Loading...
HomeMy WebLinkAboutNBI/Carmel Theater Development Co. - Limestone Stair Improvements - $389,550m D 0 INSTALLMENT PURCHASE CONTRACT Limestone Stair Improvements This Installment Purchase Contract (Limestone Stair Improvements) (the "Contract"), by and between Carmel Theater Development Company, LLC(the "Developer "), and The City of Carmel Redevelopment Commission ( "CRC "), is executed this ]l day of September, 2012. 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 Stair Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, over the Amortization Period. Aggregate Stair Improvements Costs shall mean the sum of: (a) the Stair Improvements Costs; (b) the Lender Fees in connection with the Stair Improvements Disbursement; and (c) the Loan Costs for the Stair Improvernents Disbursement. Amortization Period shall mean a period of 20 years, commencing on March 2, 2012. Books and Records shall mean all of the books and records pertaining to acquisition and installation of the Star Improvements in accordance with this Contract and the Stair 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 Stair 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 Stair 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 Stair Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, as of the expiration of the Payment Period; plus (b) interest thereon that has: (i) accrued at the Loan Rate; and (ii) not been paid prior to the expiration of the Payment Period (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. Default Rate shall mean the default rate of interest under the Loan Documents. NBI Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security Agreement 0 executed by and among Developer, CRC, and NBI, and dated as of February 23rd, 2010, as amended. O NBI Loan shall mean the loan made by NBI to Developer in the original principal amount of $10,000,000.00. NBI Loan Agreement shall mean that certain Loan Agreement (Equipment and Improvements) executed by and between Developer and NBI, and dated as of February 23rd, 2010. NBI Loan Documents shall mean the documents evidencing and securing the NBI Loan, including, without limitation, the NBI Loan Agreement, the NBI Note, and the NBI Collateral Assignment. NBI Note shall mean that certain Promissory Note executed by Developer in favor of NBI, and dated February 23rd, 2010. NBI Tri -Party Agreement shall mean that certain Tri -Party Agreement executed by and among Developer, CRC, an NBI, and dated February 23rd, 2010. Offset/Addition Amount shall mean the amount by which a projected Installment Payment set forth in a Projection Notice either exceeded or fell short of the amount of the Installment Payment to which Developer actually \vas entitled for the month with respect to which such Projection Notice applied. Offset/Addition Notice shall mean a written notice: (a) stating that the projected amount of an Installment Payment set forth in a specified Projection Notice either exceeded or fell short of the amount of the Installment Payment to which Developer actually was entitled for the month with respect to which such Projection Notice applied; and (b) setting forth the Offset/Addition Amount. Partial F'repayment shall mean a payment of a portion of the outstanding principal balance of the Stair Improvements Disbursement or the Replacement Loan, as applicable, which payment is made by CRC in addition :o an Installment Payment. Payment Due Date shall mean the first day of each calendar month during the Payment Period. Payment Period shall mean the period: (a) beginning on the Stair Improvements Disbursement Date; and (b) endir g on the maturity date of the NBI Loan. If the Replacement Loan is obtained, then the Payment Period shall end on the maturity date of the final Replacement Loan. Projection Notice shall mean a written notice setting forth Developer's reasonable projection of the amount of the next due Installment Payment. Purchase Price shall mean the sum of all Installment Payments plus the Closing Payment. Replacement Lender shall mean the financial institution making the Replacement Loan. Replacement Loan shall mean a financing (or a series of financings) comprised of a loan (or a series of loans) to Developer, the proceeds of which shall be used to refinance the Unamortized Balance, which loan (or series of loans) shall provide for: (a) a term that does not extend beyond the expiration of the Amortization Period; I b) interest at a rate accepted by CRC; (c) amortization of the Unamortized Balance over the remainder of the Amortization Period at the Loan Rate; and (d) monthly payments that change if and when the Loar Rate changes. Replacement Loan Balance shall mean that portion of the outstanding principal balance of the Replacement Loan disbursed to pay: (a) the Unamortized Balance; (b) Lender Fees with respect to the Replacement Loan; Z \Documents \Shoup, Jenny \City of Carmel \NBI -MLPA \Installment Contracts \9th AmendmentlIC- Limestone Stairs wpd -3- 06Sep12 O D Event of Default shall have the meaning set forth in Section 16. Executive Director shall mean the Executive Director of CRC (currently Les Olds). Full Prepayment Closing Date shall mean, in the case of the exercise by CRC of the Full Prepayment Option (or the acceleration by Developer of the Full Prepayment Price pursuant to Subsection 17(a)), the: (a) date on which the Full Prepayment Price is to be paid; and (b) Stair 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 Stair Improvements; in advance of the expiration of the Payment Period by paying the Full Prepayment Price. Full Prepayment Price shall mean the sum of: (a) the Stair 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 Stair Improvements Disbursement Balance or the Replacement Loan Balance, as applicable (including, without li - nitation and if applicable, the prepayment premium required pursuant to Subsection 4(e) of the NBI Loan Agreement). Installment Payments shall mean monthly installment payments for the purchase of the Stair Improvements, the amount of which shall be equal to an amount that will amortize the Stair Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, over the Amortization Period at the Loan Rate. Law sha I mean any applicable federal, state, or local law, statute, ordinance, rule, or regulation, or any order of decree of any Agency. Lender :shall mean, as applicable, NBI or the Replacement Lender. Lender Fees shall mean regular (non - default) lender fees, costs, and expenses actually incurred and paid by Developer under the Loan Documents. To the extent that fees, costs, and expenses are included in Lender Fees, such fees, costs, and expenses shall not be included in Loan Costs. Loan shall mean the NBI Loan or the Replacement Loan, as applicable. Loan Costs shall mean the actual, out -of- pocket costs incurred by Developer: (a) in connection with the NBI Disbursement; and /or (b) to close Replacement Loan. To the extent that costs are included in Loan Costs, such costs shall not be included in Lender Fees. Loan Documents shall mean, as applicable, the NBI Loan Documents or the Replacement Loan Documents. Loan Rate shall mean the per annum regular (non - default) rate of interest accruing on the Stair Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, under the Loan Documents. NBI shall mean The National Bank of Indianapolis. Z. \Documents \Shoup, Jenny \Cty of Carmel \NBI -IALPA \Installment Contracts \9th Amendment \''C - Limestone Stairs.wpd -2- 06Sep12 e 0 D and (c) Loan Costs with respect to the Replacement Loan. The Replacement Loan Balance shall be reduced by: (a) any Partial Prepayments that have been made by CRC to Developer, even if the Lender has not yet applied any such Partial Prepayments to reduce the outstanding principal balance of the Replacement Loan; and (b) the Aggregate Applied Amounts. Replacement Loan Documents shall mean the documents evidencing and securing the Replacement Loan. Replacement Tri -Party Agreement shall mean an agreement by and among CRC, Developer, and the Replacement Lender replacing the NBI Tri -Party Agreement, to the extent that the NBI Tri -Party Agreement applies to the Stair Improvements Disbursement, which agreement shall contain terms and conditions substantially similar to the NBI Tri -Party Agreement, modified as necessary to reflect the Replacement Loan. Stair Improvements shall mean an estimated $389,550.00 of stairs and related improvements (including a limestone block retaining wall, lighting, and urns). The Stair Improvements are described in the Stair Improvernents Specifications. Stair Improvements Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier, which agreement shall: (a) be consistent with the Stair Improvements Schedule and the Stair Improvernents 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. Stair Improvements Closing Date shall mean the date of the closing with respect to the transfer of the Stair Improvernents. If such closing has not occurred at such time as the Payment Period expires, then the Stair Improvernents Closing Date shall be the date on which the Payment Period expires. Stair Improvements Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire and install (o- cause the installation of) the Stair Improvements in accordance with this Contract and the Stair Improvernents Acquisition Agreement. Stair Improvements Disbursement shall mean a disbursement by NBI of proceeds of the NBI Loan for the purposes of funding the Aggregate Stair Improvements Costs. Stair Improvements Disbursement Balance shall mean that portion of the principal balance of the NBI Loan disbursed to pay the Aggregate Stair Improvements Costs, which portion remains outstanding. The Stair Improvernents 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 Stair Improvements Disbursement; and (b) the Aggregate Applied Amounts. Stair Improvements Disbursement Date shall mean the date of the Stair Improvements Disbursement. Stair Improvements Schedule shall mean the schedule for the acquisition and installation of the Stair Improvernents, which schedule is attached hereto as Exhibit A. Stair Improvements Specifications shall mean the specifications for: (a) the Stair Improvements, includinc specific identification and /or descriptions of the Stair Improvements; and (b) the warranties from manufacturers and suppliers to be obtained in connection with the acquisition and installation of the Stair Improvernents, which warranties shall: (i) run in favor of CRC; and (ii) constitute the Warranties. The Stair Improvernents Specifications are attached hereto as Exhibit A. Supplier shall mean the entity from which Developer will acquire the Stair Improvements. Z: \Documents \Shoup, Jenny \City of CarmeIW61 -MLPA \Installment Contracts\9th Amendment\IC- Limestone Stairs.wpd -4- 06Sep12 O 0 Surviving Supplier Obligations shall mean obligations of the Supplier under the Stair Improvements Acquisition Agreement (other than the obligations specified in the Warranties) that survive the acquisition and installation by Developer of the Stair Improvements. Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any encumbrance upon, the Stair Improvements, or any interest therein; or (b) any granting of a security interest in the Stair Improvements. Unamortized Balance shall mean the amount of the Stair Improvements Disbursement Balance on the maturity date of the NBI Loan; provided that, in the case of a Replacement Loan obtained after the maturity of a prior Replacement Loan, the Unamortized Balance shall be mean the amount of the Replacement Loan Balance on the maturity of such prior Replacement Loan. Warranties shall mean the warranties specified in the Stair Improvements Specifications to be obtained in connection with the acquisition and installation of the Stair Improvements, which warranties shall run in favor of CRC. 2. (3eneral Obligations. (a) NBI Loan Disbursement and Acquisition. Subject to the terms and conditions of this Contract: (i) Developer shall: (A) obtain an acknowledgment from NBI that NBI will make the Stair Improvements Disbursement; (B) after the Stair Improvements Disbursement: (1) acquire the Stair Improvements and the Warranties in accordance with the Stair Improvements Acquisition Agreement; and (2) install (or cause the installation of) the Stair 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 Stair Improvements Disbursement shall be used only to finance the Aggregate Stair Improvements Costs. If Developer obtains the Replacement Loan, then the proceeds of the Replacement Loan may be used to refinance the Unamortized Balance. (b) Stair 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 Stair 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. Stair Improvements Disbursement. (a) Date. The Stair Improvements Disbursement Date shall be established mutually by CRC and Developer. (b) Documents. In connection with the Stair 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 NBI reasonably may Z: \Document> \Shoup, Jenny \City of Carmel \NBI -tALPA \Installment Contracts \9th Amendment VC- Limestone Stairs.wpd -5- 06Sep12 0 m request to establish that: (A) the persons executing and delivering this Contract are empowered and authorized by all necessary action of CRC or Developer, as applicable; and (B) the: (1) execution and delivery of this Contract; and (2) performance by CRC or Developer, as applicable, hereunder; have been authorized by CRC or Developer, as applicable; and (ii) such other customary documents and instruments as CRC or Developer, as applicable, or NBI reasonably may request. 4. Conditions of Performance. (3) Developer Conditions. The obligations of Developer with respect to the Stair 1 improvements Disbursement shall be subject to the satisfaction, or waiver in writing, of the f Dllowing: (i) Developer, exercising commercially reasonable discretion, shall have approved the terms and conditions of the Stair 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 Stair Improvements Disbursement and the payment of the Purchase Price shall be subject to satisfaction, or \vaiver in writing, of the following: (i) CRC, exercising commercially reasonable discretion, shall have approved the terms and conditions of the Stair Improvements Disbursement; (ii) there shall be no breach of this Contract by Developer that Developer has failed to cure within the Cure Period; and (iii) all of the representations and warranties set forth in Subsection 5(b) shall be true and accurate in all respects. 5. Representations. (a) CRC. CRC represents and warrants to Developer that: (i) CRC shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Contract, the NBI Tri -Party Agreement, or the NBI Collateral Assignment; (ii) CRC is a public body organized and existing under the laws of the State of Indiana; (iii) CRC has the power 10: (A) enter into this Contract; and (B) perform its obligations hereunder; (iv) CRC has been authorized by proper action to: (A) execute and deliver this Contract; and (B) perform its obligations hereunder; and (v) this Contract, the NBI Tri -Party Agreement, and the NBI Collateral Assignment are the binding obligations of CRC. ( b) Developer. Developer represents and warrants to CRC that: (i) Developer shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Contract, the NBI Tri -Party Agreement, or the Loan Documents; (ii) Developer is a limited liability company organized and existing under the laws of the State of Indiana; t iii) Developer has the power to: (A) enter into this Contract; and (B) perform its obligations Z \Documents \Shoup, Jenny \City of Carmel \NBI -IALPA \Installment Contracts \9th Amendment \IC - Limestone Stairs.wpd -6- 06Sep12 0 D 0 f ereunder; (iv) Developer has been authorized by proper action to: (A) execute and deliver this Contract; and (B) perform its obligations hereunder; (v) this Contract, the NBI Tri -Party Agreement, and the Loan Documents are the legal, valid, and binding obligations of Developer; (vi) upon acquisition thereof pursuant to the Stair Improvements Acquisition Agreement, Developer shall have good and marketable title to the Stair Improvements, free End clear of all liens, claims, security interests, encumbrances, and restrictions, except for tiis Contract; and (vii) upon acquisition thereof pursuant to the Stair Improvements Acquisition Agreement, no financing statement covering all or any portion of the Stair 1-nprovements shall be on file in any public office. 6. Change Orders. If CRC desires to make a change to the Stair 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 Stair Improvements Costs; and (b) that, if implementing the Change Order Request would increase the Stair Improvements Costs, then CRC shall pay the amount of such increase. So long as CRC agrees to pay any increase in the Stair 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 Stair Improvements Acquisition Agreement; and (b) with respect to items of Stair Improvements, title to which has not been transferred to Developer. 7. Acquisition of Stair Improvements. (a) Acquisition Agreement. Developer shall: (i) enter into the Stair Improvements Acquisition Agreement; (ii) comply with all of its obligations under the Stair Improvements Acquisition Agreement; (iii) keep the Stair Improvements Acquisition Agreement in full force and effect, without any default by Developer thereunder; (iv) not amend or modify the Stair 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 Stair Improvements Acquisition Agreement; and (v) enforce the terms and conditions of the Stair 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 Stair 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 Stair Improvements, Developer shall collaterally assign the Stair Improvements Acquisition Agreement to CRC. (b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation of), all of the Stair Improvements in accordance with the Stair Improvements Acquisition Agreement, the Stair Improvements Schedule, and the Stair 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 Stair Improvements Costs exceed the proceeds of the Stair 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. Z: \Documents \Shoup, Jenny \City of Carmel \NBI -MLPA \Installment Contracts \9th Amendment \IC - Limestone Stairs.wpd -7- 06Sep12 m (o) 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), on or before the next occurring Payment Due Date, CRC hall pay to Developer the amount set forth in the current Projection Notice, adjusted by the zimount of the Offset/Addition Amount, as set forth in the Offset/Addition Notice. (d) Partial Prepayment. CRC may make a Partial Prepayment at any time by delivery of written notice to Developer at least 30 days in advance; provided that, if a Partial Prepayment is made more than 90 days before the maturity date of the Loan, then, in connection with such Partial Prepayment, CRC shall be obligated to pay any prepayment premium or penalty required by the Loan Documents (including, without limitation and if applicable, the "Prepayment Premium ", as defined in the NBI Loan Agreement). If CRC rnakes a Partial Prepayment, then Developer promptly shall pay the amount of such Partial Prepayment to the Lender for application against the Stair Improvements Disbursement E3alance 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 the Payment Period 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 Stair Improvements Disbursement or the Replacement Loan, as applicable, in full. 9. Acquisition -Full Prepayment. (a) Payment Period. CRC may exercise the Full Prepayment Option, to be effective at any time during the Payment Period, 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 ;hall 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 the Payment Period. 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 the Payment Period, then the Full Prepayment Closing Date shall not occur for at least 30 days after delivery of the Full Prepayment Notice. (b) 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 Stair Improvements Disbursement or the Replacement Loan, as applicable, in full. 10. Stair Improvements Closing. On the Stair Improvements Closing Date, Developer shall transfer to CRC title to the Stair 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 sa e with full warranties of title transferring the Stair 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. Z: \Documents \Shoup, Jenny \City of Carmel \NBI -IALPA \Installment Contracts \9th Amendment\ C- Limestone Stairs.wpd -9- 06Sep12 0 o (c) Inspection. At such time as Developer has acquired and installed (or caused the installation of) the Stair Improvements and obtained (and delivered to CRC) the Warranties, CRC shall check the Stair Improvements and the Warranties against the Stair Improvements Specifications. If CRC determines that the Stair Improvements and /or the Warranties do not conform to the Stair Improvements Specifications (reflecting any Change Orders), then: (i) CRC shall provide to Developer written notice thereof; and (ii) Developer shall address the non- conformity directly with the manufacturer and /or supplier, as applicable; provided that, if Developer incurs actual, reasonable, out -of- pocket expenses in connection with addressing the non - conformity, then, upon receipt of reasonable documentation evidencing such expenses, and in the ordinary course of CRC's business, CRC shall reimburse Developer for such expenses. (d) Statement. At such time that CRC confirms that the Stair Improvements and the Warranties conform to the Stair Improvements Specifications (reflecting any Change Orders), CRC shall execute a statement in favor of Developer stating that Developer has: (1) acquired and installed (or caused the installation of) the Stair Improvements, and obtained (and delivered to CRC) the Warranties, in accordance with the Stair Improvements Specifications (reflecting any Change Orders); and (ii) no further obligations with respect to the Stair Improvements and the Warranties (including that CRC shall be responsible for pursuing any claims under the Warranties). (e) Sole Warranties. CRC acknowledges that: (1) Developer is not making any independent warranties with respect to the manufacture and /or supply of the Stair Improvements; and (ii) although Developer is responsible for obtaining the Warranties, Developer is not responsible or liable for: (A) enforcing the Warranties; or (B) a failure by any manufacturer and /or supplier, as applicable, to honor the Warranties. 8. Acquisition- Payment. (a) Payment Period. (i) During the Payment Period, CRC shall pay the Installment Payments to Developer. Upon receipt thereof, Developer timely shall make the next payment due to the Lender pursuant to the Loan Documents; provided that, if an Installment Payment is delayed, then Developer shall make the payment due to the Lender promptly upon receipt of payment by CRC. (ii) The Installment Payments 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(b). (iii) Because the Installment Payments to which Developer is entitled may fluctuate, on the first day of the Payment Period, and thereafter within the period between the first and fifth business days of each month during the Payment Period, 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 Stair Improvements Disbursement or the Replacement Loan, as applicable (using the same method of calculation as the Lender) for the next month; and (B) the amount of the Installment Payment due and payable by CRC on or before the next occurring Payment Due Date. Z: \Document,> \Shoup, Jenny \City of Carmel \NBI -MMLPA \Installment Contracts \9th Amendment \IC - Limestone Stairs.wpd -8- 06Sepl2 11. Replacement Loan. So long as there is no continuing Event of Default by CRC hereunder, at the request of CRC, Developer shall exercise commercially reasonable, good faith efforts to obtain the Replacement Loan. Developer shall be deemed to have satisfied its obligation to exercise commercially reasonable, good faith efforts to obtain the Replacement Loan if Developer: (a) retains a qualified finance professional to aid Developer in obtaining the Replacement Loan; (b) cooperates in good faith with the efforts of such finance professional; (c) cooperates in good faith with the efforts of CRC in connection with obtaining the Replacement Loan; and (d) provides to CRC monthly reports with respect to the progress made in obtaining the Replacement Loan; provided that, if it appears that the Replacement Loan cannot be obtained, then such reports shall set forth any alternate re- financings that Developer or its finance professional has identified as possible substitutions for the Replacement Loan. If Developer obtains the Replacement Loan, then: (a) at the closing with respect thereto: (i) Developer and the Replacement Lender shall execute the Replacernent Loan Documents; and (ii) CRC, Developer, and the Replacement Lender shall execute the Replacernent Tri -Party Agreement; and (b) if Developer (as opposed to CRC) obtained the Replacement Loan, CFTC shall pay to Developer a fee in the amount of 1% of the Unamortized Balance. 12. Affirmative Obligations. Developer acknowledges and agrees that, at all times, Developer shall comply with the covenants and agreements set forth in this Section. (a) Developer shall comply with all Laws in: (i) the conduct of its business and other operations; and (ii) the performance of its obligations under this Contract, the Stair 1 nprovements Acquisition Agreement, and the Loan Documents. (b) Developer shall keep in full force and effect, without any violations by Developer, any and all filings or registrations with any Agency necessary in connection with: (i) the performance by Developer of its obligations under the Loan Documents; (ii) the acquisition of the Stair Improvements in accordance with this Contract and the Stair Improvements Acquisition Agreement; or (iii) the sale of the Stair 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 Stair Improvements in accordance with this Contract and the Stair Improvements Acquisition Agreement; and /or (iii) the sale of the Stair 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 Ind /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 Stair Improvements free from any and all I ens, claims, security interests, encumbrances, and restrictions, except for this Contract; and (ii) defend the Stair 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 Eiccepted 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 (H) the right to audit, make extracts from, and receive from Developer originals or accurate copies of, the Books and Records. Z: \Document> \Shoup, Jenny \City of Carmel \NBI -IALPA \Installment Contracts \9th Amendment\ C- Limestone Stairs.wpd -10- 06Sep12 D 13. Negative Covenants. Developer acknowledges and agrees that, at all times, Developer shall comply with the covenants and agreements set forth in this Section. (a) Except as approved by CRC: (i) there shall be no Transfer by Developer; and (ii) Developer shall not cause or permit any Transfer. The execution by CRC of the NBI Collateral Assignment shall not be deemed to be a consent by CRC to any Transfer. (b) Developer shall not: (i) file any financing statement covering all or any portion of the Stair 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 Ipnger 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 i:s 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 Stair Improvements or any part thereof. If any mechanic's, supplier's, or similar lien is filed against the Stair 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 Stair Improvements. 15. Preservation. If Developer fails to: (a) make any payment under the Loan Documents or the NBI Tri -Party Agreement when due; or (b) timely observe or perform any obligation to be observed or performed by it pursuant to the Loan Documents or the NBI Tri -Party Agreement; then: (a) CRC, at its option, but without: (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 Stair Improvements Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the Stair 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: \Document 3 \Shoup, Jenny \City of Carmel \NBI -PMLPA \Installment Contracts \9th Amendment \IC - Limestone Stairs.wpd 06Sep12 (j) Any portion of the Stair Improvements, or any substantial portion of the other 0 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. a D (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 Stair 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 Stair 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. I 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 believe the other party from performing any of its obligations under this Contract; or Iiii) 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 \NBI -1ALPA \Installment Contracts \9th Amendment \IC - Limestone Stairs.wpd -13- 06Sep12 16. E =vents of Default. Each of the following shall be deemed to be an "Event of Default" by Developer 0 or CRC, as applicable: 0 O (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 E=vent 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 NBI 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 NBI Tri -Party Agreement or the Replacement Tri -Party Agreement, then such failure by Developer shall not be an Event of Default. (c) Developer's failure to comply with the terms and conditions of the Stair 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 NBI Loan Agreement. (f) An assignment or delegation by either party of any of its rights or obligations hereunder, except as permitted by Section 19. (g) The liquidation or the sale, transfer, conveyance, assignment, pledge, or other disposition of substantially all of the assets of CRC or Developer. (h) CRC or Developer: (i) institutes or consents to any proceedings: (A) in insolvency or bankruptcy; (B) for the adjustment, liquidation, extension or composition, or arrangement of debts; or (C) for any other relief; under any Law with respect to the relief or reorganization of debtors; (ii) is adjudicated a bankrupt, files an answer admitting bankruptcy or insolvency, or in any manner is adjudged insolvent; (iii) makes an assignment for the benefit of creditors; or (iv) admits in writing an inability to pay debts as they become due. (i) Any proceeding: (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 \NBI -FALPA \Installment Contracts \9th Amendment\ C- Limestone Stairs.wpd -12- 06Sep12 o e 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 F.;hall 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 :;urvive the acquisition by CRC of the Stair 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, 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 NBI Tri -Party Agreement or the Replacement Tri -Party Agreement, as applicable. Notwithstanding any assignment as permitted by the NBI Tri -Party Agreement or the Replacement Tri -Party Agreement, as applicable: (a) CRC shall remain fully liable to perform all of its obligations under this Contract; and (b) a consent by Developer to any assignment shall not release CRC from such performance; provided that, if, in the case of an assignment to a City Agency as permitted by the NBI Tri -Party Agreement or the Replacement Tri -Party Agreement, as applicable, the obligations of CRC hereunder become general obligations of the City, then CRC shall be released from performance of any obligations that first arise after the date of such assignment. Any transfer of this Contract by operation of law (including, without limitation, a transfer as a result of merger, consolidation, or liquidation of CRC) shall constitute an assignment for purposes of this Contract. Developer shall not: (a) assign this Contract or any interest herein; or (b) delegate any duty or obligation hereunder; except as permitted by the NBI Tri -Party Agreement or the Replacement Tri -Party Agreement, as applicable; provided that, notwithstanding any assignment: (a) Developer shall remain fully liable to perform all of its obligations under this Contract; and (b) a consent by CRC to any assignment shall not release Developer from such performance. 20. Mutual Indemnification. Each of CRC and Developer shall indemnify and hold harmless Developer and CRC, respectively, from and against any and all Claims arising from, or connected with: (a) the negligence or wilful misconduct of: (i) CRC or Developer, respectively; or (ii) any party acting by, under, through, or on behalf of CRC or Developer, respectively; and /or (b) the: (i) breach by CRC or Developer, respectively, of any term or condition of this Contract, the NBI Tri -Party Agreement, or the Replacement Tri -Party Agreement; and (ii) the resulting exercise by Developer or CRC, respectively of its rights and remedies with respect to such default. 21. Miscellaneous. (a) Prior Agreements. Except in the case of the NBI Tri -Party Agreement, all prior representations and agreements by or between Developer and CRC with respect to the obligations set forth in this Contract are merged into, and expressed in, this Contract. This Contract shall not be amended, modified, or supplemented, except: (i) by a written agreement executed by both Developer and CRC; and (ii) as permitted by the NBI Tri -Party Agreement or the Replacement Tri -Party Agreement, as applicable. This Contract may be executed in separate counterparts, each of which shall be an original, but all of which together shall constitute a single instrument. Z: \Documents \Shoup, Jenny \City of Carmel \NBI -MLPA \Installment Contracts \9th Amendment \IC - Limestone Stairs.wpd -14- 06Sep12 D D (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 his 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 VIII 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 zind CRC. All indemnities set forth in this Contract shall survive the acquisition by CRC of he Stair 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 :.he 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 I tigated only in the state courts in Marion County, Indiana, or the federal courts with venue that includes Marion County, Indiana. Developer waives, to the extent permitted under applicable law: (i) the right to a trial by jury; and (ii) any right Developer may have to: (A) assert the doctrine of "forum non conveniens "; or (B) object to venue. (f) Time Periods. All references in this Contract to periods of days shall be construed to refer to calendar, not business, days, unless business days are specified. Notwithstanding inything 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 I. mitation, 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 :, atisfaction shall be extended for the same period. IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the day and year set orth above. Z: \Document> \Shoup, Jenny \City of Carmel \NBI -MLPA \Installment Contracts\9th Amendment \IC - Limestone Stairs.wpd -15- CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole member THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: William Hammer, President 06Sep12 D (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 Stair Improvements. (d) Authority. Each person executing this Contract represents and warrants that: (i) he or she has been authorized to execute and deliver this Contract by the entity for which he or she is signing; and (ii) this Contract is the valid and binding agreement of such entity, enforceable in accordance with its terms. (e) Suits. All proceedings arising in connection with this Contract shall be tried and litigated only in the state courts in Marion County, Indiana, or the federal courts with venue that includes Marion County, Indiana. Developer waives, to the extent permitted under applicable law: (i) the right to a trial by jury; and (ii) any right Developer may have to: (A) assert the doctrine of "forum non conveniens "; or (B) object to venue. (1) Time Periods. All references in this Contract to periods of days shall be construed to refer to calendar, not business, days, unless business days are specified. Notwithstanding anything to the contrary set forth herein, if either party is delayed in, or prevented from observing or performing any of its obligations hereunder, or satisfying any term or condition hereunder, in any case as the result of: (i) an act or omission of the other party; or (ii) any other cause that is not within the reasonable control of such party (including, without limitation, inclement weather, the unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers); then: (I) observation, performance, or satisfaction shall be excused for the period of such delay or prevention; and (ii) the dates, and other deadlines for observation, performance, and satisfaction shall be extended for the same period. IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the day and year set forth above. Z: \Document:, \Shoup, Jenny \City of Carmel \NBI -A1LPA \Installment Contracts \9th Amendment \I Limestone Stairs wpd -15- CARMEL THEATER DEVELOPMENT COMPANY, LLC By: REI Real Estate Services, LLC, sole member By: Jeffrey S. Sporleder, CFO THE CITY OF CARMEL. REDEVELOPMENT MMISSION By: William Hammer, Pre 06Sep12 0 D 0 EXHIBIT A PARCEL 77 Regional Performing Arts Center Installment Purchase Contract No. Verkler Inc. Retaining Wall & Stairs Description of Materials Limestone block retaining wall, stairs with lighting, urns and other miscellaneous items to serve the Center for Performing Arts Center and City Center. Z: \Documents \Shoup, Jenny \City of Carmel \NBI -IALPA \Installment Contracts \9th Amendment\ C- Limestone Stairs.wpd -16- 06Sep12