conformity, then, upon receipt of reasonable documentation evidencing such expenses, and in the ordinary course of CRC's business, CRC shall reimburse Developer for such expenses. (e) Statement. At such time that CRC confirms that the Acquisition Property and the Warranties conform to the Acquisition Property 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 Acquisition Property, and obtained (and delivered to CRC) the Warranties, in accordance with the Acquisition Property Specifications (reflecting any Change Orders); and (ii) no further obligations with respect to the Acquisition Property and the Warranties (including that CRC shall be responsible for pursuing any claims under the Warranties). L \Documents \Shoup, Jenny \City of Carmol \NBI- MLPA\Amendrnent to Acquisition Property IC -ong IC ,n Marine Take outV\mendment to Acquisition Property IC v2 wpd -4- 0 m (f) Sole Warranties. CRC acknowledges that: (i) Developer is not making any independent warranties with respect to the manufacture and /or supply of the Acquisition Property; and (ii) although Developer is responsible for obtaining the Warranties, Developer is not responsible or liable for: (A) enforcing the Warranties; or (B) a failure by any manufacturer and /or supplier, as applicable, to honor the Warranties." 8. Acquisition Property Closing. Section 9 of the Installment Contract, entitled "Acquisition Property Closing", is amended and restated in its entirety to read as follows: "9. Acquisition Property Closing. On the Acquisition Property Closing Date, Developer shall transfer to CRC title to the Acquisition Property. 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 Acquisition Property 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." 9. Affirmative Obligations. In connection with the covenants and agreements of Developer pursuant to Section 11 of the Installment Contract, all references to the Underlying Purchase Agreement shall be deemed to be references to the Acquisition Agreement. 10. Events of Default. The reference to the Underlying Purchase Agreement in Subsection 15(c) shall be deemed to be a reference to the Acquisition Agreement. 11. Notice. Section 17 is amended to change the suite number for Wallack Somers & Haas, PC, from Suite 1500 to Suite 2300 12. Authority. The undersigned persons executing this Amendment on behalf of Developer and CRC represent and certify that: (a) they are fully empowered and authorized by all necessary action of Developer and CRC, respectively, to execute and deliver this Amendment; (b) they have full capacity, power, and authority to enter into and carry out this Amendment; (c) the execution, delivery, and performance of this Amendment have been duly authorized by Developer and CRC, respectively; and (d) this Amendment is the legal, valid and binding obligation of Developer and CRC, respectively. 13. Miscellaneous. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Indiana. All capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed to such words in the Installment Contract. In the event of any conflict between the Installment Contract and this Amendment, the terms and conditions of this Amendment shall control. Except as expressly provided in this Amendment, all of the terms and conditions of the Installment Contract shall remain in full force and effect, and Developer and CRC reaffirm the validity and binding effect of the Contract, as amended by this Amendment. 7. \Documents \Shoup, Jenny \City of Carmel \NI31- MLPA\Amendmont to Acquisition Property IC -oriq IC in Marine Take outV\mendment to Acquisition Property IC v2 wpd -5-- • • IN WITNESS WHEREOF, Developer and CRC have executed this Amendment as of the date set forth above. Z \ Documents \Shoup, Jenny \Cdy of Carmel \NBI -M1 PAAmendmont to Acquisition Property iC -ong IC in Marine Take out\Amendment to Acquisition Property IC v2 wpd -6- CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole member THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: William Hammer, President • • • IN WITNESS WHEREOF, Developer and CRC have executed this Amendment as of the date set forth above. 7 \ Documents \Shoup, Jenny \City of Carmel \NBI -Ml PAV\mendment to Acquisition Property IC.orig IC in Marine Take out\Amondment to Acquisition Property 10 v2 wpd -6- CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole member By. Jeffrey S. Sporleder, CFO THE CITY OF CARMEL REDEVE OPMENT MMISSION Stu` Hammer dent By: Wi • A EXHIBIT A PARCEL 7 Regional Performing Arts Center Installment Purchase Contract No. Bybee Stone Company, Inc. Planters Description of Materials Limestone landscape planters around the exterior of the palladium. \Docurnenls \Shoup, Jenny \City of Carmel \NBI -MLPA\Amendmenl to Acquisition Property IC -ong IC in Marine Take out\Arnendment to Acquisition Property IC v2.wpd -7-