HomeMy WebLinkAboutRegions/Carmel Theater Development Co. - PAC Box Office, Phone System, Music Equip. & Improvements - $378,506.60m
INSTALLMENT PURCHASE CONTRACT
(PAC Box Office, Phone System, and Music Equipment and Improvements)
This Installment Purchase Contract (PAC Box Office, Phone System, and Music Equip ent
and Improvements) (the "Contract"), by and between Carmel Theater Development Company the
"Developer") , and The City of Carmel Redevelopment Commission ( "CRC "), is executed this ay of
September, 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 PAC Equipment and Improvements Disbursement Balance or the Replacement Loan Balance,
as applicable, over the Amortization Period (or the remainder thereof, in the case of the exercise of the
Extension Option).
regate PAC Equipment and Improvements Costs shall mean the sum of: (a) the PAC Equipment and
Improvements Costs; (b) the Lender Fees in connection with the PAC Equipment and Improvements
Disbursement; and (c) the Loan Costs for the PAC Equipment and Improvements Disbursement.
Amortization Period shall mean a period of 20 years, commencing on the first day of Payment Period 2.
Books and Records shall mean all of the books and records pertaining to the acquisition and installation of
the PAC Equipment and Improvements in accordance with this Contract and the PAC Equipment and
Improvements Acquisition Agreement.
Change Order shall mean a change order executed by the Executive Director (or by another designee of CRC
if the Executive Director is unable or unavailable to execute such change order) and Developer finalizing the
inclusion into the PAC Equipment and Improvements Specifications of a change that has been: (a) proposed
in a Change Order Request; and (b) deemed to have been approved (or actually approved) by Developer.
Change Order Request shall mean a written request by CRC for a change to the PAC Equipment and
Improvements Specifications.
City shall mean the City of Carmel, Indiana.
City Agency shall mean an agency, board, commission, department, or instrumentality of the City.
Claims shall mean claims, judgments, liabilities, losses, costs, and expenses (including, without limitation,
reasonable attorneys' fees).
Closing Payment shall mean an amount equal to: (a) the PAC Equipment and Improvements Disbursement
Balance or the Replacement Loan Balance, as applicable, as of the expiration of Payment Period 2; plus (b)
interest thereon that has: (i) accrued at the Loan Rate; and (ii) not been paid prior to the expiration of Payment
Period 2 (stated alternatively, interest that has accrued, but not been paid, as part of the Installment Payments).
Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition
of this Contract to be performed or observed by it receives notice specifying the nature of the failure; provided
that, if the failure is of such a nature that it cannot be remedied within 30 days, despite reasonably diligent
efforts, then the 30 day period shall be extended as reasonably may be necessary for the defaulting party to
remedy the failure, so long as the defaulting party: (a) commences to remedy the failure within the 30 day
period; and (b) diligently pursues such remedy to completion.
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Default Rate shall mean the default rate of interest under the Loan Documents.
Event of Default shall have the meaning set forth in Section 16.
Executive Director shall mean the Executive Director of CRC (currently Les Olds).
Extension Option shall mean the option to extend the term of the Regions Loan for a period of five years,
which option may be exercised on the terms and conditions set forth in Exhibit E.
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) PAC Equipment and Improvements Closing Date.
Full Prepayment Notice shall mean a written notice pursuant to which CRC notifies Developer that it is
exercising the Full Prepayment Option.
Full Prepayment Option shall mean the option (but not the obligation) of CRC to: (a) satisfy its obligation in
full with respect to the payment of the Purchase Price; and (b) acquire title to the PAC Equipment and
Improvements; in advance of the expiration of Payment Period 2 by paying the Full Prepayment Price.
Full Prepayment Price shall mean the sum of: (a) the PAC Equipment and Improvements 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 (ii) not been paid prior to the Full Prepayment
Closing Date (stated alternatively, interest that has accrued, but not been paid, as part of the Installment
Payments); plus (c) if the Full Prepayment Price is being paid more than 90 days before the maturity date of
the Loan, any applicable prepayment premiums or similar payments due under the Loan Documents with
respect to a prepayment of the PAC Equipment and Improvements 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
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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 PAC
Equipment and Improvements Disbursement; and /or (b) to close Replacement Loan. To the extent that costs
are included in Loan Costs, such costs shall not be included in Lender Fees.
Loan Documents shall mean, as applicable, the Regions Loan Documents or the Replacement Loan
Documents.
Loan Rate shall mean the per annum regular (non - default) rate of interest accruing on the PAC Equipment and
Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, under the Loan
Documents.
Offset/Addition Amount shall mean the amount by which a projected Installment Payment set forth in a
Projection Notice either exceeded or fell short of the amount of the Installment Payment to which Developer
actually was entitled for the quarter with respect to which such Projection Notice applied.
Offset/Addition Notice shall mean a written notice: (a) stating that the projected amount of an Installment
Payment set forth in a specified Projection Notice either exceeded or fell short of the amount of the Installment
Payment to which Developer actually was entitled for the quarter with respect to which such Projection Notice
applied; and (b) setting forth the Offset/Addition Amount.
PAC shall mean a world -class concert hall located on that certain real estate depicted on Exhibit A.
PAC Equipment and Improvements shall mean $378,534.60 of box office equipment and improvements,
phone system equipment and improvements, and music equipment in connection with the completion of the
PAC. The PAC Equipment and Improvements are described in the PAC Equipment and Improvements
Specifications.
PAC Equipment and Improvements Acquisition Agreement shall mean one or more agreements entered
into by Developer and the Supplier, which agreement shall: (a) be consistent with the PAC Equipment and
Improvements Schedule and the PAC Equipment and Improvements Specifications (reflecting any Change
Orders); (b) reflect the obligation of Developer to obtain the Warranties; and (c) be subject to the reasonable
approval of CRC.
PAC Equipment and Improvements Closing Date shall mean the date of the closing with respect to the
transfer of the PAC Equipment and Improvements. If such closing has not occurred at such time as Payment
Period 2 expires, then the PAC Equipment and Improvements Closing Date shall be the date on which Payment
Period 2 expires.
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PAC Equipment and Improvements Costs shall mean the actual, out -of- pocket costs incurred by Developer
to acquire and install (or cause the installation of) the PAC Equipment and Improvements in accordance with
this Contract and the PAC Equipment and Improvements Acquisition Agreement.
PAC Equipment and Improvements Disbursement shall mean a disbursement by Regions of proceeds of
the Regions Loan for the purposes of funding the Aggregate PAC Equipment and Improvements Costs.
PAC Equipment and Improvements Disbursement Balance shall mean that portion of the principal balance
of the Regions Loan disbursed to pay the Aggregate PAC Equipment and Improvements Costs, which portion.
remains outstanding. The PAC Equipment and Improvements Disbursement Balance shall be reduced by: (a)
any Partial Prepayments that have been made by CRC to Developer, even if the Lender has not yet applied
any such Partial Prepayments to reduce the outstanding principal balance of the PAC Equipment and
Improvements Disbursement; and (b) the Aggregate Applied Amounts.
PAC Equipment and Improvements Disbursement Date shall mean the date of the PAC Equipment and
Improvements Disbursement.
PAC Equipment and Improvements Schedule shall mean the schedule for the acquisition and installation
of the PAC Equipment and Improvements, which schedule is attached hereto as Exhibit B.
PAC Equipment and Improvements Specifications shall mean the specifications for: (a) the PAC Equipment
and Improvements, including specific identification and /or descriptions of the PAC Equipment and
Improvements; and (b) the warranties from manufacturers, fabricators, and suppliers to be obtained in
connection with the acquisition and installation of the PAC Equipment and Improvements, which warranties
shall: (1) run in favor of CRC; and (ii) constitute the Warranties. The PAC Equipment and improvements
Specifications are attached hereto as Exhibit C.
Partial Prepayment shall mean a payment of a portion of the outstanding principal balance of the PAC
Equipment and Improvements Disbursement or the Replacement Loan, as applicable, which payment is made
by CRC in addition to an Installment Payment.
Payment Due Date shall mean each April 7, July 7, October 7, and January 7 during Payment Period 1 and
Payment Period 2.
Payment Period 1 shall mean the period: (a) beginning on the PAC Equipment and Improvements
Disbursement Date; and (b) ending on April 7, 2012.
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the PAC
Equipment and Improvements, the amount of which shall be equal to: (a) the Loan Rate; multiplied by (b) the
PAC Equipment and Improvements Disbursement Balance; and multiplied by (c) 1/4.
Payment Period 2 shall mean the period: (a) beginning on April 8, 2012; and (b) ending on the maturity date
of the Regions Loan. If the Replacement Loan is obtained, then Payment Period 2 shall end on the maturity
date of the final Replacement Loan.
Payment Period 2 Installments shall mean quarterly installment payments for the purchase of the PAC
Equipment and Improvements, the amount of which shall be equal to an amount that will amortize the PAC
Equipment and Improvements Disbursement Balance or the Replacement Loan Balance, as applicable, over
the Amortization Period (or the remainder thereof, in the case of the exercise of the Extension Option) at the
Loan Rate.
Projection Notice shall mean a written notice setting forth Developer's reasonable projection of the amount
of the next due Installment Payment.
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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, as subsequently
amended.
Regions Loan shall mean the loan made by Regions to Developer in the original principal amount of
$10,000,000.00.
Regions Loan Agreement shall mean that certain Loan Agreement (Equipment and Improvements) executed
by and between Developer and Regions, and dated July 22, 2010.
Regions Loan Documents shall mean the documents evidencing and securing the Regions Loan, including,
without limitation, the Regions Loan Agreement, the Regions Note, and the Regions Collateral Assignment.
Regions Note shall mean that certain Promissory Note executed by Developer in favor of Regions, and dated
July 22, 2010.
Regions Tri -Party Agreement shall mean that certain Tri -Party Agreement executed by and among
Developer, CRC, and Regions, and dated July 22, 2010.
Replacement Lender shall mean the financial institution making the Replacement Loan.
Replacement Loan shall mean a financing (or a series of financings) comprised of a loan (or a series of loans)
to Developer, the proceeds of which shall be used to refinance the Unamortized Balance, which loan (or series
of loans) shall provide for: (a) a term that does not extend beyond the expiration of the Amortization Period;
(b) interest at a rate accepted by CRC; (c) amortization of the Unamortized Balance over the remainder of the
Amortization Period at the Loan Rate; and (d) quarterly payments that change if and when the Loan Rate
changes, subject to the exercise of the Fixed Rate Option.
Replacement Loan Balance shall mean that portion of the outstanding principal balance of the Replacement
Loan disbursed to pay: (a) the Unamortized Balance; (b) Lender Fees with respect to the Replacement Loan;
and (c) Loan Costs with respect to the Replacement Loan. The Replacement Loan Balance shall be reduced
by: (a) any Partial Prepayments that have been made by CRC to Developer, even if the Lender has not yet
applied any such Partial Prepayments to reduce the outstanding principal balance of the Replacement Loan;
and (b) the Aggregate Applied Amounts.
Replacement Loan Documents shall mean the documents evidencing and securing the Replacement Loan.
Replacement Tri -Party Agreement shall mean an agreement by and among CRC, Developer, and the
Replacement Lender replacing the Regions Tri -Party Agreement, to the extent that the Regions Tri -Party
Agreement applies to the PAC Equipment and Improvements Disbursement, which agreement shall contain
terms and conditions substantially similar to the Regions Tri -Party Agreement, modified as necessary to reflect
the Replacement Loan.
Supplier shall mean the entity or entities from which Developer will acquire the PAC Equipment and
Improvements.
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Surviving Supplier Obligations shall mean obligations of the Supplier under the PAC Equipment and
Improvements Acquisition Agreement (other than the obligations specified in the Warranties) that survive the
acquisition and installation by Developer of the PAC Equipment and Improvements.
Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon, the PAC Equipment and Improvements or any interest therein; or (b) any granting of a
security interest in the PAC Equipment and Improvements.
Unamortized Balance shall mean the amount of the PAC Equipment and Improvements Disbursement
Balance on the maturity date of the Regions Loan, as the same may be extended by the exercise of the
Extension Option; provided that, in the case of a Replacement Loan obtained after the maturity of a prior
Replacement Loan, the Unamortized Balance shall be mean the amount of the Loan Balance on the maturity
of such prior Replacement Loan.
Warranties shall mean the warranties specified in the PAC Equipment and Improvements Specifications to be
obtained in connection with the acquisition and installation of the PAC Equipment and Improvements, which
warranties shall run in favor of CRC.
2. General Obligations.
(a) Regions Loan Disbursement and Acquisition. Subject to the terms and conditions of
this Contract:
(1) Developer shall: (A) obtain an acknowledgment from Regions that
Regions will make the PAC Equipment and Improvements Disbursement; (B)
after the PAC Equipment and improvements Disbursement: (1) acquire the
PAC Equipment and Improvements and the Warranties in accordance with
the PAC Equipment and Improvements Acquisition Agreement; and (2) install
(or cause the installation of) the PAC Equipment and Improvements; (C) if
applicable, close the Replacement Loan, including executing and delivering
the Replacement Loan Documents; and (0) satisfy its obligations under the
Loan Documents; and
(ii) the PAC Equipment and Improvements Disbursement shall be used
only to finance the Aggregate PAC Equipment and Improvements Costs. If
Developer obtains the Replacement Loan, then the proceeds of the
Replacement Loan may be used to refinance the Unamortized Balance.
(b) Fixed Rate Option. Upon receipt of written request by CRC, Developer shall exercise
the Fixed Rate Option; provided that, Developer shall not exercise the Fixed Rate Option
unless requested by CRC.
(c) PAC Equipment and Improvements 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 PAC Equipment and Improvements for the Purchase Price; provided that, if CRC
exercises the Full Prepayment Option, then, in lieu of the Purchase Price, CRC shall pay
the Full Prepayment Price.
3. PAC Equipment and Improvements Disbursement.
(a) Date. The PAC Equipment and Improvements Disbursement Date shall be
established mutually by CRC and Developer.
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(b) Documents. In connection with the PAC Equipment and Improvements Disbursement,
CRC and /or Developer, as applicable, shall execute and deliver:
(i) copies of such resolutions, consents, authorizations, and other
evidence as CRC or Developer, as applicable, or Regions reasonably may
request to establish that: (A) the persons executing and delivering this
Contract are empowered and authorized by all necessary action of CRC or
Developer, as applicable; and (B) the: (1) execution and delivery of this
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 PAC
Equipment and Improvements Disbursement shall be subject to the satisfaction, or waiver in
writing, of the following:
(i) Developer, exercising commercially reasonable discretion, shall have
approved the terms and conditions of the PAC Equipment and Improvements
Disbursement;
(ii) there shall be no breach of this Contract by CRC that CRC has failed
to cure within the Cure Period; and
(iii) all of the representations and warranties set forth in Subsection 5(a)
shall be true and accurate in all respects.
(b) CRC Conditions. The obligations of CRC with respect to the PAC Equipment and
Improvements 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 PAC Equipment and improvements
Disbursement;
(ii) there shall be no breach of this Contract by Developer that Developer
has failed to cure within the Cure Period; and
(iii) all of the representations and warranties set forth in Subsection 5(b)
shall be true and accurate in all respects.
5. Representations.
(a) CRC. CRC represents and warrants to Developer that: (i) CRC shall not enter into any
contracts or undertakings that would limit, conflict with, or constitute a breach of this Contract,
the Regions Tri -Party Agreement, or the Regions Collateral Assignment; (11) CRC is a public
body organized and existing under the laws of the State of Indiana; (iii) CRC has the power to:
(A) enter into this Contract; and (B) perform its obligations hereunder; (iv) CRC has been
authorized by proper action to: (A) execute and deliver this Contract; and (B) perform its
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obligations hereunder; and (v) this Contract, the Regions Tri -Party Agreement, and the
Regions Collateral Assignment are the legal, valid, and binding obligations of CRC.
(b) Developer. Developer represents and warrants to CRC that: (i) Developer shall not
enter into any contracts or undertakings that would limit, conflict with, or constitute a breach
of this Contract, the Regions Tri -Party Agreement, or the Loan Documents; (1i) 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 PAC Equipment and
Improvements Acquisition Agreement: (A) Developer shall have good and marketable title to
the PAC Equipment and Improvements, free and clear of all liens, claims, security interests,
encumbrances, and restrictions, except for this Contract; and (B) no financing statement
covering all or any portion of the PAC Equipment and Improvements shall be on file in any
public office.
6. Change Orders. If CRC desires to make a change to the PAC Equipment and Improvements
Specifications, then CRC shall submit a Change Order Request to Developer, which Change Order Request
shall state: (a) whether implementing the Change Order Request would increase, decrease, or have no effect
on the PAC Equipment and Improvements Costs; and (b) that, if implementing the Change Order Request
would increase the PAC Equipment and Improvements Costs, then CRC shall pay the amount of such increase.
So long as CRC agrees to pay any increase in the PAC Equipment and Improvements Costs that results from
the proposed change, the Change Order Request shall be deemed to be approved by Developer. If a Change
Order Request is deemed to be approved by Developer, then a Change Order shall be executed.
Notwithstanding the foregoing, Change Orders may be made only: (a) to the extent permitted by, and in
accordance with, the PAC Equipment and Improvements Acquisition Agreement; and (b) with respect to items
of the PAC Equipment and Improvements, title to which has not been transferred to Developer.
7. Acquisition of PAC Equipment and Improvements.
(a) Acquisition Agreement. Developer shall: (1) enter into the PAC Equipment and
Improvements Acquisition Agreement; (ii) comply with all of its obligations under the PAC
Equipment and Improvements Acquisition Agreement; (Iii) keep the PAC Equipment and
Improvements Acquisition Agreement in full force and effect, without any default by Developer
thereunder; (iv) not amend or modify the PAC Equipment and Improvements Acquisition
Agreement, except with the prior consent of CRC; provided that, without the prior consent of
CRC, Developer may make minor, non - substantive amendments or modifications of or to the
PAC Equipment and Improvements Acquisition Agreement; and (v) enforce the terms and
conditions of the PAC Equipment and Improvements Acquisition Agreement against the
Supplier (including that, to the extent that there are Surviving Supplier Obligations, Developer
shall enforce the terms and conditions of the PAC Equipment and Improvements Acquisition
Agreement with respect thereto); provided that, if Developer incurs actual, reasonable,
out -of- pocket expenses in connection with such enforcement, then, upon receiptof 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 PAC Equipment and
improvements, Developer shall collaterally assign the PAC Equipment and Improvements
Acquisition Agreement to CRC.
(b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation
of), all of the PAC Equipment and Improvements in accordance with the PAC Equipment and
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Improvements Acquisition Agreement, the PAC Equipment and Improvements Schedule, and
the PAC Equipment and Improvements Specifications (reflecting any Change Orders); and (ii)
obtain (and deliver to CRC) all of the Warranties; provided that, if, for any reason, the
Warranties by their terms do not run in favor of CRC, then, in addition to delivering the
Warranties to CRC, Developer shall assign the Warranties to CRC. If the Aggregate PAC
Equipment and Improvements Costs exceed the proceeds of the PAC Equipment and
Improvements Disbursement, then, upon receipt of reasonable documentation evidencing
such excess, and in the ordinary course of CRC's business, CRC shall pay to Developer the
amount of such excess.
(c) Inspection. At such time as Developer has acquired and installed (or caused the
installation of) the PAC Equipment and Improvements and obtained (and delivered t� CRC)
the Warranties, CRC shall check the PAC Equipment and Improvements and the Warranties
against the PAC Equipment and Improvements Specifications. If CRC determines that the
PAC Equipment and Improvements and /or the Warranties do not conform to the PAC
Equipment and Improvements Specifications (reflecting any Change Orders), then: (i) CRC
shall provide to Developer written notice thereof; and (ii) Developer shall address the
non- conformity directly with the manufacturer, fabricator, and /or supplier, as applicable;
provided that, if Developer.incurs actual, reasonable, out -of- pocket expenses in connection
with addressing the non - conformity, then, upon receipt of reasonable documentation
evidencing such expenses, and in the ordinary course of CRC's business, CRC shall
reimburse Developer for such expenses.
(d) Statement. At such time that CRC confirms that the PAC Equipment and
Improvements and the Warranties conform to the PAC Equipment and Improvements
Specifications (reflecting any Change Orders), CRC shall execute a statement in favor of
Developer stating that Developer has: (i) acquired and installed (or caused the installation of)
the PAC Equipment and Improvements, and obtained (and delivered to CRC) the Warranties,
in accordance with the PAC Equipment and Improvements Specifications (reflecting any
Change Orders); and (11) no further obligations with respect to the PAC Equipment and
Improvements and the Warranties (including that CRC shall be responsible for pursuing any
claims under the Warranties).
(e) Sole Warranties. CRC acknowledges that: (1) Developer is not making any
independent warranties with respect to the manufacture, fabrication, and /or supply of the PAC
Equipment and Improvements; and (ii) although Developer is responsible for obtaining the
Warranties, Developer is not responsible or liable for: (A) enforcing the Warranties; or (B) a
failure by any manufacturer, fabricator, and /or supplier, as applicable, to honor the Warranties.
8. Acquisition - Payment.
(a) PaymentPeriod 1.
(i) During Payment Period 1, CRC shall pay the
Payment Period 1 Installments to Developer. Upon receipt thereof,
Developer timely shall make the next payment due to the Lender pursuant to
the Loan Documents; provided that, if a Payment Period 1 Installment
Payment is delayed, then Developer shall make the payment due to the
Lender promptly upon receipt of payment by CRC.
(ii) The Payment Period 1 Installments shall be: (A) in the amount
determined pursuant to Subsection 8(a)(iii); (B) paid in arrears, on or before
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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 PAC Equipment and
Improvements Disbursement Date, and thereafter within the period between
the first and fifth business days of each March, June, September, and
December during Payment Period 1, Developer shall deliver to CRC a
Projection Notice. The amount set forth in the Projection Notice shall be:
(A) based on Developer's reasonable projection of the interest payment on
the PAC Equipment and Improvements Disbursement or the Replacement
Loan, as applicable (using the same method of calculation as the Lender) for
the next quarter; and (B) the amount of the Payment Period 1 Installment due
and payable by CRC on or before the next occurring Payment Due Date.
(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); (6) paid in arrears, on or before
each Payment Due Date; and (C) subject to adjustment pursuant to
Subsection 8(c).
(iii) Because the Payment Period 2 Installments to which Developer is
entitled may fluctuate, on the first day of Payment Period 2, and thereafter
within the period between the first and fifth business days of each March,
June, September, and December during Payment Period 2, Developer shall
deliver to CRC a Projection Notice. The amount set forth in the Projection
Notice shall be: (A) based on Developer's reasonable projection of the
principal and interest payment on the PAC Equipment and Improvements
Disbursement or the Replacement Loan, as applicable (using the same
method of calculation as the Lender) for the next quarter; and (B) the amount
of the Payment Period 2 Installment due and payable by CRC on or before
the next occurring Payment Due Date.
(c) Adjustment. If the projected amount set forth in a Projection Notice was more or less
than the actual amount to which Developer was entitled on the Payment Due Date with respect
to which such Projection Notice applied, then, with the next Projection Notice, Developer shall
deliver to CRC an Offset/Addition Notice, Notwithstanding the terms and conditions of
Subsection 8(a)(iii) or 8(b)(iii), as applicable, on or before the next occurring Payment Due
Date, CRC shall pay to Developer the amount set forth in the current Projection Notice,
adjusted by the amount of the Offset/Addition Amount, as set forth in the Offset/Addition
Notice.
(d) Partial Prepayment. CRC may make a Partial Prepayment at any time; provided that,
if a Partial Prepayment is made more than 90 days before the maturity date of the Loan, then,
in connection with such Partial Prepayment, CRC shall be obligated to pay any prepayment
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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 PAC Equipment and Improvements Disbursement Balance or the
Replacement Loan Balance, as applicable.
(e) * Closing Payment: Subject to the exercise by CRC of the Full Prepayment Option, on
the date on which Payment Period 2 expires, CRC shall pay the Closing Payment to
Developer, thereby paying off the Purchase Price in full. Promptly thereafter, Developer shall
pay the Closing Payment to the Lender, thereby paying off the PAC Equipment and
improvements Disbursement or the Replacement Loan, as applicable, in full.
9. Acquisition -Full Prepayment.
(a) Payment Period 1. CRC may exercise the Full Prepayment Option, to be effective at
any time during Payment Period 1, by delivery of the Full Prepayment Notice. Within ten days
after receipt by Developer of the Full Prepayment Notice, CRC and Developer, each acting
reasonably and in accordance with the Loan Documents, shall agree on the Full Prepayment
Closing Date.
(b) Payment Period 2. CRC may exercise the Full Prepayment Option, to be effective at
any time during Payment Period 2, by delivery of the Full Prepayment Notice. Notwithstanding
- the foregoing, if there is a Replacement Loan, then, to the extent that the Replacement Loan
Documents prohibit the exercise of the Full Prepayment Option, CRC shall not have the right
to exercise the Full Prepayment Option so long as such prohibition is in effect; provided that,
regardless of any such prohibition in the Replacement Loan Documents, CRC shall have the
right to exercise the Full Prepayment Option during the 90 days immediately preceding the
expiration of Payment Period 2. Within ten days after receipt by Developer of the Full
Prepayment Notice, CRC and Developer, each acting reasonably, shall agree on the Full
Prepayment Closing Date; provided that, if the Full Prepayment Notice is delivered more than
90 days prior to the expiration of Payment Period 2, then the Full Prepayment Closing Date
shall not occur for at least 30 days after delivery of the Full Prepayment Notice.
(c) Full Prepayment Price. If CRC properly exercises the Full Prepayment Option, then,
in lieu of the remainder of the Purchase Price, CRC shall pay the Full Prepayment Price.
Promptly thereafter, Developer shall pay the Full Prepayment Price to the Lender, thereby
paying off the PAC Equipment and Improvements Disbursement or the Replacement Loan,
as applicable, in full.
10. PAC Equipment and Improvements Closing. On the PAC Equipment and Improvements Closing
Date, Developer shall transfer to CRC title to the PAC Equipment and Improvements. In connection with such
transfer: (a) CRC shall pay either the Closing Payment or the Full Prepayment Price, as applicable; and (b)
Developer shall deliver to CRC a fully executed bill of sale with full warranties of title transferring the PAC
Equipment and Improvements to CRC free of all liens, security interests, and equipment leaseholds, which bill
of sale shall be in a form agreed to by the parties in the exercise of their reasonable discretion.
11. Options.
(a) Fixed Rate. So long as: (i) there is no continuing Event of Default by CRC hereunder;
(ii) CRC has not: (A) defaulted under the Regions Tri -Party Agreement or the Regions
Collateral Assignment beyond applicable cure periods; or (B) taken any other action; the result
of which is that Developer no longer has the right to exercise the Fixed Rate Option; and
(iii) the Fixed Rate Option remains available under the Loan Documents; Developer, upon
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receipt of written request and otherwise in accordance with the Loan Documents, shall
exercise the Fixed Rate Option.
(b) Extension. So long as: (1) 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; (ii) 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 (6) 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.
(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 PAC Equipment and
Improvements Acquisition Agreement, this Contract, and the Loan Documents.
(b) Developer shall keep in full force and effect, without any violations by Developer, any
and all filings or registrations with any Agency necessary in connection with: (i) the
performance by Developer of its obligations under the Loan Documents; (ii) the acquisition of
the PAC Equipment and Improvements in accordance with this Contract and the PAC
Equipment and Improvements Acquisition Agreement; or (iii) the sale of the PAC Equipment
and Improvements to CRC in accordance with this Contract.
(c) If any proceeding, inquiry, or investigation is pending or threatened against Developer
or any property of Developer, an adverse decision with respect to which would materially and
adversely affect: (1) the business, operations, or financial condition of Developer; (ii) the
acquisition of the PAC Equipment and Improvements in accordance with this Contract and the
PAC Equipment and Improvements Acquisition Agreement; and /or (iii) the sale of the PAC
Equipment and Improvements to CRC in accordance with this Contract; then Developer shall:
(i) notify CRC immediately in writing; (ii) prepare and submit to CRC for its reasonable
approval a written plan for addressing and /or responding to such proceeding, inquiry, or
investigation; and (iii) address and /or respond to such proceeding, inquiry, or investigation in
accordance with the plan approved by CRC.
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(d) At all times, Developer shall: (1) keep the PAC Equipment and Improvements free from
any and all liens, claims, security interests, encumbrances, and restrictions, except for this
Contract; and (ii) defend the PAC Equipment and Improvements against the claims and
demands of others.
(e) Developer shall keep and maintain true, correct, accurate, and complete Books and
Records. All Books and Records shall be kept and maintained in accordance with generally
accepted accounting principles consistently applied.
(f) CRC and its attorneys, accountants, representatives, architects, engineers, and
consultants at all reasonable times shall have: (i) free access to, and rights of inspection of,
the Books and Records; and (ii) the right to audit, make extracts from, and receive from
Developer originals or accurate copies of, the Books and Records.
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
(11) 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
PAC Equipment and Improvements in any public office, except financing statements in favor
of the Lender; or (ii) cause or permit any such financing statement to be filed.
(c) Developer shall not: (i) change its name; (ii) merge into, or consolidate with, any other
entity, or otherwise reorganize; (iii) permit any change in the members of Developer or the
percentage of ownership in Developer, if the effect of such change is that Developer no longer
is controlled by, or under common control with, REI Real Estate Services, LLC; or (iv) fail to
promptly notify CRC in writing of any change in the members of Developer or the percentage
of ownership in Developer.
(d) Developer shall not: (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 PAC Equipment and Improvements, or any part thereof. If any mechanic's,
supplier's, or similar lien is filed against the PAC Equipment and Improvements, or any part thereof, for work
claimed to have been done for, or materials claimed to have been furnished to, either Developer or CRC, then
Developer or CRC, respectively, shall cause such mechanic's, supplier's, or similar Lien to be discharged of
record within 30 days after notice of the filing by bonding, or as provided or required by law. Nothing in this
Contract shall be deemed or construed to: (a) constitute consent to, or request of, the performance of any work
for, or the furnishing of any materials to, either party; or (b) give either party the right or authority to contract for,
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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 PAC Equipment and Improvements.
15. Preservation. If Developer fails to: (a) make any payment under the Loan Documents or the Regions
Tri -Party Agreement when due; or (b) timely observe or perform any obligation to be observed or performed
by it pursuant to the Loan Documents or the Regions Tri -Party Agreement; then: (a) CRC, at its option, but
without: (i) any duty or obligation to do so; or (ii) any waiver or release of any default by Developer; may make
any such payment or observe or perform any such obligation as necessary or appropriate to protect or defend:
(1) the PAC Equipment and Improvements Acquisition Agreement and /or the rights of Developer thereunder;
and/or (ii) the PAC Equipment and Improvements and /or the interest of Developer therein; and (b) Developer
shall pay, upon receipt of written demand, all reasonable costs and expenses incurred by CRC in connection
with making any such payment or observing or performing any such obligation (including, without limitation,
reasonable attorneys' fees).
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: (1) Installment Payment or the
Closing Payment; or (ii) other amount payable by CRC to Developer in connection with the
Regions Loan; when due, then such failure shall not be an Event of Default unless and until
the failure by Developer continues for a period of five business days after CRC pays to
Developer the delinquent installment Payment, Closing Payment, or other amount, together
with any late fees for which the Loan Documents provide. If Developer's failure to comply with
the terms and conditions of the Loan Documents is due to CRC's failure to satisfy its
obligations under the Regions Tri -Party Agreement or the Replacement Tri -Party Agreement,
then such failure by Developer shall not be an Event of Default.
(c) Developer's failure to comply with the terms and conditions of the PAC Equipment and
Improvements Acquisition Agreement, and the continuance of such failure beyond any
applicable cure period specified therein; provided that, if no cure period is specified, then such
failure shall not constitute 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 (ii) with respect to any other
obligation, if such failure is not cured within the Cure Period.
(e) Any: (i) Transfer by Developer, except as expressly permitted in this Contract or any
of the Loan Documents; or (ii) breach or violation of any covenant or agreement set forth in
Subsection 9(b), 9(c), 9(d). or 9(f) of the Regions Loan Agreement.
(f) An assignment or delegation by either party of any of its rights or obligations
hereunder, except as permitted by Section 19.
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(g) The liquidation or the sale, transfer, conveyance, assignment, pledge, or other
disposition of substantially all of the assets of CRC or Developer.
(h) CRC or Developer: (i) institutes or consents to any proceedings: (A) in insolvency or
bankruptcy; (B) for the adjustment, liquidation, extension or 'composition, or arrangement of
debts; or (C) for any other relief; under any Law with respect to the relief or reorganization of
debtors; (ii) is adjudicated a bankrupt, files an answer admitting bankruptcy or insolvency, or
in any manner is adjudged insolvent; (iii) makes an assignment for the benefit of creditors; or
(iv) admits in writing an inability to pay debts as they become due.
(1) Any proceeding: (1) in insolvency or bankruptcy; (11) 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.
(j) Any portion of the PAC Equipment and Improvements, or any substantial portion of
the other property or assets of CRC or Developer, is placed in the hands of any receiver,
trustee, or other officer or representative of any court, and such receiver, trustee, or other
officer or representative is not discharged or dismissed within 60 days, or CRC or Developer
consents, agrees, or acquiesces to the appointment of any such receiver, trustee, or other
officer or representative.
(k) Any lienholder or creditor shall initiate an action to enforce or foreclose a lien or
security interest on all or any portion of the PAC Equipment and Improvements, whether such
security interest or lien is superior, equal, or junior to the security interest or lien held therein
by the Lender.
(I) The making or filing of any levy or execution on, or any seizure, attachment, or
garnishment of, any portion of the PAC Equipment and Improvements or the interest of
Developer therein.
17. Remedies.
(a) Remedies. If there is an Event of Default, then the non - defaulting party, without
further notice or demand, shall have the right to exercise any rights and remedies available to
it at law or in equity. The rights and remedies available to the non - defaulting party shall
include, without limitation, the following:
(i) if the defaulting party has failed to perform any of its obligations under
this Contract, enjoining the failure or specifically enforcing the performance
of such obligation;
(11) 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
(ill) 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.
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(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: (1) constitute a waiver of any subsequent Event of Default; (ii) release or
relieve the other party from performing any of its obligations under this Contract; or
(iii) constitute an amendment or modification of this Contract. If Developer accepts any
Installment Payments during the continuance of an Event of Default by CRC, then such
acceptance shall not be construed as a waiver of: (i) such Event of Default; or (ii) any right or
remedy of Developer with respect to such Event of Default. The rights and remedies
hereunder are cumulative, and no: (i) right or remedy shall be deemed to be, or construed as,
exclusive of any other right or remedy hereunder, at law, or in equity; or (ii) failure to exercise
any right or remedy shall operate to prevent the subsequent exercise of such right or remedy.
(c) Damages. The non - defaulting party may recover from the defaulting party all
damages that the non - defaulting party incurs: (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 PAC Equipment and Improvements.
18. Notice. Any notice required or permitted to be given by either party to this Contract shall be in writing,
and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by facsimile,
with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of
receipt, addressed as follows: to Developer at 11711 North Pennsylvania Street, Suite 200, Carmel, Indiana
46032, Attn: Jeffrey Sporleder, Facsimile: 317 -573 -6055; and to CRC at 30 West Main Street, Suite 220,
Carmel, Indiana 46032, Facsimile: 317- 844 -3498, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., Wallack
Somers & Haas, PC, One Indiana Square, Suite 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
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 Replace :-rent 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 Deve' 7per from such performance.
20. Mutual Indemnification. Each of CRC and Developer shall indemnify and hold harmless Developer
and CRC, respectively, from and against any and all Claims arising from, or connected with: (a) the negligence
or wilful misconduct of: (i) CRC or Developer, respectively; or (ii) any party acting by, under, through, or on
behalf of CRC or Developer, respectively; and /or (b) the: (1) 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;
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and (ii) the resulting exercise by Developer or CRC, respectively, of its rights and remedies with respect to such
default.
21. Miscellaneous.
(a) Prior Agreements. Except in the case of the Regions Tri -Party Agreement, all prior
representations and agreements by or between Developer and CRC with respect to the
obligations set forth in this Contract are merged into, and expressed in, this Contract. This
Contract shall not be amended, modified, or supplemented, except: (I) by a written agreement
executed by both Developer and CRC; and (ii) as permitted by the Regions Tri -Party
Agreement or the Replacement Tri -Party Agreement, as applicable. This Contract may be
executed in separate counterparts, each of which shall be an original, but all of which together
shall constitute a single instrument.
(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. Subj pct to the terms and conditions of Section 19, this Contract, and all
of the terms and condition:, 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 PAC
Equipment and Improvements.
(d) Authority. Each person executing this Contract represents and warrants that: (i) he
or she has been authorized to execute and deliver this Contract by the entity for which he or
she is signing; and (ii) this Contract is the valid and binding agreement of such entity,
enforceable in accordance with its terms.
(e) Suits. All proceedings arising in connection with this Contract shall be tried and
litigated only in the state courts in Hamilton County, Indiana, or the federal courts with venue
that includes Hamilton County, Indiana. Developer waives, to the extent permitted under
applicable law: (1) 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 actor 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 d :�adlines for observation, performance, and satisfaction shall be
extended for the same period.
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IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the date set
forth above.
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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
By:
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
Ronald E. Carter, President
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IN WITNESS WHEREOF, Developer and CRC have executed this Contract on the date set
forth above.
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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REl Real Estate Services, LLC, sole
member
By:
Jeffrey S. Sporleder, CFO
CITY OF
CARMEL
SSION
Ronald E. Carter, President
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Index to Exhibits
Exhibit A Depiction of PAC Site
Exhibit B PAC Equipment and Improvements Schedule
Exhibit C PAC Equipment and Improvements Specifications
Exhibit D Terms and conditions for Fixed Rate Option
Exhibit E Terms and conditions for Extension Option
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Site Plan
i
EXHIBIT &C.-
PARCEL 7
Regional Performing Arts Center
Installment Purchase Contract No.
Meridian Music
Pianos
Description of Materials
2 Concert Grands,1 Steinway Model B, 3 Essex Model 123S and benches to
serve the Regional Performing Arts Center site.
A
D
EXHIBIT e:).�
PARCEL 7
Regional Performing Arts Center
Installment Purchase Contract No.
Van Ausdall & Farrar, Inc.
Phone System /Box office infrastructure
Description of Materials
Phone system, Box office pilot infrastructure to serve the Regional
Performing Arts Center site.
D
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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 Option has been exercised.
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Exhibit E
Terms and conditions of Extension Option
All capitalized terms used but not defined in this Exhibit or the Agreement shall have the meanings ascribed
to such terms in the Regions Loan Documents.
Not later than 120 days prior to the Maturity Date, CRC and Borrower may request an extension of the term of
the Regions Loan. Lender shall review and consider such request for an extension in accordance with Lender's
then - applicable underwriting standards, and will notify the CRC and Borrower as to whether such extension is
granted riot later than 60 days prior to the Maturity Date.
Z.tDoc:.rnentstShoup. JennylCrty of Carmel1Parcel 7 :PAC
Regions Addl 10h1- Regions and CT\PAC Box Office Phone and
Music.wpd
2 : SeptO
0
0
Regions Bank hereby is instructed to make a disbursement of Loan Proceeds from the Borrower Loan
Account to (or for the account of) Borrower in: (a) the amount of the "Total Authorized Disbursement" line in
the "Amount of Authorized Disbursement" column below; and (b) accordance with the terms and conditions
of the Agreement, the other Loan Documents, and the Disbursement Instructions.
Purpose of Authorized Disbursement
Amount of Authorized Disbursement
C oncep4 I4 it — S
t(,, u1/4)41
I YS q30
So® i
o
epos 44
Total Authorized Disbursement
,;$ l gs,'430 -
All terms used in these Disbursement Instructions without definition shall have the meanings ascribed thereto
in that certain Loan Agreement(Equipmentand Improvements), dated July22, 2010, by and between Regions
Bank and Carmel Theater Development Company, LLC.
Dated: q / 7 / /o
CITY OF CARMEL REDEVELOPMENT
COMMISSION
By:
Printed: des S• 014
Title: FXccor Vct_ Vf ^e aor.
It is acknowledged and agreed by the parties that CRC has reserved the right to require, as a condition of
authorizing disbursement of Loan Proceeds from the Borrower Loan Account to (or for the account of)
Borrower: (a) completion of a satisfactory inspection by CRC of the portions of the Equipment and /or the
Improvements to which the disbursement relates; and (b) receipt of customary submittals.
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9/16/2010
Page 1 of 1
PARCEL 7, CENTER FOR THE PERFORMING ARTS
STEINWAY PIANOS - BID TABULATION
BIDDER NAME:
Meridian Music
BASE BID AMOUNT:
$
222,840
ALTERNATES:
No. 01 - Steinway Model B -211
$
69,020
No. 02 - Steinway Model A -188
$
61,285
No. 03 — Essex Model 123S
$
14,766
No. 04 — Benches
Included
0
PARCEL 7, CENTER FOR THE PERFORMING ARTS
C. BECHSTEIN PIANOS - BID TABULATION
BIDDER NAME:
BASE BID AMOUNT:
ALTERNATES:
No. 01 - C. Bechstein Model A -190
No. 02 - C. Bechstein Model A -1
No. 03 — Kawai Model UST -9
No. 04 — Benches
0
9/16/2010
Page 1 of 1
PURCHASE ORDER
Carmel Theater Development
Company, LLC - Jeff Sporleder
1 171 1 N. Pennsylvania Street, Suite
200
Carmel, IN 46032
476559
TOf4eN I 0114 0) / i Vs / C,
SHIP
"rk, 1-'4 1140 j uM - MI ke t10ht9t
ADDRESS
771 342 /`t ,/
ve.t t.A.4._ Sw
ADDRESS
i27Z• Clef At er/1.144 ."11' 44-
CIT�+STATE, ZIP ` ' l 4 L /
C4t.ef� r%V (a °37
'i
CITYA STATE, ZIP
1..4r •s.11 , M/V 46103Z
DATE
DATE REQUIRED
11 /e /io
TERMS
HOW SHIPPED
REQ. NO. OR DEPT.
FOR
.
QUANTITY
DESCRIPTION
PRICE
UNIT
1
Z
p r
CoAtei•� Gal% anal ® nod t. f i)
222, SYO
`
2
3
t1A90.y Mode ,(�
74e e ode 1 8
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11
12
13
14
15
16
17
18
19
20
21
.
22
. .
Zei t 1 4340'
-
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
''
a_
ackung
8131
ORIGINAL
PURCHASE ORDER
Carmel Theater Development
Company, LLC - Jeff Sporleder
1 171 1 N. Pennsylvania Street, Suite
200
Carmel, IN 46032
1176556
T4�
U Ci A A 05 Cia l i £ r tar T /t C
SHIP TO p
C t I„( Pe Nr J/`� s' S L' 6.n a„
co, r p/M .„ �
ADDRESS
t o C4SI 75--1--(--- 5- e--
ADDRESS / % / 'n _
3.53- ;9 C...e.l7'., I 1 w
CITY, STATE, ZIP
r„ oil ; c A Oo);f rev u6/ Zso
CITY, STATE, ZIP
Cam.,- f rA) c/ &03z -
DATE
J
DA l E REQUIRED
TERMS
HOW SHIPPED
REQ. NO. OR DEPT.
FOR
QUANTITY
DESCRIPTION-
PRICE
UNIT
1
I
Pko -v sytie , - 6e 4r , �� �1,t
74, 657
2
/
'Puff, .�•,� 4/��J
3
4
I
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x d -C}ic -e 1 r /o i rg3I c
I qst —
5
PI. ecdL rt1 -a— 4-o 0. ti`s -,-ti
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
86 6/f6 (00
IMPORTANT
PLEASE SEND COPIES OF YOUR IN'OICE WITH
PURCHASE ORDER NUMBER MUST APPEAR ON ALL
°VOICES - PACKAGING, ETC.
rLEASE NOTIFY US IMMEDIATELY IF YOU ARE UNABLE
TO COMPLETE ORDER BY DATE SPECIFIED.
ORIGINAL BILL OF LADING.
PURCHASING AGENT
adarns
8131
ORIGINAL