HomeMy WebLinkAboutRegions/Carmel Theater Development Co. - Network Switches - $62,864.55m
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INSTALLMENT PURCHASE CONTRACT
(Network Switches)
This Installment Purchase Contract (Network Switches) (the "Contract "), by and between
Carmel Theater Development Company, 4C (the "Developer"), and The City of Carmel Redevelopment
Commission ( "CRC "), is executed this CC day of October, 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 Network Equipment 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 Network Equipment Costs shall mean the sum of: (a) the Network Equipment Costs; (b) the
Lender Fees in connection with the Network Equipment Disbursement; and (c) the Loan Costs for the Network
Equipment 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 Network Equipment in accordance with this Contract and the Network Equipment 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 Network Equipment 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 Network Equipment
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 Network Equipment 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.
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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 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 B.
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) Network Equipment 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 Network Equipment; 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 Network Equipment Disbursement Balance or the
Replacement Loan Balance, as applicable, on the Full Prepayment Closing Date; plus (b) interest thereon that
has: (i) accrued at the Loan Rate; and (ii) not been paid prior to the Full Prepayment Closing Date (stated
alternatively, interest that has accrued, but not been paid, as part of the Installment Payments); plus (c) if the
Full Prepayment Price is being paid more than 90 days before the maturity date of the Loan, any applicable
prepayment premiums or similar payments due under the Loan Documents with respect to a prepayment of
the Network Equipment 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.
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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
Network Equipment 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 Network
Equipment Disbursement Balance or the Replacement Loan Balance, as applicable, under the Loan
Documents.
Network Equipment shall mean S62,864.55 of network switches and related improvements to support
connections to the City's network and the network serving that certain real estate in the City commonly known
as "Parcel 7" and located generally south of City Center Drive, east of 3rd Avenue Southwest, and west of the
Monon Trail. The Network Equipment is described in the Network Equipment Specifications.
Network Equipment Acquisition Agreement shall mean one or more agreements entered into by Developer
and the Supplier, which agreement shall: (a) be consistent with the Network Equipment Schedule and the
Network Equipment 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.
Network Equipment Closing Date shall mean the date of the closing with respect to the transfer of the
Network Equipment. If such closing has not occurred at such time as Payment Period 2 expires, then the
Network Equipment Closing Date shall be the date on which Payment Period 2 expires.
Network Equipment Costs shall mean the actual, out -of- pocket costs incurred by Developer to acquire and
install (or cause the installation of) the Network Equipment in accordance with this Contract and the Network
Equipment Acquisition Agreement.
Network Equipment Disbursement shall mean a disbursement by Regions of proceeds of the Regions Loan
for the purposes of funding the Aggregate Network Equipment Costs.
Network Equipment Disbursement Balance shall mean that portion of the principal balance of the Regions
Loan disbursed to pay the Aggregate Network Equipment Costs, which portion remains outstanding. The
Network Equipment 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 Network Equipment Disbursement; and (b) the Aggregate Applied
Amounts.
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Network Equipment Disbursement Date shall mean the date of the Network Equipment Disbursement.
Network Equipment Schedule shall mean the schedule for the acquisition and installation of the Network
Equipment, which schedule (or a reference as to the location thereof) is attached hereto as Exhibit A.
Network Equipment Specifications shall mean the specifications for: (a) the Network Equipment,
including specific identification and /or descriptions of the Network Equipment; and (b) the warranties from
manufacturers, fabricators, and suppliers to be obtained in connection with the acquisition and installation of
the Network Equipment, which warranties shall: (i) run in favor of CRC; and (ii) constitute the Warranties. The
Network Equipment Specifications are attached hereto as Exhibit A.
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.
Partial Prepayment shall mean a payment of a portion of the outstanding principal balance of the Network
Equipment 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 Network Equipment Disbursement Date; and
(b) ending on April 7, 2012.
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the Network
Equipment, the amount of which shall be equal to: (a) the Loan Rate; multiplied by (b) the Network Equipment
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 Network
Equipment, the amount of which shall be equal to an amount that will amortize the Network Equipment
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.
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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 Network Equipment 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 Network Equipment.
Surviving Supplier Obligations shall mean obligations of the Supplier under the Network Equipment
Acquisition Agreement (other than the obligations specified in the Warranties) that survive the acquisition and
installation by Developer of the Network Equipment.
Transfer shall mean: (a) any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon, the Network Equipment or any interest therein; or (b) any granting of a security interest
in the Network Equipment.
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Unamortized Balance shall mean the amount of the Network Equipment 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 Network Equipment Specifications to be obtained in
connection with the acquisition and installation of the Network Equipment, 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 Network Equipment Disbursement; (8) after the
Network Equipment Disbursement: (1) acquire the Network Equipment and
the Warranties in accordance with the Network Equipment Acquisition
Agreement; and (2) install (or cause the installation of) the Network
Equipment; (C) if applicable, close the Replacement Loan, including
executing.and delivering the Replacement Loan Documents; and (D) satisfy
its obligations under the Loan Documents; and
(ii) the Network Equipment Disbursement shall be used only to finance
the Aggregate Network Equipment 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) Network Equipment 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
Network Equipment 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. Network Equipment Disbursement.
(a) Date. The Network Equipment Disbursement Date shall be established mutually by
CRC and Developer.
(b) Documents. In connection with the Network Equipment 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 (6) the: (1) execution and delivery of this
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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 Network
Equipment 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 Network Equipment
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 Network Equipment
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 Network Equipment
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 (8) perform its obligations hereunder; (iv) CRC
has been authorized by proper action to: (A) execute and deliver this Contract; and
(6) 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: (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; (11) 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 (8) perform its obligations
hereunder; (iv) Developer has been authorized by proper action to: (A) execute and deliver
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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 Network Equipment
Acquisition Agreement: (A) Developer shall have good and marketable title to the Network
Equipment, 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 Network Equipment shall be on file in any public office.
6. Change Orders. If CRC desires to make a change to the Network Equipment 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
Network Equipment Costs; and (b) that, if implementing the Change Order Request would increase the
Network Equipment Costs, then CRC shall pay the amount of such increase. So long as CRC agrees to pay
any increase in the Network Equipment 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 Network Equipment
Acquisition Agreement; and (b) with respect to items of the Network Equipment, title to which has not been
transferred to Developer.
7. Acquisition of Network Equipment.
(a) Acquisition Agreement. Developer shall: (i) enter into the Network Equipment
Acquisition Agreement; (ii) comply with all of its obligations under the Network Equipment
Acquisition Agreement; (iii) keep the Network Equipment Acquisition Agreement in full force
and effect, without any default by Developer thereunder; (iv) not amend or modify the
Network Equipment 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 Network Equipment Acquisition Agreement; and
(v) enforce the terms and conditions of the Network Equipment 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 Network Equipment
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 Network
Equipment, Developer shall collaterally assign the Network Equipment Acquisition Agreement
to CRC.
(b) Acquisition. Developer shall: (i) acquire title to, and install (or cause the installation
of), all of the Network Equipment in accordance with the Network Equipment Acquisition
Agreement, the Network Equipment Schedule, and the Network Equipment 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 Network Equipment Costs exceed the proceeds of the Network
Equipment 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 Network Equipment and obtained (and delivered to CRC) the Warranties,
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CRC shall check the Network Equipment and the Warranties against the Network Equipment
Specifications. If CRC determines that the Network Equipment and /or the Warranties do not
conform to the Network Equipment 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 Network Equipment and the
Warranties conform to the Network Equipment 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 Network Equipment, and obtained
(and delivered to CRC) the Warranties, in accordance with the Network Equipment
Specifications (reflecting any Change Orders); and (ii) no further obligations with respect to
the Network Equipment and the Warranties (including that CRC shall be responsible for
pursuing any claims under the Warranties).
(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
Network Equipment; 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) Payment Period 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
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 Network Equipment
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 Network Equipment
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.
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(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 Network Equipment 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 Network Equipment 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 Network Equipment
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
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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 Network Equipment Disbursement or the Replacement Loan, as applicable,
in full.
10. Network Equipment Closing. On the Network Equipment Closing Date, Developer shall transfer
to CRC title to the Network Equipment. 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 Network Equipment 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 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
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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 (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.
(a) Developer shall comply with all Laws in: (i) the conduct of its business and other
operations; and (ii) the performance of its obligations under the Network Equipment
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 Network Equipment in accordance with this Contract and the Network Equipment
Acquisition Agreement; or (iii) the sale of the Network Equipment 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 Network Equipment in accordance with this Contract and
the Network Equipment Acquisition Agreement; and/or (iii) the sale of the Network Equipment
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.
(d) At all times, Developer shall: (1) keep the Network Equipment free from any and all
liens, claims, security interests, encumbrances, and restrictions, except for this Contract; and
(ii) defend the Network Equipment 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.
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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: (i) file any financing statement covering all or any portion of the
Network Equipment 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 Network Equipment, or any part thereof. If any mechanic's, supplier's,
or similar lien is filed against the Network Equipment, 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 Network Equipment.
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 Network Equipment Acquisition Agreement and /or the rights of Developer thereunder; and /or (ii) the
Network Equipment 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).
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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.
(c) Developer's failure to comply with the terms and conditions of the Network
Equipment Acquisition Agreement, and the continuance of such failure beyond any applicable
cure period specified therein; provided that, if no cure period is specified, then such failure
shall not constitute an Event of Default unless such failure continues for 15 days.
(d) the failure of Developer or CRC to observe or perform any term or condition of this
Contract to be observed or performed by Developer or CRC, respectively: (i) with respect to
the obligation to pay money (other than payment by CRC of an Installment Payment), if such
failure is not cured within ten days after such payment is due; and (ii) with respect to any
other obligation, if such failure is not cured within the Cure Period.
(e) Any: (i) Transfer by Developer, except as expressly permitted in this Contract or any
of the Loan Documents; or (ii) breach or violation of any covenant or agreement set forth in
Subsection 9(b), 9(c), 9(d), or 9(f) of the 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; (B) for the adjustment, liquidation, extension or composition, or arrangement of
debts; or (C) for any other relief; under any Law with respect to the relief or reorganization
of debtors; (ii) is adjudicated a bankrupt, files an answer admitting bankruptcy or insolvency,
or in any manner is adjudged insolvent; (iii) makes an assignment for the benefit of creditors;
or (iv) admits in writing an inability to pay debts as they become due.
(i) Any proceeding: (i) in insolvency or bankruptcy; (ii) for the adjustment, liquidation,
extension or composition, or arrangement of debts; or (iii) for any other relief; under any Law
with respect to the relief or reorganization of debtors is instituted against CRC or Developer,
and such proceeding is not discharged or dismissed within 60 days.
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(j) Any portion of the Network Equipment, 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 Network Equipment, 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 Network Equipment or the interest of Developer therein.
17. Remedies.
(a) Remedies. If there is an Event of Default, then the non - defaulting party, without
further notice or demand, shall have the right to exercise any rights and remedies available
to it at law or in equity. The rights and remedies available to the non - defaulting party shall
include, without limitation, the following:
(i) if the defaulting party has failed to perform any of its- obligations
under this Contract, enjoining the failure or specifically enforcing the
performance of such obligation;
(ii) if the defaulting party has failed to perform any of its obligations
under this Contract (other than the obligation to pay any amounts due to the
non - defaulting party), performing the obligation that the defaulting party has
failed to perform; provided that the performance by the non - defaulting party
of such obligation shall not be construed to be a waiver of the Event of
Default; and
(iii) if CRC is the defaulting party, then Developer may accelerate
payment of the Full Prepayment Price, which would have the same effect as
if CRC had exercised the Full Prepayment Option; provided that the Full
Prepayment Closing Date shall occur on a date designated by Developer.
(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: (i) by reason of any Event of Default by the
defaulting party; and/or (ii) in connection with exercising its rights and remedies with respect
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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 Network Equipment..
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 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 all Claims arising from, or connected with: (a) the negligence
or wilful misconduct of: (i) CRC or Developer, respectively; or (11) 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: (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.
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(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 Network Equipment.
(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: (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:
(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.
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CARMEL THEATER DEVELOPMENT
COMPANY, LLC
By: REI Real Estate Services, LLC, sole
member
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
Ronald E. Carter, President
21Octl0
(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 Network Equipment.
(d) Authority. Each person executing this Contract represents and warrants that: (1) 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: (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:
(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.
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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
REDEVELOPMENT COMMISSION
By:��
Ronald E. Carter, President
21 Oct 10
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Index to Exhibits
Exhibit A Network Equipment Schedule and Specifications
Exhibit B. Terms and conditions for Fixed Rate Option
Exhibit C Terms and conditions for Extension Option
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EXHIBIT /fir
PARCEL 7
Regional Performing Arts Center
Installment Purchase Contract No.
TigerDirect.com
Campus Security
t,52,4 u.90 Sunk -Cih5S
Description of Materials
Network switches to serve the Regional Performing Arts Center site.
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Exhibit B
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 C
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 not later than 60 days prior to the Maturity Date.
Z: \Documents \Shoup, Jenny \City of Carmel\Parcel 7lPAC
Regions Addl 10M- Regions and CllFourth Amendment -6
ICs \Network Switches.wpd
210c110
PURCHASE ORDER
Carmel Theater Development
Company, LLC - Jeff Sporleder
1 17 1 1 N. Pennsylvania Street, Suite
200
Carmel, IN 46032
476667
TO -` 9 e r D � r e c,+ . C D iv
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Ce TO
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ADDRESS
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ADDRESS
CITY, STATE, ZIP
CITY, STATE, ZIP
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DATE
10 /jf- j am
DATE REQUIRED
TERMS.
HOW SHIPPED
REQ. NO. OR DEPT.
FOR . .' .
QUANTITY
- DESCRIPTION
PRICE
. UNIT ..
1
2
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62, $ %(t
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5
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9
10
11
12
13
14
15
16
17
18
19
20
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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
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AGENT
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adants
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ORIGINAL/