HomeMy WebLinkAboutRegions/Second Amendment to Installment Purchase Contract - PAC Furniture, Fixtures & Equipment - $796,278.950
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SECOND AMENDMENT TO INSTALLMENT PURCHASE CONTRACT
(PAC FF &E)
its Second Amendment to Installment Purchase Contract (PAC FF &E) (the "Amendment "),
executed this'lO day of April, 2011, by and between Carmel Theater Development Company, LLC (the
"Developer "), and The City of Carmel Redevelopment Commission ( "CRC "), Witnesses:
Recitals
W HEREAS, Developer and CRC have entered into that certain Installment Purchase Contract
(PAC FF &E) dated August 20, 2010 (the "Original Installment Contract ");
WHEREAS, the parties amended the Original Installment Contract pursuant to that certain
Amendment to Installment Purchase Contract (PAC FF &E) dated February 1, 2011 (the First Amendment ");
WHEREAS, the Original Installment Contract and the First Amendment, collectively, are the
"Installment Contract ")
WHEREAS, the parties seek to further amend the definition of FF &E; 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. Amendment. The definition of FF &E, as set forth in Section 1 of the Installment Contract, is
amended and restated in its entirety as follows:
"FF &E shall mean $815,659.72 of fixtures, furniture, and equipment for use in the PAC. The
FF &E is described in the FF &E Specifications."
2. 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.
3. 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.
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IN WITNESS W HEREOF, Developer and CRC have executed this Amendment as of the date
set forth above.
Z: \Documents \Shoup, Jenny \City of Carmel \Parcel 7 \PAC Regions Addl
10M- Regions and CT \FF &E \Second Amendment to FF &E IC.wpd
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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
William Hammer, President
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IN WITNESS WHEREOF, Developer and CRC have executed this Amendment as of the date
set forth above.
Z: \Documents \Shoup, Jenny \City of Carmel \Parcel 7\PAC Regions Addl
10M•Regions and CT\FFRE\Second Amendment to FFRE IC.wpd
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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
By:
Jeffrey S. Sporleder, CFO
THE CITY OF CARMEL
REDE E !AI • 'WENT Ce i ISSION
By: �I - %%�:r'I ����
William Hammer,P s t
•
AMENDMENT TO INSTALLMENT PURCHASE CONTRACT
(PAC FF &E)
This Amendment to Installment Purchase Contract (PAC FF &E) (the "Amendment"), executed
this I day of February, 2011, 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
(PAC FF &E), dated August 20, 2010 (the "Installment Contract ");
WHEREAS, the parties seek to amend the definition of FF &E; 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. Amendment. The definition of FF &E, as set forth in Section 1 of the Installment Contract, is
amended and restated in its entirety as follows:
"FF &E shall mean S790,477.10 of fixtures, furniture, and equipment for use in the PAC. The
FF &E is described in the FF &E Specifications."
2. 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.
3. 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.
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IN WITNESS WHEREOF, Developer and CRC have executed this Amendment as of the date
set forth above.
Z \Documents \Shoup, Jenny \City of Carmel \Parcel 7 \PAC Regions Addl
10M- Regions and CT\FF&E\Amendment to FF&E IC wpd
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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
By
Jeffr
,CFO
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.
Z \Documents \Shoup, Jenny \City of Carmel \Parcel 7\PAC Regions Addl
10M- Regions and CT\FF&EWmendment to FF&E IC wpd
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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
THE
REDEV L PMENT COMMISSION
By: U 00. JA 1v
William Hammer, P esi:ent
By:
Jeffrey S. Sporleder, CFO
CITY OF CARMEL
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INSTALLMENT PURCHASE CONTRACT
(PAC FF &E)
This Installment Purchase Contract (PAC FF &E) (the "Contract "), by and between Carmel
Theater Development Company, LLC (the "Developer ") , and The City of Carmel Redevelopment Commission
("CRC"), is executed this rZ1 i yday of August, 2010.
1. Definitions. Capitalized terms used in this Contract shall have the meanings ascribed to such terms
in this Section.
Agency shall mean any applicable: (a) governmental agency, board, commission, or department; or (b) other
judicial, administrative, or regulatory body.
Aggregate Applied Amounts shall mean, at any given time, the aggregate amount of that portion of the
Installment Payments that, by the terms of this Contract and the Loan Documents, is required to be applied to
amortize the FF &E Disbursement Balance or the Replacement Loan Balance, as applicable, over the
Amortization Period (or the remainder thereof, in the case of the exercise of the Extension Option).
Aggregate FF &E Costs shall mean the sum of: (a) the FF &E Costs; (b) the Lender Fees in connection with
the FF &E Disbursement; and (c) the Loan Costs for the FF &E Disbursement.
Amortization Period shall mean a period of 20 years, commencing on the first day of Payment Period 2.
Books and Records shall mean all of the books and records pertaining to the acquisition and installation of
the FF &E in accordance with this Contract and the FF &E 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 FF &E 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 FF &E 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 FF &E Disbursement Balance or the Replacement
Loan Balance, as applicable, as of the expiration of Payment Period 2; plus (b) interest thereon that has: (i)
accrued at the Loan Rate; and (ii) not been paid prior to the expiration of Payment Period 2 (stated alternatively,
interest that has accrued, but not been paid, as part of the Installment Payments).
Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition
of this Contract to be performed or observed by it receives notice specifying the nature of the failure; provided
that, if the failure is of such a nature that it cannot be remedied within 30 days, despite reasonably diligent
efforts, then the 30 day period shall be extended as reasonably may be necessary for the defaulting party to
remedy the failure, so long as the defaulting party: (a) commences to remedy the failure within the 30 day
period; and (b) diligently pursues such remedy to completion.
Default Rate shall mean the default rate of interest under the Loan Documents.
Event of Default shall have the meaning set forth in Section 16.
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Executive Director shall mean the Executive Director of CRC (currently Les Olds).
Extension Option shall mean the option to extend the term of the Regions Loan for a period of five years,
which option may be exercised on the terms and conditions set forth in Exhibit E.
FF &E shall mean $718,487.73 of fixtures, furniture, and equipment for use in the PAC. The FF &E is described
in the FF &E Specifications,
FF &E Acquisition Agreement shall mean an agreement entered into by Developer and the Supplier, which
agreement shall: (a) be consistent with the FF &E Schedule and the FF &E 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.
FF &E Closing Date shall mean the date of the closing with respect to the transfer of the FF &E. If such closing
has not occurred at such time as Payment Period 2 expires, then the FF &E Closing Date shall be the date on
which Payment Period 2 expires.
FF &E Costs shall rnean the actual, out -of- pocket costs incurred by Developer to acquire and install (or cause
the installation of) the FF &E in accordance with this Contract and the FF &E Acquisition Agreement.
FF &E Disbursement shall mean a disbursement by Regions of proceeds of the Regions Loan for the purposes
of funding the Aggregate FF &E Costs,
FF &E Disbursement Balance shall mean that portion of the principal balance of the Regions Loan disbursed
to pay the Aggregate FF &E Costs, which portion remains outstanding. The FF &E 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 FF &E
Disbursement; and (b) the Aggregate Applied Amounts.
FF &E Disbursement Date shall mean the date of the FF &E Disbursement.
FF &E Schedule shall mean the schedule for the acquisition and installation of the FF &E, which schedule is
attached hereto as Exhibit B.
FF &E Specifications shall mean the specifications for: (a) the FF &E, including specific identification and /or
descriptions of the FF &E; and (b) the warranties from manufacturers, fabricators, and suppliers to be obtained
in connection with the acquisition and installation of the FF &E, which warranties shall: (i) run in favor of CRC;
and (ii) constitute the Warranties. The FF &E Specifications are attached hereto as Exhibit C.
Fixed Rate Fees shall mean, if Developer exercises the Fixed Rate Option at the request of CRC: (a) the
regular (non - default) fees and costs actually paid by Developer to Regions in connection with such exercise;
and (b) the Interest Rate Agreement Obligations.
Fixed Rate Option shall mean the option to "fix ", "cap ", or "collar" the effective Loan Rate through a "swap"
or other mechanism in accordance with the terms and conditions of Exhibit D.
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) FF &E Closing Date.
Full Prepayment Notice shall mean a written notice pursuant to which CRC notifies Developer that it is
exercising the Full Prepayment Option.
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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 FF &E; in advance of the
expiration of Payment Period 2 by paying the Full Prepayment Price,
Full Prepayment Price shall mean the sum of: (a) the FF &E Disbursement Balance or the Replacement Loan
Balance, as applicable, on the Full Prepayment Closing Date; plus (b) interest thereon that has: (1) accrued at
the Loan Rate; and (i1) 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 FF &E Disbursement
Balance or the Replacement Loan Balance, as applicable.
Installment Payments shall mean the Payment Period 1 installments or the Payment Period 2 Installments,
as applicable.
Interest Rate Agreement shall mean any interest rate swap, basis swap, index swap or option, exchange, cap,
collar, option, floor, forward, futures contract, or other hedging agreement, arrangement or security, or
combination of the foregoing, however denominated (including any option to enter into the foregoing), entered
into in connection with the exercise of the Fixed Rate Option at the request of CRC, including, without limitation,
any: (a) ISDA Master Agreement; and (b) schedules, confirmations, and documents, and other confirming
evidence between the parties confirming transactions thereunder; all whether now existing or hereafter arising,
and in each case as amended, modified, or supplemented from time to time. Any of the foregoing may be
treated as an "Interest Rate Agreement ", without regard to whether such arrangement qualifies for hedge
accounting treatment under generally accepted accounting principles.
interest Rate Agreement Obligations shall mean any and all obligations: (a) whether absolute, contingent,
or otherwise; and (b) howsoever and whensoever (whether now or hereafter) created; arising, evidenced, or
acquired (including all renewals, extensions, and modifications thereof and substitutions therefore), under,-or
in connection with, any and all: (a) Interest Rate Agreements; and (b) cancellations, buy - backs, reversals,
terminations, or assignments of any Interest Rate Agreement,
Law shall mean any applicable federal, state, or local law, statute, ordinance, rule, or regulation, or any order
of decree of any Agency (including, without limitation, the Federal Reserve System and its Board of Governors).
Lender shall mean, as applicable, Regions or the Replacement Lender.
Lender Fees shall mean regular (non - default) lender fees, costs, and expenses actually incurred and paid by
Developer under the Loan Documents, including, without limitation and if applicable: (a) the fees incurred in
connection with the exercise of the Extension Option; and (b) the Fixed Rate Fees. To the extent that fees,
costs, and expenses are included in Lender Fees, such fees, costs, and expenses shall not be included in Loan
Costs.
Loan shall mean the Regions Loan or the Replacement Loan, as applicable.
Loan Costs shall mean the actual, out -of- pocket costs incurred by Developer: (a) in connection with the FF &E
Disbursement; and /or (b) to close Replacement Loan. To the extent that costs are included in Loan Costs,
such costs shall not be included in Lender Fees.
Loan Documents shall mean, as applicable, the Regions Loan Documents or the Replacement Loan
Documents.
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Loan Rate shall mean the per annum regular (non- default) rate of interest accruing on the FF &E Disbursement
Balance or the Replacement Loan Balance, as applicable, under the Loan Documents,
Offset/Addition Amount shall mean the amount by which a projected Installment Payment set forth in a
Projection Notice either exceeded or fell short of the amount of the Installment Payment to which Developer
actually was entitled for the quarter with respect to which such Projection Notice applied.
Offset/Addition Notice shall mean a written notice: (a) stating that the projected amount of an Installment
Payment set forth in a specified Projection Notice either exceeded or fell short of the amount of the Installment
Payment to which Developer actually was entitled for the quarter with respect to which such Projection Notice
applied; and (b) setting forth the Offset/Addition Amount.
PAC shall mean a world -class concert hall located on that certain real estate depicted on Exhibit A.
Partial Prepayment shall mean a payment of a portion of the outstanding principal balance of the FF &E
Disbursement or the Replacement Loan, as applicable, which payment is made by CRC in addition to an
Installment Payment.
Payment Due Date shall mean each April 7, July 7, October 7, and January 7 during Payment Period 1 and
Payment Period 2.
Payment Period 1 shall mean the period: (a) beginning on the FF &E Disbursement Date; and (b) ending on
April 7, 2012.
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the FF &E, the
amount of which shall be equal to: (a) the Loan Rate; multiplied by (b) the FF &E Disbursement Balance; and
multiplied by (c) 1/4,
Payment Period 2 shall mean the period: (a) beginning on April 8, 2012; and (b) ending on the maturity date
of the Regions Loan. if the Replacement Loan is obtained, then Payment Period 2 shall end on the maturity
date of the final Replacement Loan.
Payment Period 2 Installments shall mean quarterly installment payments for the purchase of the FF &E, the
amount of which shall be equal to an amount that will amortize the FF &E Disbursement Balance or the
Replacement Loan Balance, as applicable, over the Amortization Period (or the remainder thereof, in the case
of the exercise of the Extension Option) at the Loan Rate.
Projection Notice shall mean a written notice setting forth Developer's reasonable projection of the amount
of the next due Installment Payment.
Purchase Price shall mean the sum of all Installment Payments plus the Closing Payment.
Regions shall mean Regions Bank.
Regions Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security
Agreement executed by and among Developer, CRC, and Regions, and dated July 22, 2010.
Regions Loan shall mean the loan made by Regions to Developer in the original principal amount of
$10, 000, 000.00.
Regions Loan Agreement shall mean that certain Loan Agreement (Equipment and Improvements) executed
by and between Developer and Regions, and dated July 22, 2010.
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Regions Loan Documents shall mean the documents evidencing and securing the Regions Loan, including,
without limitation, the Regions Loan Agreement, the Regions Note, and the Regions Collateral Assignment.
Regions Note shall mean that certain Promissory Note executed by Developer in favor of Regions, and dated
July 22, 2010.
Regions Tri -Party Agreement shall mean that certain Tri -Party Agreement executed by and among
Developer, CRC, and Regions, and dated July 22, 2010.
Replacement Lender shall mean the financial institution making the Replacement Loan.
Replacement Loan shall mean a financing (or a series of financings) comprised of a loan (or a series of loans)
to Developer, the proceeds of which shall be used to refinance the Unamortized Balance, which loan (or series
of loans) shall provide for: (a) a term that does not extend beyond the expiration of the Amortization Period;
(b) interest at a rate accepted by CRC; (c) amortization of the Unamortized Balance over the remainder of the
Amortization Period at the Loan Rate; and (d) quarterly payments that change if and when the Loan Rate
changes, subject to the exercise of the Fixed Rate Option.
Replacement Loan Balance shall mean that portion of the outstanding principal balance of the Replacement
Loan disbursed to pay: (a) the Unamortized Balance; (b) Lender Fees with respect to the Replacement Loan;
and (c) Loan Costs with respect to the Replacement Loan. The Replacement Loan Balance shall be reduced
by: (a) any Partial Prepayments that have been made by CRC to Developer, even if the Lender has not yet
applied any such Partial Prepayments to reduce the outstanding principal balance of the Replacement Loan;
and (b) the Aggregate Applied Amounts.
Replacement Loan Documents shall mean the documents evidencing and securing the Replacement Loan.
Replacement Tri -Party Agreement shall mean an agreement by and among CRC, Developer, and the
Replacement Lender replacing the Regions Tri -Party Agreement, to the extent that the Regions Tri -Party
Agreement applies to the FF &E Disbursement, which agreement shall contain terms and conditions
substantially similar to the Regions Tri -Party Agreement, modified as necessary to reflect the Replacement
Loan.
Supplier shall mean the entity from which Developer will acquire the FF &E.
Surviving Supplier Obligations shall mean obligations of the Supplier under the FF &E Acquisition Agreement
(other than the obligations specified in the Warranties) that survive the acquisition and installation by Developer
of the FF &E.
Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon, the FF &E or any interest therein; or (b) any granting of a security interest in the FF &E.
Unamortized Balance shall mean the amount of the FF &E Disbursement Balance on the maturity date of the
Regions Loan, as the same may be extended by the exercise of the Extension Option; provided that, in the
case of a Replacement Loan obtained after the maturity of a prior Replacement Loan, the Unamortized Balance
shall be mean the amount of the Loan Balance on the maturity of such prior Replacement Loan.
Warranties shall mean the warranties specified in the FF &E Specifications to be obtained in connection with
the acquisition and installation of the FF &E, which warranties shall run in favor of CRC.
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2. General Obligations.
(a) Regions Loan Disbursement and Acquisition. Subject to the terms and conditions of
this Contract:
(i) Developer shall: (A) obtain an acknowledgment from Regions that
Regions will make the FF &E Disbursement; (B) after the FF &E
Disbursement: (1) acquire the FF &E and the Warranties in accordance with
the FF &E Acquisition Agreement; and (2) install (or cause the installation of)
the FF &E; (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
the FF &E Disbursement shall be used only to finance the Aggregate
FF &E Costs. If Developer obtains the Replacement Loan, then the proceeds
of the Replacement Loan may be used to refinance the Unamortized
Balance.
(b) Fixed Rate Option. Upon receipt of written request by CRC, Developer shall exercise
the Fixed Rate Option; provided that, Developer shall not exercise the Fixed Rate Option
unless requested by CRC,
(c) FF &E Transfer. Subject to the terms and conditions of this Contract: (1) Developer
shall transfer to CRC; and (ii) CRC shall purchase from Developer; title to the FF &E 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. FF &E Disbursement.
(a) Date. The FF &E Disbursement Date shall be established mutually by CRC and
Developer.
(b) Documents. In connection with the FF &E Disbursement, CRC and/or Developer, as
applicable, shall execute and deliver:
(i) copies of such resolutions, consents, authorizations, and other
evidence as CRC or Developer, as applicable, or Regions reasonably may
request to establish that: (A) the persons executing and delivering this
Contract are empowered and authorized by all necessary action of CRC or
Developer, as applicable; and (B) the: (1) execution and delivery of this
Contract; and (2) performance by CRC or Developer, as applicable,
hereunder; have been authorized by CRC or Developer, as applicable; and
(ii) such other customary documents and instruments as CRC or
Developer, as applicable, or Regions reasonably may request.
4. Conditions of Performance.
(a) Developer Conditions. The obligations of Developer with respect to the FF &E
Disbursement shall be subject to the satisfaction, or waiver in writing, of the following:
081810;1101;L2:PAC FF&E- Regions and CT.wpd
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approved the terms and conditions of the FF &E Disbursement;
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(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 FF &E Disbursement and
the payment of the Purchase Price shall be subject to satisfaction, or waiver in writing, of the
following:
(1) CRC, exercising commercially reasonable discretion, shall have
approved the terms and conditions of the FF &E Disbursement;
(ii) there shall be no breach of this Contract by Developer that Developer
has failed to cure within the Cure Period; and
(iii) all of the representations and warranties set forth in Subsection 5(b)
shall be true and accurate in all respects.
5. Representations.
(a) CRC. CRC represents and warrants to Developer that: (i) CRC shall not enter into any
contracts or undertakings that would limit, conflict with, or constitute a breach of this Contract,
the Regions Tri -Party Agreement, or the Regions Collateral Assignment; (ii) CRC is a public
body organized and existing under the laws of the State of Indiana; (iii) CRC has the power to:
(A) enter into this Contract; and (B) perform its obligations hereunder; (iv) CRC has been
authorized by proper action to: (A) execute and deliver this Contract; and (8) perform its
obligations hereunder; and (v) this Contract, the Regions Tri -Party Agreement, and the
Regions Collateral Assignment are the legal, valid, and binding obligations of CRC.
(b) Developer. Developer represents and warrants to CRC that: (1) Developer shall not
enter into any contracts or undertakings that would limit, conflict with, or constitute a breach
of this Contract, the Regions Tri -Party Agreement, or the Loan Documents; (ii) Developer is
a limited liability company organized and existing under the laws of the State of Indiana;
(iii) Developer has the power to: (A) enter into this Contract; and (B) perform its obligations
hereunder; (iv) Developer has been authorized by proper action to: (A) execute and deliver this
Contract; and (B) perform its obligations hereunder; (v) this Contract, the Regions Tri -Party
Agreement, and the Loan Documents are the legal, valid, and binding obligations of
Developer; and (vi) upon acquisition thereof pursuant to the FF &E Acquisition Agreement: (A)
Developer shall have good and marketable title to the FF &E, free and clear of all liens, claims,
security interests, encumbrances, and restrictions, except for this Contract; and (6) no
financing statement covering all or any portion of the FF &E shall be on file in any public office.
6. Change Orders. if CRC desires to make a change to the FF &E 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 FF &E Costs; and (b) that, if
implementing the Change Order Request would increase the FF &E Costs, then CRC shall pay the amount of
such increase. So long as CRC agrees to pay any increase in the FF &E Costs that results from the proposed
change, the Change Order Request shall be deemed to be approved by Developer. If a Change Order Request
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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 FF &E
Acquisition Agreement; and (b) with respect to items of the FF &E, title to which has not been transferred to
Developer.
7. Acquisition of FF&E.
(a) Acquisition Agreement. Developer shall: (i) enter into the FF &E Acquisition
Agreement; (ii) comply with all of its obligations under the FF &E Acquisition Agreement; (iii)
keep the FF &E Acquisition Agreement in full force and effect, without any default by Developer
thereunder; (iv) not amend or modify the FF &E 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 FF &E Acquisition Agreement; and
(v) enforce the terms and conditions of the FF &E 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 FF &E 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 FF &E, Developer shall collaterally assign the FF &E
Acquisition Agreement to CRC.
(b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation
of), all of the FF &E in accordance with the FF &E Acquisition Agreement, the FF &E Schedule,
and the FF &E 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 FF &E Costs exceed the proceeds of the
FF &E Disbursement, then, upon receipt of reasonable documentation evidencing such excess,
and in the ordinary course of CRC's business, CRC shall pay to Developer the amount of such
excess.
(c) Inspection. At such time as Developer has acquired and installed (or caused the
installation of) the FF &E and obtained (and delivered to CRC) the Warranties. CRC shall
check the FF &E and the Warranties against the FF &E Specifications. If CRC determines that
the FF &E and /or the Warranties do not conform to the FF &E Specifications (reflecting any
Change Orders), then: (i) CRC shall provide to Developer written notice thereof; and
(ii) Developer shall address the non - conformity directly with the manufacturer, fabricator,
and /or supplier, as applicable; provided that, if Developer incurs actual, reasonable, out -of-
- pocket expenses in connection with addressing the non - conformity, then, upon receipt of
reasonable documentation evidencing such expenses, and in the ordinary course of CRC's
business, CRC shall reimburse Developer for such expenses.
(d) Statement. At such time that CRC confirms that the FF &E and the Warranties
conform to the FF &E 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 FF &E, and obtained (and delivered to CRC) the Warranties, in
accordance with the FF &E Specifications (reflecting any Change Orders); and (ii) no further
obligations with respect to the FF &E and the Warranties (including that CRC shall be
responsible for pursuing any claims under the Warranties).
081810;1 101;L2;PAC FF8E- Regions and CT wpd
(e) Sole Warranties. CRC acknowledges that: (i) Developer is not making any
independent warranties with respect to the manufacture, fabrication, and/or supply of the
FF &E; and (11) although Developer is responsible for obtaining the Warranties, Developer is
not responsible or liable for: (A) enforcing the Warranties; or (B) a failure by any manufacturer,
fabricator, and /or supplier, as applicable, to honor the Warranties.
8. Acquisition- Payment.
(a) Payment Period 1.
(1) During Payment Period 1, CRC shall pay the
Payment Period 1 Installments to Developer. Upon receipt thereof,
Developer timely shall make the next payment due to the Lender pursuant to
the Loan Documents; provided that, if a Payment Period 1 installment
Payment is delayed, then Developer shall make the payment due to the
Lender promptly upon receipt of payment by CRC.
(ii) The Payment Period 1 Installments shall be: (A) in the amount
determined pursuant to Subsection 8(a)(iii); (8) paid in arrears, on or before
each Payment Due Date; and (C) subject to adjustment pursuant to
Subsection 8(c).
(iii) Because the amount of the Payment Period 1 Installments to which
Developer is entitled may fluctuate, on the FF &E Disbursement Date, and
thereafter within the period between the first and fifth business days of each
March, June, September, and December during Payment Period 1,
Developer shall deliver to CRC a Projection Notice. The amount set forth in
the Projection Notice shall be: (A) based on Developer's reasonable
projection of the interest payment on the FF &E Disbursement or the
Replacement Loan, as applicable (using the same method of calculation as
the Lender) for the next quarter; and (B) the amount of the Payment
Period 1 Installment due and payable by CRC on or before the next occurring
Payment Due Date.
(b) Payment Period 2.
(i) During Payment Period 2, CRC shall pay the Payment
Period 2 Installments to Developer. Upon receipt thereof, Developer timely
shall make the next payment due to the Lender pursuant to the Loan
Documents; provided that, if a Payment Period 2 Installment is delayed, then
Developer shall make the payment due to the Lender promptly upon receipt
of payment by CRC .
(ii) The Payment Period 2 Installments shall be: (A) in the amount
determined pursuant to Subsection 8(b)(iii); (B) paid in arrears, on or before
each Payment Due Date; and (C) subject to adjustment pursuant to
Subsection 8(c).
(iii) Because the Payment Period 2 Installments to which Developer is
entitled may fluctuate, on the first day of Payment Period 2, and thereafter
within the period between the first and fifth business days of each March,
June, September, and December during Payment Period 2, Developer shall
081810,1101;L2;PAC FF&E- Regions and CT.wpa
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 FF &E Disbursement or the
Replacement Loan, as applicable (using the same method of calculation as
the Lender) for the next quarter; and (B) the amount of the Payment Period 2
Installment due and payable by CRC on or before the next occurring Payment
Due Date.
(c) Adjustment. If the projected amount set forth in a Projection Notice was more or less
than the actual amount to which Developer was entitled on the Payment Due Date with respect
to which such Projection Notice applied, then, with the next Projection Notice, Developer shall
deliver to CRC an Offset/Addition Notice. Notwithstanding the terms and conditions of
Subsection 8(a)(iii) or 8(b)(iii), as applicable, on or before the next occurring Payment Due
Date, CRC shall pay to Developer the amount set forth in the current Projection Notice,
adjusted by the amount of the Offset/Addition Amount, as set forth in the Offset/Addition
Notice.
(d) Partial Prepayment. CRC may make a Partial Prepayment at any time; provided that,
if a Partial Prepayment is made more than 90 days before the maturity date of the Loan, then,
in connection with such Partial Prepayment, CRC shall be obligated to pay any prepayment
premium or penalty required by the Loan Documents. If CRC makes a Partial Prepayment,
then Developer promptly shall pay the amount of such Partial Prepayment to the Lender for
application against the FF &E Disbursement Balance or the Replacement Loan Balance, as
applicable.
(e) Closing Payment. Subject to the exercise by CRC of the Full Prepayment Option, on
the date on which Payment Period 2 expires, CRC shall pay the Closing Payment to
Developer, thereby paying off the Purchase Price in full. Promptly thereafter, Developer shall
pay the Closing Payment to the Lender, thereby paying off the FF &E Disbursement or the
Replacement Loan, as applicable, in full.
9. Acquisition -Full Prepayment.
(a) Payment Period 1. CRC may exercise the Full Prepayment Option, to be effective at
any time during Payment Period 1, by delivery of the Full Prepayment Notice. Within ten days
after receipt by Developer of the Full Prepayment Notice, CRC and Developer, each acting
reasonably and in accordance with the Loan Documents, shall agree on the Full Prepayment
Closing Date.
(b) Payment Period 2. CRC may exercise the Full Prepayment Option, to be effective at
any time during Payment Period 2, by delivery of the Full Prepayment Notice. Notwithstanding
the foregoing, if there is a Replacement Loan, then, to the extent that the Replacement Loan
Documents prohibit the exercise of the Full Prepayment Option, CRC shall not have the right
to exercise the Full Prepayment Option so long as such prohibition is in effect; provided that,
regardless of any such prohibition in the Replacement Loan Documents, CRC shall have the
right to exercise the Full Prepayment Option during the 90 days immediately preceding the
expiration of Payment Period 2. Within ten days after receipt by Developer of the Full
Prepayment Notice, CRC and Developer, each acting reasonably, shall agree on the Full
Prepayment Closing Date; provided that, if the Full Prepayment Notice is delivered more than
90 days prior to the expiration of Payment Period 2, then the Full Prepayment Closing Date
shall not occur for at least 30 days after delivery of the Full Prepayment Notice.
081810,1101;L2;PAC FF &E- Regions and CT.wpd
-�8-
(c) Full Prepayment Price. If CRC properly exercises the Full Prepayment Option, then,
in lieu of the remainder of the Purchase Price, CRC shall pay the Full Prepayment Price.
Promptly thereafter, Developer shall pay the Full Prepayment Price to the Lender, thereby
paying off the FF &E Disbursement or the Replacement Loan, as applicable, in full.
10. FF &E Closing. On the FF &E Closing Date, Developer shall transfer to CRC title to the FF &E. 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 FF &E to CRC free of all liens, security interests, and equipment leaseholds, which bill cif sale
shall be in a form agreed to by the parties in the exercise of their reasonable discretion.
11. Options.
(a) Fixed Rate. So long as: (i) there is no continuing Event of Default by CRC hereunder;
(ii) CRC has not: (A) defaulted under the Regions Tri -Party Agreement or the Regions
Collateral Assignment beyond applicable cure periods; or (8) taken any other action; the result
of which is that Developer no longer has the right to exercise the Fixed Rate Option; and
(iii) the Fixed Rate Option remains available under the Loan Documents; Developer, upon
receipt of written request and otherwise in accordance with the Loan Documents, shall
exercise the Fixed Rate Option.
(b) Extension. So long as: (i) there is no continuing Event of Default by CRC hereunder;
(ii) CRC has not: (A) defaulted under the Regions Tri -Party Agreement or the Regions
Collateral Assignment beyond applicable cure periods; or (B) taken any other action; the result
of which is that Developer no longer has the right to exercise the Extension Option; and (iii) the
Extension Option remains available under the Loan Documents; Developer, upon receipt of
written request and otherwise in accordance with the Loan Documents, shall exercise the
Extension Option.
(c) Replacement Loan. So long as there is no continuing Event of Default by CRC
hereunder, at the request of CRC, Developer shall exercise commercially reasonable, good
faith efforts to obtain the Replacement Loan. Developer shall be deemed to have satisfied
its obligation to exercise commercially reasonable, good faith efforts to obtain the
Replacement Loan if Developer: (i) retains a qualified finance professional to aid Developer
in obtaining the Replacement Loan; (11) cooperates in good faith with the efforts of such finance
professional; (iii) cooperates in good faith with the efforts of CRC in connection with obtaining
the Replacement Loan; and (iv) provides to CRC monthly reports with respect to the progress
made in obtaining the Replacement Loan; provided that, if it appears that the Replacement
Loan cannot be obtained, then such reports shall set forth any alternate re- financings that
Developer or its finance professional has identified as possible substitutions for the
Replacement Loan. If Developer obtains the Replacement Loan, then: (i) at the closing with
respect thereto: (A) Developer and the Replacement Lender shall execute the Replacement
Loan Documents; and (B) CRC, Developer, and the Replacement Lender shall execute the
Replacement Tri -Party Agreement; and (ii) if Developer (as opposed to CRC) obtained the
Replacement Loan, CRC shall pay to Developer a fee in the amount of 1% of the Unamortized
Balance.
12. Affirmative Obligations. Developer acknowledges and agrees that, at all times, Developer shall
comply with the covenants and agreements set forth in this Section.
081810,1101;L2,PAC FF &E- Regions and CT.wpd
(a) Developer shall comply with all Laws in: (1) the conduct of its business and other
operations; and (ii) the performance of its obligations under the FF &E Acquisition Agreement,
this Contract, and the Loan Documents,
(b) Developer shall keep in full force and effect, without any violations by Developer, any
and all filings or registrations with any Agency necessary in connection with: (i) the
performance by Developer of its obligations under the Loan Documents; (ii) the acquisition of
the FF &E in accordance with this Contract and the FF &E Acquisition Agreement; or (ill) the
sale of the FF &E 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 FF &E in accordance with this Contract and the FF &E Acquisition Agreement;
and /or (iii) the sale of the FF &E to CRC in accordance with this Contract; then Developer shall:
(1) notify CRC immediately in writing; (ii) prepare and submit to CRC for its reasonable
approval a written plan for addressing and /or responding to such proceeding, inquiry, or
investigation; and (iii) address and /or respond to such proceeding, inquiry, or investigation in
accordance with the plan approved by CRC.
(d) At all times, Developer shall: (1) keep the FF &E free from any and all liens, claims,
security interests, encumbrances, and restrictions, except for this Contract; and (ii) defend the
FF &E against the claims and demands of others,
(e) Developer shall keep and maintain true, correct, accurate, and complete Books and
Records. All Books and Records shall be kept and maintained in accordance with generally
accepted accounting principles consistently applied.
(f) CRC and its attorneys, accountants, representatives, architects, engineers, and
consultants at all reasonable times shall have: (i) free access to, and rights of inspection of,
the Books and Records; and (11) the right to audit, make extracts from, and receive from
Developer originals or accurate copies of, the Books and Records.
13. Negative Covenants. Developer acknowledges and agrees that, at all times, Developer shall comply
with the covenants and agreements set forth in this Section.
(a) Except as approved by CRC: (i) there shall be no Transfer by Developer; and
(ii) Developer shall not cause or permit any Transfer. The execution by CRC of the Regions
Collateral Assignment shall not be deemed to be a consent by CRC to any Transfer.
(b) Developer shall not: (1) file any financing statement covering all or any portion of the
FF &E in any public office, except financing statements in favor of the Lender; or (ii) cause or
permit any such financing statement to be filed.
(c) Developer shall not: (i) change its name; (ii) merge into, or consolidate with, any other
entity, or otherwise reorganize; (iii) permit any change in the members of Developer or the
percentage of ownership in Developer, if the effect of such change is that Developer no longer
is controlled by, or under common control with, REI Real Estate Services, LLC; or (iv) fail to
promptly notify CRC in writing of any change in the members of Developer or the percentage
of ownership in Developer.
081810 :1101;L2;PAC FF&E- Regions and CT.wpd
(d) Developer shall not: (1) amend, modify, or restate the articles of organization or
operating agreement of Developer; (ii) cause or permit any such amendment, modification,
or restatement; or (iii) be dissolved, wound up, or converted to another type of entity, or have
its existence as a limited liability company terminated.
(e) Developer shall not: (i) sell, convey, or transfer to any person any interest in
Developer; (ii) otherwise encumber, pledge, or assign any interest in Developer; (iii) grant any
security interest in any interest in Developer; or (iv) cause or permit any such sale,
conveyance, transfer, encumbrance, pledge, assignment, or grant of security interest.
(f) Developer shall not make or permit to be made any material change in the character
of its business as currently conducted.
14. Liens /Encumbrances. Neither Developer nor CRC shall suffer or cause the filing of any mechanic's,
supplier's, or similar lien against the FF &E, or any part thereof. If any mechanic's, supplier's, or similar lien is
filed against the FF &E, 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 FF &E.
15. Preservation. If Developer fails to: (a) make any payment under the Loan Documents or the Regions
Tri -Party Agreement when due; or (b) timely observe or perform any obligation to be observed or performed
by it pursuant to the Loan Documents or the Regions Tri -Party Agreement; then: (a) CRC, at its option, but
without: (i) any duty or obligation to do so; or (ii) any waiver or release of any default by Developer; may make
any such payment or observe or perform any such obligation as necessary or appropriate to protect or defend:
(i) the FF &E Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the FF &E and /or the
interest of Developer therein; and (b) Developer shall pay, upon receipt of written demand, all reasonable costs
and expenses incurred by CRC in connection with making any such payment or observing or performing any
such obligation (including, without limitation, reasonable attorneys' fees).
16. Events of Default. Each of the following shall be deemed to be an "Event of Default" by Developer
or CRC, as applicable:
(a) CRC's failure to pay any Installment Payment when due; provided that, in the case of
the first two such failures in any given 12 month period, such failure shall not constitute an
Event of Default unless such failure continues for five business days after Developer delivers
written notice thereof to CRC.
(b) Developer's failure to comply with the terms and conditions of the Loan Documents;
provided that, if such failure is due to CRC's failure to pay any: (i) Installment Payment or the
Closing Payment; or (ii) other amount payable by CRC to Developer in connection with the
Regions Loan; when due, then such failure shall not be an Event of Default unless and until
the failure by Developer continues for a period of five business days after CRC pays to
Developer the delinquent Installment Payment, Closing Payment, or other amount, together
with any late fees for which the Loan Documents provide. If Developer's failure to comply with
the terms and conditions of the Loan Documents is due to CRC's failure to satisfy its
obligations under the Regions Tri -Party Agreement or the Replacement Tri -Party Agreement,
then such failure by Developer shall not be an Event of Default.
081810;1101;L2 :PAC FF&E- Regions and CT.wpd
(c) Developer's failure to comply with the terms and conditions of the FF &E 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: (1) 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 (11) with respect to any other
obligation, if such failure is not cured within the Cure Period.
(e) Any: (i) Transfer by Developer, except as expressly permitted in this Contract or any
of the Loan Documents; or (ii) breach or violation of any covenant or agreement set forth in
Subsection 9(b), 9(c), 9(d), or 9(f) of the Regions Loan Agreement.
(f) An assignment or delegation by either party of any of its rights or obligations
hereunder, except as permitted by Section 19.
(g) The liquidation or the sale, transfer, conveyance, assignment, pledge, or other
disposition of substantially all of the assets of CRC or Developer.
(h) CRC or Developer: (i) institutes or consents to any proceedings: (A) in insolvency or
bankruptcy; (8) for the adjustment, liquidation, extension or composition, or arrangement of
debts; or (0) 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: (1) 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.
(i) Any portion of the FF &E, or any substantial portion of the other property or assets of
CRC or Developer, is placed in the hands of any receiver, trustee, or other officer or
representative of any court, and such receiver, trustee, or other officer or representative is not
discharged or dismissed within 60 days, or CRC or Developer consents, agrees, or acquiesces
to the appointment of any such receiver, trustee, or other officer or representative.
(k) Any lienholder or creditor shall initiate an action to enforce or foreclose a lien or
security interest on all or any portion of the FF &E, whether such security interest or lien is
superior, equal, or junior to the security interest or lien held therein by the Lender.
(1) The making or filing of any levy or execution on, or any seizure, attachment, or
garnishment of, any portion of the FF &E 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: •
081810 :1101;L2;PAC FF&E•Regians and CT.wpd
(1) if the defaulting party has failed to perform any of its obligations under
this Contract, enjoining the failure or specifically enforcing the performance
of such obligation;
(ii) if the defaulting party has failed to perform any of its obligations under
this Contract (other than the obligation to pay any amounts due to the
non - defaulting party), performing the obligation that the defaulting party has
failed to perform; provided that the performance by the non - defaulting party
of such obligation shall not be construed to be a waiver of the Event of
Default; and
(iii) if CRC is the defaulting party, then Developer may accelerate
payment of the Full Prepayment Price, which would have the same effect as
if CRC had exercised the Full Prepayment Option; provided that the Full
Prepayment Closing Date shall occur on a date designated by Developer.
(b) No Waiver. Neither: (i) a waiver by either party of an Event of Default; nor (ii) an
exercise by either party of any right or remedy with respect to an Event of Default; shall be
deemed either to: (i) constitute a waiver of any subsequent Event of Default; (ii) release or
relieve the other party from performing any of its obligations under this Contract; or
(iii) constitute an amendment or modification of this Contract. if Developer accepts any
Installment Payments during the continuance of an Event of Default by CRC, then such
acceptance shall not be construed as a waiver of: (i) such Event of Default; or (11) 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: (1) by reason of any Event of Default by the
defaulting party; and /or (ii) in connection with exercising its rights and remedies with respect
to any Event of Default; together with interest thereon at the Default Rate. All such amounts
shall be due and payable by the defaulting party immediately upon receipt of written demand
from the other party, and the obligation of the defaulting party to pay such amounts shall
survive the acquisition by CRC of the FF &E.
18. Notice. Any notice required or permitted to be given by either party to this Contract shall be in writing,
and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by facsimile,
with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of
receipt, addressed as follows: to Developer at 11711 North Pennsylvania Street, Suite 200, Carmel, Indiana
46032, Attn: Jeffrey Sporleder, Facsimile: 317 - 573 -6055; and to CRC at 30 West Main Street, Suite 220,
Carmel, Indiana 46032, Facsimile: 317 - 844 -3498, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., Wallack
Somers & Haas, PC, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317- 231 -9900.
Either party may change its address for notice from time to time by delivering notice to the other party as
provided above. All Installment Payments shall be delivered to Developer at the address set forth in, or
specified in accordance with, this Section.
19. Assignment. CRC shall not: (a) assign this Contract or any interest herein; or (b) delegate any duty
or obligation hereunder; except as permitted by the Regions Tri -Party Agreement or the Replacement Tri -Party
Agreement, as applicable. Notwithstanding any assignment as permitted by the Regions 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
081810•1101t2;PAC FF&E- Regions and CT.wpd
such performance; provided that, if, in the case of an assignment to a City Agency as permitted by the Regions
Tri -Party Agreement or the Replacement Tri -Party Agreement, as applicable, the obligations of CRC hereunder
become general obligations of the City, then CRC shall be released from performance of any obligations that
first arise after the date of such assignment. Any transfer of this Contract by operation of law (including, without
limitation, a transfer as a result of merger, consolidation, or liquidation of CRC) shall constitute an assignment
for purposes of this Contract. Developer shall not: (a) assign this Contract or any interest herein; or
(b) delegate any duty or obligation hereunder; except as permitted by the Regions Tri -Party Agreement or the
Replacement Tri -Party Agreement, as applicable; provided that, notwithstanding any assignment: (a) Developer
shall remain fully liable to perform all of its obligations under this Contract; and (b) a consent by CRC to any
assignment shall not release Developer from such performance.
20. Mutual Indemnification. Each of CRC and Developer shall indemnify and hold harmless Developer
and CRC, respectively, from and against any and ail Claims arising from, or connected with: (a) the negligence
or wilful misconduct of: (1) CRC or Developer, respectively; or (ii) any party acting by, under, through, or on
behalf of CRC or Developer, respectively; and /or (b) the: (i) breach by CRC or Developer, respectively, of any
term or condition of this Contract, the Regions Tri -Party Agreement, or the Replacement Tri -Party Agreement;
and (ii) the resulting exercise by Developer or CRC, respectively, of its rights and remedies with respect to such
default.
21. Miscellaneous.
(a) Prior Agreements, Except in the case of the Regions Tri -Party Agreement, all prior
representations and agreements by or between Developer and CRC with respect to the
obligations set forth in this Contract are merged into, and expressed in, this Contract. This
Contract shall not be amended, modified, or supplemented, except: (1) by a written agreement
executed by both Developer and CRC; and (ii) as permitted by the Regions Tri -Party
Agreement or the Replacement Tri -Party Agreement, as applicable. This Contract may be
executed in separate counterparts, each of which shall be an original, but all of which together
shall constitute a single instrument.
(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
FF &E.
(d) Authority. Each person executing this Contract represents and warrants that: (i) he
or she has been authorized to execute and deliver this Contract by the entity for which he or
she is signing; and (ii) this Contract is the valid and binding agreement of such entity,
enforceable in accordance with its terms.
(e) Suits. All proceedings arising in connection with this Contract shall be tried and
litigated only in the state courts in Hamilton County, Indiana, or the federal courts with venue
that includes Hamilton County, Indiana. Developer waives, to the extent permitted under
081 810,1 101;1.2: PAC FF &E- Regions and CT wpd
:1 :
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 (8) object to venue.
(f) Time Periods. All references in this Contract to periods of days shall be construed to
refer to calendar, not business, days, unless business days are specified. Notwithstanding
anything to the contrary set forth herein, if either party is delayed in, or prevented from
observing or performing any of its obligations hereunder, or satisfying any term or condition
hereunder, in any case as the result of: (i) an act or omission of the other party; or (ii) any other
cause that is not within the reasonable control of such party (including, without limitation,
inclement weather, the unavailability of materials, equipment, services or labor, and utility or
energy shortages or acts or omissions of public utility providers); then: (i) observation,
performance, or satisfaction shall be excused for the period of such delay or prevention; and
(ii) the dates, and other deadlines for observation, performance, and satisfaction shall be
extended for the same period.
IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the date set
forth above.
U61 O.J1C'7.L2.PAC FF &E -Regi ns an,J CI.wpd
CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
B
L
orleder, CFO
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
Ronald E. Carter, President
applicable law: (i) the right to a trial by jury; and (ii) any right Developer may have to: (A) assert
the doctrine of "forum non conveniens "; or (B) object to venue.
(f) Time Periods. All references in this Contract to periods of days shall be construed to
refer to calendar, not business, days, unless business days are specified. Notwithstanding
anything to the contrary set forth herein, if either party is delayed in, or prevented from
observing or performing any of its obligations hereunder, or satisfying any term or condition
hereunder, in any case as the result of: (i) an act or omission of the other party; or (ii) any other
cause that is not within the reasonable control of such party (including, without limitation,
inclement weather, the unavailability of materials, equipment, services or labor, and utility or
energy shortages or acts or omissions of public utility providers); then: (1) observation,
performance, or satisfaction shall be excused for the period of such delay or prevention; and
(ii) the dates, and other deadlines for observation, performance, and satisfaction shall be
extended for the same period.
IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the date set
forth above.
CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
By:
Jeffrey S. Sporleder, CFO
THE C Y OF CARMEL
R DEV •P NT 0 S�ION
/ Ronald E. Carter, President
061 e10,1 101,12;PAC FF&E- Regions and CT.wpd
Index to Exhibits
Exhibit A Depiction of PAC Site
Exhibit B FF &E Schedule
Exhibit C FF &E Specifications
Exhibit D Terms and conditions for Fixed Rate Option
Exhibit E Terms and conditions for Extension Option
O81610,1101 ;L2;PAC FF &E- Ragwns and CT.wpd
EXHIBIT 6
PARCEL 7
Regional Performing Arts Center
Installment Purchase Contract No.
Office Works LLC
Furniture Package P10
Project Manual
#25310 - CSO Architects
Package #P10 — Entire Package
Description of Materials
Furniture, fixtures and equipment to be located within the Regional
Performing Arts Center.
Exhibit D
Terms and conditions of Fixed Rate Option
All capitalized terms used but not defined in this Exhibit or the Agreement shall have the meanings
ascribed to such terms in the Regions Loan Documents.
CRC may exercise the Fixed Rate Option by: (a) delivery of written notice to Lender prior to the
deposit of the Advance Amount into the Loan Program Account; and (b) execution of an Interest
Rate Agreement.
The parties acknowledge that the Fixed Rate has been exercised.
m
Exhibit E
Terms and conditions of Extension Option
All capitalized terms used but not defined in this Exhibit or the Agreement shaft have the meanings
ascribed to such terms in the Regions Loan Documents.
Not later than 120 days prior to the Maturity Date, CRC and Developer may request an extension
of the term of the Regions Loan. Lender shall review and consider such request for an extension
in accordance with Lender's then - applicable underwriting standards, and will notify the CRC and
Borrower as to whether such extension is granted not later than 60 days prior to the Maturity Date.
;pt..
PURCHASE ORDER
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CITY, STATE, ZIP
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CITY, STATE, ZIP
(Gr,rvtv! ` ik.) (46- -c32
- DATE
f
DATE REQUIRED
TERMS
HOW SHIPPED
REQ. NO. OR DEPT.
FOR
QUANTITY
DESCRIPTION
PRICE
UNIT
1
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7'IS"• y4 °.I
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3
4
5
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
IMPORTANT
PLEASE SEND
ORIGINAL BILL
COPIES
OF YOUR INVOICE WITH
PURCHASE ORDER NUMBER MUST APPEAR ON ALL . -
(=VOICES - PACKAGING, ETC.
LEASE NOTIFY US IMMEDIATELY IF YOU ARE UNABLE
TO COMPLETE ORDER BY DATE SPECIFIED.
OF LADING.
PURCHASING AGENT
1
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1 •. --
8131
OFFICE COP)
Carmel Redevelopment Commission
Meeting Agenda Item
Action Item #3
PRESENTER
Les Olds
ACTION REQUESTED
Approval
ITEM/SUBJECT
Request a motion to award Furniture Package, P10 for the Concert Hall
BUDGET APPROPRIATION
$718,487.73
MEETING DATE
July 21, 2010
SUMMARY:
Bids for the Furniture Package, P10 were received and reviewed by the Architect, CSO
Architects. OfficeWorks was the low bidder and it is recommended that the CRC awards the
contract to OfficeWorks.
MOTION:
Motion to approve contract with OfficeWorks in the amount of $718,487.73 for the Furniture
Package, P10, subject to available funding.
c
m
CSO Architects
Memorandum
TO: Dan Moriarity, Brandon Bogan
FROM: Mary Inchauste
DATE: 5 -21 -10
RE: Carmel Performing Arts Center - Bid Package P10 - FFE
Dan & Brandon,
My recommendations for award of the FFE contract and alternates are as follows:
1. I recommend OfficeWorks, as the low bidder, and have reviewed the bid documents &
questions /discussion with the bidder on 5- 21 -10, per attached minutes.
2. Base Bid Amount - $714,967. 92 (under CSO estimate of $778,500)
3. Recommended accepting Alternates —
a. $6,863.92 Alternate #4 —
b. $4,185.73 Alternate #5 —
c. $3,840.52 Alternate #6 —
d. $20,323.59 Alternate #7 —
e. Total add $35,213.51
Training Tables
Marker/White/Tack Boards
Trash /Recycling Containers
Brushed metal trash cans (41 units @495.90 ea.)
4. Recommend review for consideration Alternates:
a. (- $31,693.95) Alternate #3 — Model change on music chairs, more basic style.
5. Not Recommended for consideration Altenates #2 & #8.
6. Attached is the spreadsheet for all bids. Scanned submittals in project files.
Mary Inchauste
CC: Dawn TerHorst & Tiffany Hauri, file
Memo 7 -21 -1- PAC FFE Bid Recommendations
ARCHITECTURE • INTERIOR DESIGN
Page 1 of 1
280 East 96th Street, Suite 100 • Indianapolis. Indiana 46240 • Main 317.848.7800 • Fax 317.574.0957 • csoinc.net
fiywN
PART 1
BIDDER INFORMATION
(Print)
Bidder Name: OfficeWorks Services LLC d /b /a OfficeWorks
1.2 Bidder Address: Street Address:
City: Fishers
12000 Exit Five Parkway
Phone: 317.577.3510
1.3 Bidder is a/an [mark one]
Individual
State: IN
Fax:
ip: 46037
Z
317.577.3550
Partnership Indiana Corporation
Foreign (Out of State) Corporation; State:
Joint Venture X Other LLC
1.4 [The following must be answered if the Bidder oral)), of its partners or joint venture
parties is a foreign corporation. Note: To do business in or with the City of Carmel,
Indiana, foreign corporations must register- with the Secretary of the State of Indiana as
required by the Indiana General Corporation Act as stated therein and expressed in the
Attorney General 's Opinion ill, dated January 23, 19581
.1 Corporation Name:
.2 Address:
.3 Date registered with State of Indiana:
.4 Indiana Registered Agent:
Name:
Address:
BID -2
PART 2
BID PROPOSAL (VENDOR'S QUOTATION)
2.1 Base Bid
The undersigned Bidder proposes to furnish all necessary labor, machinery, tools.
apparatus, materials, equipment, service and other necessary supplies, and to perform and
fulfill all obligations incident thereto in strict accordance with and within the time(s)
provided by the terms and conditions of the Contract Documents for the above described
Work and Project, including any and all addenda thereto,
Seven Hundred Fourteen Thousand Nine Hundred Sixty Seven and -- --g2 /300 Dollars (S 714, 967.92
Alternate Bids
)
The undersigned also proposes to furnish or to omit all labor and materials necessary to
complete work as required by the "Alternate Bids ", as provided for in the drawings and
specifications as follows:
Alternate No. 1 — Add F -21 Conference Table, quantity of one and F053 ALT
Conference /Task Chair, located in Multipurpose Room 366:
Ten Thousand Three Hundred Seventeen -- 91/100
Add S 10 317.91
Alternate No. 2 — Substitute Chair F031 A Altemate Leather for COM fabric, Donor
Amenity Rooms 320 & 322:
Nine Thousand Nine Hundred Fifty Seven -- 84/100 Add S 9,957.84
Alternate No. 3 — Substitute Chair B027 ALT Instrument Chair, and B052 ALT music
chair cart, quantity of 15, Locations same as B027 and B052:
deduct
Thirty One Thousand Six Hundred Ninety Three -- 95/105 31,693 .95
Alternate No. 4 — Add F057 Conference Table Alternate, and F053 ALT
Conference/Task Chair, located in Multipurpose Room 366:
Six Thousand Eight Hundred Sixty Three 92 /100Add$ 6,863.92
Alternate No. 5 — Add I301 I A Whiteboard, quantity of 21, B01 1 B Whiteboard, quantity
of 2. 1301 1 C Tack Board. in locations as noted on plans:
Four Thousand One Hundred Eight Five -- 73/100
B1D -3
Add $ 4,185.73
ti
to
Alternate No. 6 — Add B032 Trash /Recycling (Dock Type), B078 Recycling Bin, B0082
Tall Trash Bin, B092 Large Trash Bin, 13093 Small Trash Bin, B094 Small Recycling
Bin. B095 Dual Capacity Recycling Bin, locations as noted on the plans & Procurement
List Sheets:
Three Thousand Eight Hundred Forty -- 52/100
AddS 3,840.52
Alternate No. 7 -- Add F048 Brushed Metal Waste Receptacles, locations as noted on the
plans & Procurement List Sheets:
Twenty Thousand Three Hundred Twenty Three -- 59/100 Add S 20, 323.59
Alternate No. 8 — Add F041 Outdoor side arm chair, F042 Outdoor Drink Table (36''
dia), F043 Outdoor Teak Bench, locations as noted on the Plans & Procurement List
Sheets:
Thirty Thousand Three Hundred Forty One -- 92 /100Add 30,341.92
Alternate No. 9 - Substitute custom table F024
from Kimball Hospitality for F024 custom table
from Marc Woodworking.
Seven Thousand Two Hundred Twenty Four - -66/100
BID -1
Add $ 7,224.66
it z
PART 3
CONTRACT ITEMS AND UNIT PRICES
3.1 Definition:
A. Unit price is an amount proposed by bidders, stated on the Bid Form as a price per
item added to or deducted from the Contract Sum by appropriate modification, if
quantities of Work required bv the Contract Documents are increased or
decreased.
3.2 Procedures:
A. Unit prices include all necessary material, plus cost for delivery, installation,
insurance, applicable taxes, overhead, and profit.
13. Price to add or delete unit price items shall be the same.
3.3 Unit Prices;
A. The undersigned proposes to increase or decrease Work on a "per item" basis as
follows:
No. l - Item 13027, Instrument Chair
$ 410.00
No. 2 - Item B029, Music Stand $ 65.89
No. 3 - Item 8030, Music Stand Lamp S 21.09
No. 4 - Item B039, Costume Rack $ 672.78
No. 5 - Item 8040, Coat Rack $ 290.61
No. 6 - Item B049B, Universal Clock $ 622 .49
No. 7 - Item 8050, Battery Clock $ 316.60
No. 8 - Item B053, Task Stool $ 709.88
No. 9 - Item 8089, Banquet Chair Cart $ 246.02
No. 10 - Item B090, Banquet Table Cart $ 446.60
No. 11 - Item B091, Training Table Cart S 520.51
No. 12 - Item 13099; Cellist Chair $ - 243.02
No. 13 - Item BI00, Bass Chair $ 597.03
No. 14 - Item P039, Stack Banquet Chair $ 363.37
No. 15 - Item F040, Banquet Table (8) 350,16
%J /M F ,
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PART 4
CONTRACT DOCUMENTS AND ADDENDA
4.1 The Bidder agrees to be bound by the terms and provisions of all Contract Documents as
defined in the Standard General Conditions and incorporates such Contract Documents
herein by reference.
4.2 The Bidder acknowledges receipt of the following addenda:
ADDENDUM NUMBER DATE
#
#2
#3
#4
#5
#6
131D-3
5/5/10
5/10/10
5/13/10
5/14/10
5/17/10
5/18/10
r6
i
tZ
62 •
PART 5
EXCEPTIONS
Not Applicable
BID-4
re)
fficeVs orks
FINANCIAL STATEMENTS
AND
INDEPENDENT ACCOUNTANTS' REVIEW REPORT
December 31, 2009 and 2008
KATZ, SAPPER & MILLER
Certified Public Accountentl
OFFICEWORICS SERVICES, LLC
CONTENTS
Independent Accountants Review Report
Balance Sheets
Statements of Operations and Members' Equity
Statements of Cash Flows
Notes to Financial Statements
KATZ, SAPPER & MILLER
Independent Accountants' Review Report
To the Members
OfficeWorks Services, LLC
Karr, Sapper & Miller, LLP
Certified Public Aecnunranis
Roo Fast 914h Street
Suite 500
Indianapolis, IN 462-10
Tel 3!7.50.201)0
Fax 317.580.2117
We have reviewed the accompanying balance sheets of OfficeWorks Services, LLC, an Indiana _ _
limited liability company, as of December 31, 2009 and 2008, and the related statements of
operations and members' equity and cash flows for the years then ended, in accordance with
Statements on Standards for Accounting and Review Services issued by the American Institute of
Certified Public Accountants. All information included in these financial statements is the
representation of the management of OfficeWorks Services, LLC.
A review consists principally of inquiries of company personnel and analytical procedures
applied to financial data. It is substantially less in scope than an audit in accordance with
auditing standards generally accepted in the United States, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole. Accordingly, we
do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should be made to the
accompanying financial statements in order for them to be in conformity with accounting
principles generally accepted in the United States.
L 3 YJQIiX Y"
Indianapolis, Indiana
Febniary 19, 2010
1
itlnv ksmgra.rnn+
OFFICEWORKS SERVICES. LLC
BALANCE SHEETS
December 31, 2009 and 2008
CURRENT ASSETS
Cash
Accounts receivable -trade
Inventories
Employee advances
Current portion of note receivable from member
Prepaid expenses
Total Current Assets
PROPERTY AND EQUIPMENT
Office furniture and equipment
Leasehold improvements
Warehouse equipment
Vehicles
Less: Accumulated depreciation
Total Property and Equipment
OTHER ASSETS
Note receivable from member
Other
Total Other Assets
TOTAL ASSETS
ASSETS
LLABILITIES AND MEMBERS' EQUITY
CURRENT LL&BILITIES
Accounts payable
Customer deposits
Accrued payroll and related taxes
Accrued expenses
Bank line of credit borrowings
Current maturities of long -term debt
Tota] Current Liabilities
LONG - TERM DEBT
Total Liabilities
MEMBERS' EQUITY
TOTAL LIABILITIES ANT) MEMBERS' EQUITY
See occo/npan i /?g notes cud accountants review report.
2009 2008
5 4;732 5 6.511
2,313,925 3,198,009
555,512 598.948
263 4,847
2.642 4,259
48.519 114.799
2.925.593 3.927.373
884,213
171,180
56,538
237.735
1,349,666
849,294
500.372
10.000
10.000
837,649
171,180
48,274
237.735
1,294,838
692.178
602.660
2.642
10.000
12.642
$ 3.435.965 5 4.542.675
$ 1.938,261
323.448
63,280
57,752
175,000
17")_574
2.680 265
556.397
,,236.662
199.303
5 2207,361
486.703
70,533
87.069
350,000
116.840
3.31 8.506
655.515
3.9 74,091
568.654
- 5 3.435.965 5 4.542.675
-4.
OFFICEWORKS SERVICES, LLC
STATEMENTS OF OPERATIONS AND MEMBERS' EQUITY
Years Ended December 31, 2009 and 2008
2009 2008
SALES $ 16.643,116 $ 29.359,896
COST OF SALES 13.743.024 24.701.409
Gross Margin 2,900,092 4,658,487
GENERAL AND ADMINISTRATWE EXPENSES 2.996.805 3.778 262
Income (Loss) from Operations (96,713) 880,225
INTEREST EXXTENSE 87.042 130.339
NET INCOME (LOSS) (183,755) 749,886
DISTRIBUTIONS TO MEMBERS (185,596) (252,320)
MEMBERS' EQUITY
Beginning of Year 568.654 71.088
End of Year $ 199.303 $ 568.654
See accompanying notes and accountants' review report.
ire
Fol
•
OFFICEWORKS SERVICES, LLC
STATEMENTS OF CASH FLOWS
Years Ended December 31. 2009 and 2008
OPERATING ACTIVITIES
Net income (loss)
Adjustments to reconcile net income (loss) to net cash provided
by operating activities:
Depreciation of property and equipment
(increase) decrease in certain current assets:
Accounts receivable -trade
Inventories
Prepaid expenses and advances
Increase (decrease) in certain current liabilities:
Accounts payable
Customer deposits
Accrued expenses and other. liabilities
Net Casb Provided by Operating Activities
INVESTING ACTIVITIES
Cash paid for property and equipment
Decrease in note receivable from member
Net Casb (Lased) by Investing Activities
FINANCING ACTIVITIES
Borrowings on bank lines of credit
Principal payments on bank lines of credit
Principal payments on long -term debt
Casb distributions to members
Net Cash (Used) by Financing Activities
NET INCREASE (DECREASE) LN CASH
CASH
Beginning of Year
End of Year
SUPPLEI tENTAL DISCLOSURES
Cash paid for interest
Noncash investing and financing activities:
Debt incurred for acquisition of equipment
See accolnpanvilig ,lotus and accountants' review n report.
2009
S (183,755)
157,114
884,084
43,436
70,864
(269,100)
(163,255)
(36.570)
502.818
(24,648)
4.259
(20.389)
7,175,000
(7.350,000)
(123,612)
(185.596)
(484.208)
(1,779)
6,511
S 4.732
S 88.424
30.178
2008
S 749,886
133,485
(309,681)
83,533
123,050
504,934
71,893
(150.162)
1.206.938
(93,698)
4,051
(89.647)
10,225,000
(11,000,000)
(88,583)
(252.320)
(1.115.903)
1,388
5.123
6.511
S
13-1,911
196,309
OFFICEWORKS SERVICES, LLC
NOTES TO FLNANCL&L STATEIWENTS
NOTE 1 - SUMILARY OF SIGNIFICANT ACCOUNTING POLICIES
OfficeWorks Services, LLC (the Company) was formed as an Indiana limited liability company on
December 19, 2002, and commenced operations on January 1, 2003. The Company is an office furniture
dealer that provides office furniture, equipment, and other office and warehouse-environment services.
Estimates: Management uses estimates and assumptions in preparing financial statements in accordance
with accounting principles generally accepted in the United States. Those estimates and assumptions affect
the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the
reported revenues and expenses. Actual results could vary from the estimates that were used.
Cash: The Company maintains its cash in bank deposit accounts which, at times, may exceed the federally
insured limits. The Company has not experienced any losses from bank accounts.
Revenue Recognition: Revenue from the sale of inventory to a customer is recognized upon the delivery
and installation of substantially all related purchases.
Receivables and Credit Policies: The Company extends credit to customers located primarily in the state
of Indiana. Accounts receivable are uncollateralized customer obligations due under normal trade terms
requiring payment within 10 days from the invoice date. Payments of accounts receivable are allocated to
the specific invoices identified on the customer's remittance advice or, if unspecified, are applied to the
earliest unpaid invoices. Periodically, management individually reviews all accounts receivable balances
and, based on an assessment of current creditworthiness, estimates the portion, if any, of the halances that
will not be collected. These estimated amounts are written off. Management determined no allowance for
doubtful accounts was necessary at December 31. 2009 and 2008.
Inventories of office furniture and equipment are stated at the lower of cost or market determined by the
first -in, first-out (1 -11-0) method.
Shipping and Handling Costs are expensed as incurred and are included in cost of sales.
Sales Taxes collected from customers and remitted to governmental agencies are not included in sales or in
cost of sales and expenses.
Property and Equipment are recorded at cost. Depreciation is computed usine the straight -line method
over estimated useful lives ranging from generally 4 to 40 years. Amortization of equipment held under
capital leases is included in depreciation expense.
Income Taxes: As a Limited liability company, the Company's taxable income or loss is allocated to the
tnembers in accordance with ;.heir respective ownership percentage. Therefore, no provision or liability for
income taxes has been included in the f*nancial statements. Certain specific deductions and credits flow
through the. Company to its members.
The Company files income tax returns in the U.S. federal jurisdiction and Indiana. The Company is no
longer subiect to U.S. federal and state income tax examinations by tax authorities for years before 2006.
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Advertising Costs are expensed as incurred and totaled 820.241 for 2009 and 845,669 for 2008.
Subsequent Events: The Company has evaluated the financial statements for subsequent events occurring
through February 19; 2010, the date the financial statements were available to be issued.
NOTE 2 - DEBT AND CREDIT ARRANGEMENTS
Long -term debt was comprised of the following at December 31, 2009 and 2008:
2009 2008
Note payable to Ford Motor Credit in monthly installments of $946,
including interest computed at 7.99 %, through maturity in February 2010.
Secured by vehicle. $ 1.881 $ 12,598
Subordinated note payable to Member in monthly installments of $5,236,
including interest computed at prime plus 1% (4.25% at December 31,
2009), to maturity in August 2011, when the remaining principal balance
is due. Unsecured. 304.753 337,906
Subordinated note payable to Member in monthly installments of 81,699,
including interest computed at 9 %, to maturity in August 2011, when the
retraining principal balance is due. Unsecured. 101,045 l 11,820
Subordinated note payable to Member in monthly installments of $725,
including interest computed at prime plus 1% (4.25% at December 31,
2009), to maturity in August 2011. when the remaining principal balance
is due. Unsecured. 42.755 47.250
Equipment lease obligations payable in monthly installments,
including imputed interest at various rates, through November 2013.
Secured by equipment recorded at a cost of 8306,400 with accumulated
depreciation of $88,260 at December 3l, 2009. 228.487 259,38]
Note payable. Repaid in 2009.
Less: Current maturities
Total Long -term Debt
6
3.400
678.921 772.355
122.524 116.840
.$5,`6,3321. Lam_
:::,
NOTE 2 - DEBT AND CREDIT ARRANGEMENTS (CON '1ENDED)
At December 31, 2009, the aggregate principal maturities and the capital lease payments required by the
above long -term obligations were as follows:
Capital
Payable In Lease Payments Principal
2010 $ 79.798 $ 54.565
2011 78,779 395,869
2012 60,360
2013 33.737
Total Capital Lease Payments 252.674
Less: Amount representing interest (24.187)
Net Capital Lease Obligation 2$•
The Company has a revolving bank line of credit for short-term borrowings of up to $600,000, with interest
computed at 5.0 %. At December 31, 2009, the Company had borrowed $175,000 on the line of credit.
which is guaranteed by the members of the Company, as well as the assignment of certain marketable
securities owned by one of the members of the Company. The Company also has a second revolving bank
line of credit for short-term borrowings of up to 81,000,000, through February 1, 2010, at which date the
amount available for short-term borrowings decreases to $750,000. Interest on the line is computed at
5.50 %. At December 31, 2009, the Company had no borrowings on this line of credit, which is also
guaranteed by the members of the Company and secured by substantially all of the assets of the Company.
Both lines of credit are subject to renewal on August 4, 2010.
The line of credit agreements contain various covenants and require the Company to maintain various
minimum financial ratios.
NOTE 3 - RENT COMMITMENTS
In June 2008, the Company entered into an agreement to lease its office and warehouse location under a
long -term operating Iease with two three -year renewal options. Total rent expense paid pursuant to all
leases was $263.748 for 2009 and $298,641 for 2008.
The minimum rental commitments at December 31, 2009, under all long -term noncancellable operating
leases are as follows:
Payable In Rentals
2010 $242.858
2011 242,858
2012 242,858
2013 121.429
Total Required Rental Payments �R50,003 _
NOTE 4 - RELATED PARTY TRANSACTIONS
The Company had the following balances and transactions with related entities as of and for the Sears
ended December 31, 2009 and 2008:
2009 2008
Accounts receivable S 940 S 2,361
Accounts payable 4,102 1,374
Accrued interest expense payable 1,382
Purchases 18,159 60.739
Interest expense 43,069 51,870
Notes payable to members 448,553 496.976
Note receivable to members 2,642 6,901
NOTE 5 - 401(k) PLAN
The Company sponsors the OfficeWorks 401(k) Plan. All of the Company's full-time employees who are
at least 21 years of age and have attained one full year of service are eligible to participate in the Plan. Plan
participants may elect to contribute a percentage of their pre -tax salary to the Plan. For each plan year, the
Company may make discretionary matching contributions. The Company made no matching contributions
to the Plan for 2009 or 2008.
NOTE 6 - CONCENTRATIONS
Accounts receivable from two customers accounted for approximately 40% of the Company's total
accounts receivable at December 31. 2009. Accounts receivable from one customer accounted for
approximately 47% of the Company's total accounts receivable at December 31, 2008.
Purchases from one supplier accounted for 60% of the Company's total purchases in 2009 and 2008.
8
PART 7
ADDITIONAL DECLARATIONS
7.1 Bidder certifies for itself and all its subcontractors compliance with all existing laws of
the United States and the State of Indiana prohibiting the discrimination against any
employee or applicant for employment or subcontract work in the performance of the
Work contemplated by the Agreement with respect to hire, tenure, terms, conditions, or
privileges of employment or any matter directly or indirectly related to employment or
subcontracting because of race, religion, color, sex, handicap, national origin, ancestry,
age, disabled veteran status or Vietnam era veteran status. The City of Carmel reserves
the right to collect a penalty as provided in IC 5- 16 -6 -1 for any person discriminated
against.
7.2 The Bidder certifies that Bidder has thoroughly examined the site of the Project /Work
and informed itself fully regarding all conditions under which he /she will be obligated to
operate and that in any way affect the Work, and knows, understands and accepts the
existing conditions. The Bidder further certifies that he /she has thoroughly reviewed the
Contract Documents, including all Addenda, and has had the opportunity to ask all
questions thereof and obtain all interpretations and /or clarifications concerning the
Contract Documents that Bidder desire to obtain.
The account representative, Gary Duke, examined the site.
sa
PART 8
NON - COLLUSION AFFIDAVIT
The individual person(s) executing this Bid Proposal, being first duly sworn, depose(s) and
state(s) that the Bidder has not directly or indirectly entered into a combination, collusion,
undertaking or agreement with any other Bidder or person (i) relative to the price(s) proposed
herein or to be bid by another person, or (ii) to prevent any person from bidding, or (iii) to
induce a person to refrain from Bidding; and furthermore, this Bid Proposal is made and
submitted without reference to any other bids and without agreement, understanding or
combination, either directly or indirectly, with any persons with reference to such bidding in any
way or manner whatsoever.
PART 9
SIGNATURES
[Signature by or on behalf of the Bidder in the spaces provided below shall constitute execution
of each and every Part of this Itemized Proposal and' Declarations Document. SIGNATURE
MUST BE PROPERLY NOTARIZED.]
Bidders Name: OfficeWorks Services LLC d /b /a Off iceWorks
Written Signature:
Printed Name:
Title:
1v
rti
Gary Duke
Account Representative
Important - Notary SiEnature and Seal Required in the Space Below
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Subscribed and sworn to before me this
20 I0.
My commission expires: 02/13/2013
l8thday of May
/7
(Signed)., /
Printedk.J'ce A. Goldsmith- Posson
Residing in HAMILTON COUNTY County, State of INDIANA
13)D -7
Ala
3
THE CINCINNATI INST RANCE COMPANY
CINCINNATI, OIDO
Bid Bond
KNOW ALL MEN BY THESE PRESENTS, that we OfficeWorks Services, LLC
12000 Exit 5 Parkway, Fishers, IN 46038
as Principal, hereinafter called the Principal, and THE CINCINNATI INSURANCE COMPANY, a corporation duly
organized under the laws of the State of Ohio, as Surety, hereinafter called the Surety, are held and firmly bound unto
The City of Carmel
as Obligee, hereinafter called the Obligee, in the sum of
Five Percent of the Bid Amount
Dollars ($
for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors,
administrators, successors and assigns,- jointly and severally, firmly by these presents - -
WHEREAS, the Principal has submitted a bid for
Furniture for Carmel Performing Arts Center
NOW THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the
Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract
Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and
mate -riai furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such
bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified
in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the work covered
by said bid, then thls obligation shall be null and void, otherwise to remain in full force and effect.
Signed and sealed this 19th day of May , 2010
(Witness)
OfficeWorks Services, LLC
(Principal) i_
By: I`
(Seal)
THE CINCINNATI INSURANCE COMPANY
(Surety) (Seal)
Michele James
Attorney-in-Fact
Printed In ;.;ooperation with the American Institute of Architects (AIA), by The Cincinnati Insurance Company who vouches l,h.a
the lennuage in this document conforms exactly to the language used in AlA Document A310, February 1970 ED
S- 2000 -ALA (4 /99) ) UBLJC
Er
THE CINCINNATI INSURANCE COMPANY
Fairfield, Ohio
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That THE CINCINNATI INSURANCE COMPANY, a corporation organized under the laws of
the State of Ohio, and having its principal office in the City of Fairfield, Ohio, does hereby constitute and appoint
Jeffrey T. Miller; Michele James; Deanna L. Clark; Charlotte M. Mason; Jennifer Brucker;
Helen L. Brown; Amanda Matera; Carrie L. Abbett and /or Thomas K. Johnson
al Indianapolis, Indiana its true and lawful Attorney {s) -in -Fact to sip., execute, seal
and deliver on its behalf as Surety, and as its act and deed, any and all bonds, policies, undertakings, or other like instruments, as follows:
Any such obligations in the United States, up to
Five Million and No /100 Dollars ($5,000,000.00) .
This appointment is made under and by authority of the following resolution passed by the Board of Directots of said Company
at a meeting held in the principal office of the Company, a quontm being present and voting, on the 6th day of December, 1958, which
resolution is still in effect:
"RESOLVED, that the President or any Vice President be hereby authorized, and empowered to appoint Attorneys -in-
Fact of the Company to execute any and all bonds, policies, undertakings, or other like instruments on behalf of the
Corporation, and may authorize any officer or any such Attorney -in -Fact to affix the corporate seal; and may with or
without cause modify or revoke any such appointment or authority Any such writings so executed by such Attorneys -in-
Fact shall be binding upon the Company as if they had been duly executed and acknowledged by the regularly elected
officers of the Company"
This Power of 'Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the
Board of Directors of the Company at a meeting duly called and held on the 7th day of December, 1973
"RESOLVED, that the signature of the President or a Vice President and the seal of the Company may be affixed by
facsimile on any power of attorney granted, and the signature of the Secretary or Assistant Secretary and the seal of the
Company may be affixed by facsimile to any certificate of any such power and any such power of certificate bearing
such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed
and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached,
continue to be valid and binding on the Company."
IN WITNESS WHEREOF, THE CINCINNATI INSURANCE COMPANY has caused these presents to be sealed with its corporate
seal, duly attested by its Vice President this 10"' day of October, 2008
STATE OF OHIO ) ss:
COUNTY OF BUTLER )
THE Cl
11 INSURANCE COMPANY
Vice Presiden
On this 10'' day of October, 2008, before me came the above -named Vice President of THE CINCINNATI INSURANCE
COMPANY, to me personally known to be the officer described herein, and acknowledged that the seal affixed to the preceding instrument is
the corporate seal of said Company and the corporate seal and the signature of the officer were duly affixed and subscribed to said instrument
by the authority and direction of said corporation
0��1At 93
.t AIL
f,1 *e of f
"r +tau�uw�
1, the undersigned Secretary or Assistant Secretary of THE CINCINNATI INSURANCE CONIPAN'r hereby certify that the above
is a true and correct copy of the Original Power of Attorney issued by said Company, and do hereby further certify that the said Power of
Attorney is still in full force and effect
GIVEN under my hand and seal of said Company at Fairfield, Ohio
19th day of May, 2010
MARK J. HOLLER, Attorney al Lew
NOTARY PUBLIC - STATE OF OHIO
My commission has no expiration
dale. Section 147 03 O.R.C.
this
B -1005 ( 10/08)
Secretary