HomeMy WebLinkAboutGarage Installment Purchase Contract - 3/19/2009 GARAGE INSTALLMENT PURCHASE CONTRACT
This Garage Installment Purchase Contract(the"Contract"),by and among Carmel Lofts LLC
(the"Developer"),Carmel ofts Garage, LLC("CLG"),and The City of Carmel Redevelopment Commission
("CRC"), is executed this(this titAday of Ka , 2009.
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 made by CRC that, by the Loan Documents, is required to be applied to amortize the
Loan Balance over the Amortization Period (or the remainder thereof, in the case of the exercise of the
Extension Option or the closing of the Replacement Loan)at the Loan Rate,which amounts also shall reduce
the outstanding balance of the Purchase Price.
Aggregate Garage Construction Costs shall mean the sum of: (a)the Garage Construction Costs; (b)the
Lender Fees for the Garage Construction Loan; and (c)the Loan Costs for the Garage Construction Loan.
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; (a)the Warranties;(b)acquisition
of the materials to construct the Garage;and(c)construction of the Garage; in accordance with this Contract,
the Project Agreement, and the Garage Construction Contract (including the plans and specifications
• necessary or related thereto). The foregoing shall include, without limitation, all of the books and records
pertaining to the Fixed Rate Fees, the Loan Rate, the Aggregate Garage Construction Costs, the Loan
Balance, the Unamortized Balance, the Partial Prepayments, the Aggregate Applied Amounts, and the
Purchase Price.
Building shall mean the building to be constructed on the Project Site pursuant to the Project Agreement.
Building Lender shall mean the lender providing the construction or permanent loan for the Building, as
applicable.
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 Final Plans of a change that has been: (a) proposed in a Change Order Request; and
(b) approved by Developer.
Change Order Request shall mean a written request by CRC or Developer for a change to the Final Plans,
as applicable to the Garage.
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 Loan Balance; plus(b)any unpaid interest that has
accrued on the Loan Balance at the Loan Rate; as of the date on which Payment Period 2 ends.
Collateral Assignment shall mean a Collateral Assignment,Lock Box,and Security Agreement substantially
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in the form attached hereto as Exhibit C.
Contractor shall mean Keystone Construction Corp. The Contractor is the"General Contractor" under the
Project Agreement.
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 written notice specifying the nature of the failure;
provided that, if the failure is of such a nature that it cannot be remedied within 30 days, despite reasonably
diligent efforts, then the 30 day period shall be extended as reasonably may be necessary for the defaulting
party to remedy the failure, so long as the defaulting party: (a) commences to remedy the failure within the
30 day period; and (b) diligently pursues such remedy to completion.
Default Rate shall mean the default rate of interest under the Loan Documents.
Event of Default shall have the meaning set forth in Section 16.
Executive Director shall mean the Executive Director of CRC (currently Les Olds).
Extension Option shall mean the option to extend the term of the Garage Construction Loan for a period of
five years, which option may be exercised on the terms and conditions set forth in Exhibit E.
Final Inspection shall mean the final inspection of: (a)the Garage; and (b)the other portions of the Project
that impact the Garage; pursuant to the Project Agreement.
Final Plans shall have the meaning ascribed to such term in the Project Agreement
Fixed Rate Fees shall mean, if CLG exercises the Fixed Rate Option at the request of CRC, the regular
(non-default)fees'and costs actually paid by CLG to the Lender in connection with such exercise.
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 date on
which the Full Prepayment Price is to be paid. If the closing with respect to the transfer of the Garage has
not occurred as of the Full Prepayment Closing Date,then the Full Prepayment Closing Date also shall be the
Garage 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 satisfy its obligation in full
with respect to the payment of the Purchase Price in advance of the expiration of Payment Period 2 by paying
the Full Prepayment Price; provided that, if the closing with respect to the conveyance of the Garage has not
occurred as of the Full Prepayment Closing Date, then such closing shall occur on the Full Prepayment
Closing Date(with the result being that the Full Prepayment Date and the Garage Closing Date are one and
the same).
Full Prepayment Price shall mean an amount equal to: (a) the Purchase Price; less (b) the Aggregate
Applied Amounts; less (c) the aggregate amount of all Partial Prepayments made by CRC, regardless of
whether the Garage Construction Lender has applied all such Partial Prepayments to reduce the outstanding
principal balance of the Loan; plus (d) any accrued and unpaid Lender Fees, Loan Costs, and interest; and
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plus (e) the amount of any applicable prepayment premiums or similar payments due under the Loan
Documents.
Garage shall mean a two-level underground parking garage to be constructed on the Project Site in
accordance with the Project Agreement, which parking garage shall contain approximately 400 parking
spaces, together with garage entrances and exits, ramps, elevator lobbies, and related facilities.
Garage Closing Date shall mean the date of the closing with respect to the transfer of the Garage. If such
closing has not occurred at such time as Payment Period 2 expires, then the Garage Closing Date shall be
the date on which Payment Period 2 expires.
Garage Construction Contract shall have the meaning ascribed to the term"Construction Contract"in the
Project Agreement, to the extent that such term is applicable to the contract for construction of the Garage;
provided that it shall not be unreasonable for CRC to reject the Garage Construction Contract if the Garage
Construction Contract: (a) does not reflect the obligation of Developer to obtain the Warranties; or
(b) otherwise is inconsistent in any way with the terms and conditions of the Project Agreement or this
Contract.
Garage Construction Costs shall mean the cost to construct the Garage,as evidenced by the price set forth
in the Garage Construction Contract.
Garage Construction Lender shall mean the financial institution making the Garage Construction Loan.
Garage Construction Loan shall mean a loan to CLG in the original principal amount of$8,000,000.00,the
proceeds of which shall be used to finance a portion of the Aggregate Garage Construction Costs,which loan
shall: (a) have a term of at least seven years; and (b) provide for: (i)interest at a rate accepted by CRC and
CLG; (ii) interest only payments during Payment Period 1; (iii) amortization of the Loan Balance over the
Amortization Period at the Loan Rate;(iv)quarterly payments that change if and when the Loan Rate changes,
subject to the exercise of the Fixed Rate Option; and (v)the Extension Option.
Garage Construction Loan Closing shall mean the closing with respect to the Garage Construction Loan.
Garage Construction Loan Closing Date shall mean the date of the Garage Construction Loan Closing.
Garage Construction Loan Documents shall mean the documents evidencing and securing the Garage
Construction Loan, including, without limitation, the "Loan Agreement", the "Promissory Note", and the
Collateral Assignment.
Huntington Loan.shall mean the construction loan for the Building made to Developer by Huntington Bank.
Initial Payment shall mean a payment from CRC to Developer, the amount of which shall be equal to the
interest payable on the Loan Balance at the Loan Rate from the Garage Construction Loan Closing Date to
the last day of the calendar month in which the Garage Construction Loan Closing Date occurs.
Installment Payments shall mean the Payment Period 1 Installments or the Payment Period 2 Installments,
as applicable.
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, the Garage Construction Lender or the Replacement Lender.
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Lender Fees shall mean all lender fees and costs actually incurred and paid by CLG under the Loan
Documents,including,without limitation and if applicable:(a)the fees incurred in connection with the exercise
of the Extension Option; (b) the Fixed Rate Fees; and (c) costs and expenses that, under the terms and
conditions of the Collateral Assignment, expressly constitute Lender Fees; provided that, Lender Fees shall
not include any fees or costs incurred as a result of a default by CLG under the Loan Documents, which
default is not attributable to an Event of Default by CRC under this Contract, the Project Agreement,the Tri-
Party Agreement, or the Master Loan Program Agreement. To the extent that fees and costs are included
in Lender Fees, such fees and costs shall not be included in Loan Costs.
Loan shall mean the Garage Construction Loan or the Replacement Loan, as applicable.
Loan Balance shall mean that portion of the outstanding principal balance of the Garage Construction Loan
disbursed to pay the Aggregate Garage Construction Costs;provided that,in no event shall the Loan Balance
exceed: (a)$8,000,000.00; plus(b)Lender Fees and Loan Costs with respect to Garage Construction Loan;
minus (c) the Aggregate Applied Amounts. If the Replacement Loan is obtained, then, from and after the
closing with respect to the Replacement Loan, the 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; provided
that,in no event shall the Loan Balance exceed: (a)$8,000,000.00; plus(b)Lender Fees and Loan Costs with
respect to the Replacement Loan; minus (c) the Aggregate Applied Amounts. The Loan Balance shall be
reduced by any Partial Prepayments that have been made by CRC to Developer, even if the Garage
Construction Lender has not yet applied any such Partial Prepayments to reduce the outstanding principal
balance of the Garage Construction Loan.
Loan Costs shall mean the actual, out-of-pocket costs incurred by CLG and Developer to close the Garage
Construction Loan and/or the 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 Garage Construction Loan Documents or the Replacement
Loan Documents.
Loan Rate shall mean the per annum rate of interest accruing on the Loan Balance under the Loan
Documents; provided that the Loan Rate shall exclude the interest differential between the Default Rate and
the regular(non-default)rate of interest if the Default Rate has been applied with respect to a default by CLG
under the Loan Documents, which default is not attributable to an Event of Default by CRC under this
Contract, the Project Agreement, the Tri-Party Agreement, or the Master Loan Program Agreement.
Master Loan Program Agreement shall mean that certain Master Loan Program Agreement by and between
CRC and Lender dated December 30, 2008 as amended by that certain First Amendment to Master Loan
Program Agreement datedC4 tv v'1 tcj , 2009.
Memorandum shall mean a memorandum in the form attached hereto as Exhibit B.
Offset/Addition Amount shall mean the amount by which:(a)the projected Initial Payment;or(b)a projected
Installment Payment;set forth in a Projection Notice either exceeded or fell short of the amount of the Initial
Payment or 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: (i) the Initial
Payment;or(ii)an installment Payment;set forth in a specified Projection Notice either exceeded or fell short
of the amount of the Initial Payment or 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 Purchase Price, which payment is made by
CRC in addition to the Initial Payment and/or an Installment Payment.
Payment Due Date shall mean: (a) during Payment Period 1, the date on which CLG is obligated to make
a payment of accrued interest on the Loan pursuant to the Loan Documents(including,without limitation,the
last day of Payment Period 1, as the Loan Documents shall contemplate a payment by CLG of accrued
interest on the last day of Payment Period 1);and(b)during Payment Period 2,the first day of each quarter.
Payment Period 1 shall mean the period:(a)beginning on the Garage Construction Loan Closing Date; and
(b)ending on the last day of the calendar month in which the second anniversary of the Garage Construction
Loan Closing Date occurs.
Payment Period 1 Installments shall mean quarterly installment payments for the purchase of the Garage,
the amount of which shall be equal to the: (a) Loan Rate; multiplied by(b)the Loan Balance; and multiplied
by (c) 1/4; provided that the exact amount of each Payment Period 1 Installment shall be determined in
accordance with Subsection 8(a)(iii).
Payment Period 2 shall mean the period: (a) beginning on the day after Payment Period 1 ends; and
(b) ending on the maturity date of the Garage Construction Loan, as the same may be extended by the
exercise of the Extension Option; provided that, 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 Garage
in an amount that will amortize the Loan Balance over the Amortization Period (or the remainder thereof, in
the case of the exercise of the Extension Option or the closing of the Replacement Loan) at the Loan Rate
(thereby reducing the outstanding balance of the Purchase Price).
Project shall mean the project to be constructed on the Project Site by Developer pursuant to the Project
Agreement.
Project Agreement shall mean that certain Project Agreement by and between CRC and Developer dated
as of January 5, 2009, as amended by that certain First Amendment to Project Agreement dated
t 9 , 2009.
Project Site shall mean that certain real estate more particularly depicted and/or described on Exhibit A. The
Project Site is the"Project Site" under the Project Agreement.
Projection Notice shall mean a written notice setting forth Developer's reasonable projection of the amount
of: (a)the Initial Payment; or(b) the Installment Payment for a particular quarter.
Purchase Price shall mean $8,000,000.00; which represents the "gap" between the $13,000,000.00
estimated cost to acquire the materials to construct, construct, and finance the Garage and the
$5,000,000.00 of bond proceeds estimated to be obtained by Developer. Payment of the Purchase Price
shall be made through the Initial Payment, the Installment Payments, and the Closing Payment.
Put Right shall mean the right of Developer to require CRC to accept a conveyance of the Garage at any time
after the Put Trigger Date.
Put Trigger Date shall mean the date that is 180 days after the last to occur of the date on which:
(a)construction of the Project is completed;(b)the Final Inspection is completed;and(c)any material defects
identified in the Final Inspection have been remedied.
Replacement Lender shall mean the financial institution making the Replacement Loan.
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Replacement Loan shall mean a financing (or a series of financings) comprised of a loan (or a series of
loans) to CLG, 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 Documents shall mean the documents evidencing and securing the Replacement Loan.
Replacement Tri-Party Agreement shall mean an agreement by and among CRC,CLG, Developer,and the
Replacement Lender replacing the Tri-Party Agreement,which agreement shall contain terms and conditions
substantially similar to the Tri-Party Agreement, modified as necessary to reflect the Replacement Loan.
Surviving Contractor Obligations shall mean obligations of the Contractor under the Garage Construction
Contract(other than the obligations specified in the Warranties)that survive:(a)the acquisition by Developer
of the materials to construct the Garage; or(b)the construction of the Garage.
Transfer shall mean: (a)any sale, transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon,the Garage or the materials to construct the Garage, or any interest in the foregoing;or
(b)any granting of a security interest in the Garage or the materials to construct the Garage. Notwithstanding
the foregoing, neither: (a) any encumbrances created by the Loan Documents or required by the Project
Agreement; nor(b)the mortgage securing the Huntington Loan; shall constitute a Transfer.
Tri-Party Agreement shall mean a Tri-Party Agreement substantially in the form attached hereto as Exhibit F.
Unamortized Balance shall mean the amount of the Loan Balance on the maturity date of the Garage
Construction 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 mean the amount of the Loan Balance on the maturity of such prior Replacement Loan.
Warranties shall mean the warranties specified in the Final Plans,as applicable to the Garage,to be obtained
in connection with the acquisition of the materials to construct the Garage,which warranties shall run in favor
of CRC.
2. General Obligations.
(a) Garage Construction Loan. Subject to the terms and conditions of this Contract:
(i) CLG shall: (A) close the Garage Construction Loan, including
executing and delivering the Garage Construction Loan Documents; (B) if
applicable,close the Replacement Loan,including executing and delivering
the Replacement Loan Documents;and(C)satisfy its obligations under the
Loan Documents;
(ii) the proceeds of the Garage Construction Loan shall be used only
to finance the Aggregate Garage Construction Costs; provided that, if the
Replacement Loan is obtained,then the proceeds of the Replacement Loan
may be used to refinance the Unamortized Balance and pay Lender Fees
and Loan Costs with respect to the Replacement Loan; and
(iii) Developer shall comply with all of its obligations under the Project
Agreement with respect to the construction of the Garage.
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(b) Fixed Rate Option. Upon receipt of written request by CRC, and payment by CRC
of any Fixed Rate Fees that are required to be paid at the time of the exercise of the Fixed
Rate Option(as opposed to any Fixed Rate Fees that are included in the Loan Balance and,
accordingly, paid as part of the Installment Payments), CLG shall exercise the Fixed Rate
Option; provided that CLG shall not exercise the Fixed Rate Option unless requested by
CRC.
(c) Garage Conveyance. Subject to the terms and conditions of this Contract:
(i)Developer shall convey to CRC;and(ii)CRC shall purchase;fee simple title to the Garage
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. If necessary for
financing purposes, Developer either may: (i)exclude from the legal description in the deed
by which fee simple title to the Garage is conveyed to CRC; or(ii) cause to be retained in
such deed the right to require CRC to reconvey to Developer or its nominee fee simple title
to; a number of parking spaces in the Garage,which number shall not exceed the lesser of:
(i)the number of residential units in the Project,multiplied by 1.5;or(ii)the number of parking
spaces on the bottom level of the Garage;without a resulting change in the Purchase Price
or the Full Prepayment Price,as applicable;provided that:(i)the parking spaces not retained
(or reacquired) by Developer or its nominee shall be located in blocks of no fewer than 50
parking spaces; and (ii) if Developer or its nominee retains parking spaces, or later
reacquires parking spaces from CRC,then Developer or its nominee shall have the right to
reconvey such parking spaces to CRC.
(d) Memorandum. Contemporaneously with the execution of this Agreement,the parties
shall execute and record the Memorandum.
3. Loan Closing. Subject to the terms and conditions of this Contract,the Garage Construction Loan
Closing Date shall be established mutually by CRC and Developer. The Garage Construction Loan Closing
shall take place at the office of the Garage Construction Lender, or at such other place as CRC and CLG
mutually agree.
4. Loan Closing Documents. At the Garage Construction Loan Closing,CRC,Developer,and/or CLG,
as applicable, shall execute and deliver the following documents:
(a) the Garage Construction Loan Documents;
(b) the Tri-Party Agreement;
(c) copies of such resolutions, consents, authorizations, and other evidence as CRC,
Developer, or CLG, as applicable, or the Garage Construction Lender reasonably may
request to establish that: (i) the persons executing and delivering this Contract and the
foregoing documents are empowered and authorized by all necessary action of CRC,
Developer,or CLG,as applicable;and(ii)the: (A)execution and delivery of this Contract and
the foregoing documents; and (B) performance by CRC, Developer,or CLG, as applicable,
hereunder and under such documents; have been authorized by CRC, Developer, or CLG,
as applicable; and
(d) such other customary documents and instruments as CRC, Developer, or CLG, as
applicable, or the Garage Construction Lender reasonably may request in connection with
the Garage Construction Loan Closing.
5. Conditions of Performance.
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(a) CLG Conditions. The obligations of CLG with respect to proceeding with the Garage
Construction Loan Closing shall be subject to the satisfaction, or waiver in writing, of the
following:
(i) CLG, exercising commercially reasonable discretion, shall have
approved the Garage Construction Loan Documents and the terms and
conditions of the Garage Construction Loan;
(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 6(a)
shall be true and accurate in all material respects.
(b) CRC Conditions.The obligations of CRC with respect to proceeding with the Garage
Construction Loan Closing and the payment of the Purchase Price shall be subject to
satisfaction, or waiver in writing, of the following:
(i) CRC, exercising commercially reasonable discretion, shall have
approved the Garage Construction Loan Documents and the terms and
conditions of the Garage Construction Loan;
(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 6(b)
shall be true and accurate in all material respects.
6. 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 the
Project Agreement, this Contract, the Tri-Party Agreement, or the 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 the Project Agreement,this Contract, the Tri-Party
Agreement, and the Collateral Assignment; and (B) perform its obligations hereunder and
under the Project Agreement, the Tri-Party Agreement, and the Collateral Assignment;
(iv) CRC has been authorized by proper action to: (A) execute and deliver the Project
Agreement, this Contract, the Tri-Party Agreement, and the Collateral Assignment; and
(B) perform its obligations hereunder and under the Project Agreement, the Tri-Party
Agreement,and the Collateral Assignment;and(v)the Project Agreement,this Contract,the
Tri-Party Agreement, and the Collateral Assignment are the legal, valid, and binding
obligations of CRC.
(b) Developer/CLG. Developer and/or CLG, as applicable, represents and warrants to
CRC that: (I) neither Developer nor CLG shall enter into any contracts or undertakings that
would limit, conflict with, or constitute a breach of the Project Agreement, this Contract, the
Tri-Party Agreement, the Collateral Assignment, or the other Loan Documents; (ii)each of
Developer and CLG is a limited liability company organized and existing under the laws of the
State of Indiana; (iii)each of Developer and CLG has the power to: (A)enter into the Project
Agreement,this Contract,the Tri-Party Agreement,the Collateral Assignment,and the other
Loan Documents, in each case as applicable;and (B)perform its obligations hereunder and
under the Project Agreement, the Tri-Party Agreement, the Collateral Assignment, and the
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other Loan Documents, in each case as applicable; (iv) each of Developer and CLG has
been authorized by proper action to: (A) execute and deliver the Project Agreement, this
Contract, the Tri-Party Agreement, the Collateral Assignment, and the other Loan
Documents,in each case as applicable;and(B)perform its obligations hereunder and under
the Project Agreement, the Tri-Party Agreement, the Collateral Assignment, and the other
Loan Documents, in each case as applicable; (v)the Project Agreement, this Contract, the
Tri-Party Agreement,the Collateral Assignment,and the other Loan Documents are the legal,
valid,and binding obligations of Developer and/or CLG,as applicable;(vi)except in the case
of a Transfer as permitted by Section 19, Developer: (A) is, and shall continue to be, the
lawful owner of: (1)the Garage; and (2) upon acquisition thereof,the materials to construct
the Garage; and (B) has, and shall continue to have, good and marketable title to: (1) the
Garage; and (2) upon acquisition thereof, the materials to construct the Garage; free and
clear of all liens, claims, security interests, encumbrances, and restrictions, except for this
Contract; and (vii) no financing statement covering all or any portion of the Garage, or the
materials to construct the Garage,is on file in any public office except in connection with the •
Construction Loan or the Huntington Loan.
7. Construction.
(a) Garage. Developer shall: (i) acquire the materials to construct, and construct, the
Garage in accordance with the terms and conditions of the Project Agreement and this
Contract;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.
(b) Garage Construction Contract. Upon execution of the Garage Construction Contract
(as contemplated by the Project Agreement), Developer shall: (i) comply with all of its
obligations under the Garage Construction Contract; (ii) keep the Garage Construction
Contract in full force and effect,without any default by Developer thereunder; (iii)not amend
or modify the Garage Construction Contract,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 Garage Construction Contract;and(iv)enforce the
terms and.conditions of the Garage Construction Contract against the Contractor(including
that, to the extent that there are Surviving Contractor Obligations, Developer shall enforce
the terms and conditions of the Garage Construction Contract with respect thereto).
(c) Change Orders. If CRC or Developer desires to make any changes to the Final
Plans,as applicable to the Garage,then the party desiring the change shall submit a Change
Order Request to the other party for review and approval. Within ten days after the reviewing
party receives the Change Order Request, such party shall deliver to the requesting party
written notice that it approves or rejects the Change Order Request; provided that:
(i)approval shall not be withheld unreasonably;and(ii)if the reviewing party rejects all or any
part of the Change Order Request,then such notice shall:(A)specify the part or parts being
rejected;and(B)include the specific basis for such rejection. If:(i)the reviewing party's only
reasonable objection to a Change Order Request is that the implementation thereof would
increase the Garage Construction Costs; and (ii) the requesting party agrees to pay the
amount of such increase;then the reviewing party shall approve the Change Order Request.
If a Change Order Request is approved, then a Change Order shall be executed.
8. Acquisition of Garage-Payment.
(a) Payment Period 1.
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(I) During Payment Period 1,CRC shall pay the Initial Payment and 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 the Initial Payment or 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: (1) in arrears
(accordingly, there shall be no Payment Period 1 Installment due and
payable until the Payment Due Date for the first day of the first full calendar
month of the second quarter of Payment Period 1, which date, stated
alternatively, is the first day of the fourth full calendar month of Payment
Period 1); and (2) on or before the Payment Due Date; and (C) subject to
adjustment pursuant to Subsection 8(c).
(iii) Because the amount of the Payment Period 1 Installments may
fluctuate due to: (A) changes in the Loan Rate; and/or (B) increases or
decreases in the Loan Balance; on the Garage Construction Loan Closing
Date, and within the period between the first and fifth business days:
(A)first, of the third full calendar month following the Garage Construction
Loan Closing Date; and (8) thereafter, of the final calendar month of each
quarter during Payment Period 1; Developer shall deliver to CRC a
Projection Notice for the next quarter. The amount set forth in the
Projection Notice shall be: (A)based on Developer's reasonable projection
of the interest payment on the Loan(using the same method of calculation
as the Lender) that will become due and payable for the next quarter; and
(B) the amount of the Payment Period 1 Installment due and payable by
CRC on or before the Payment Due Date with respect to the next quarter.
(b) Payment Period 2.
(i) During Payment Period 2, CRC shall pay the Payment
Period 2 Installments to Developer. Upon receipt thereof, Developer timely
shall make the next payment due to the Lender pursuant to the Loan
Documents; provided that, if a Payment Period 2 Installment is delayed,
then Developer shall make the payment due to the Lender promptly upon
receipt of payment by CRC.
(ii) The Payment Period 2 Installments shall be: (A) in the amount
determined pursuant to Subsection 8(b)(iii); (B) paid: (1) in arrears
(accordingly, there shall be no Payment Period 2 Installment due and
payable until the Payment Due Date for the first day of the first full calendar
Month of the second quarter of Payment Period 2, which date, stated
alternatively, is the first day of the fourth full calendar month of Payment
Period 2); and (2) on or before the 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 due to: (A) changes in the Loan Rate; and/or
(B) decreases in the Loan Balance; on the first day of Payment Period 2,
and thereafter within the period between the first and fifth business days:
(A) first, of the third full calendar month of Payment Period 2; and
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(8)thereafter, of the final calendar month of each quarter during Payment
Period 2; Developer shall deliver to CRC a Projection Notice for the next
quarter. 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 Loan (using the same method of calculation as the Lender)that will
become due and payable for the next quarter; and (B) the amount of the
Payment Period 2 Installment due and payable by CRC on or before the
Payment Due Date with respect to the next quarter. Notwithstanding
anything to the contrary set forth herein, if the Fixed Rate Option has been
exercised,then to the extent that,for a given quarter,the payment due from
CRC is the same as that due for the previous quarter, Developer shall not
be obligated to deliver the Projection Notice; provided that, it shall not be a
default by CRC hereunder if,absent a Projection Notice from Developer,the
amount of the Payment Period 2 Installment timely paid by CRC is the same
amount as the Payment Period 2 Installment for the previous quarter,
regardless of whether such amount is the actual amount due from CRC.
(c) Adjustment. If the projected amount set forth in a Projection Notice(or paid by CRC
in the absence of a Projection Notice) was more or less than the actual amount to which
Developer was entitled for the quarter 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 Payment Due Date with respect to the next quarter, 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) Closing Payment. Subject to the exercise by CRC of the Full Prepayment Option,
on the date on which Payment Period 2 ends, CRC shall pay the Closing Payment to
Developer. Promptly thereafter, Developer shall pay the Closing Payment to the Lender,
thereby paying off the Loan and the Purchase Price in full.
(e) Partial Prepayment. CRC may make a Partial Prepayment at any time; provided
that, if CRC makes a Partial Prepayment,then: (i)Developer promptly shall pay the amount
of such Partial Prepayment to the Lender for application against the Loan Balance(thereby
reducing the outstanding balance of the Purchase Price);and(ii) CRC shall be obligated to
pay any prepayment premium or penalty required by the Loan Documents in connection with
the application of the amount of the Partial Prepayment against the Loan Balance.
9. Acquisition of Garage-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, 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. 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
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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.
Contemporaneously with the receipt by Developer of the Full Prepayment Price, Developer
shall pay the Full Prepayment Price to the Lender, thereby paying off the Loan and the
Purchase Price in full.
10. Garage Conveyance.
(a) Put Right. Subject to the terms and conditions of this Contract, Developer hereby
is granted the Put Right. Developer may exercise the Put Right by delivery of written notice
to CRC at any time after the Put Trigger Date. If Developer exercises the Put Right, then:
(i)the Garage Closing Date shall be the date:(A)specified by Developer in its written notice
exercising the Put Right, so long as such date reasonably is approved by CRC; or
(B) otherwise mutually agreed upon by CRC and Developer; and (B) the transfer of fee
simple title of the Garage to CRC on the Garage Closing Date shall:(1)not result in a merger
of this Contract into the deed by which CRC receives title to the Garage,so that this Contract,
and all of the rights of the parties hereunder,shall remain in full force and effect;and(2)have
no effect on the obligation of CRC to make Installment Payments and the Closing Payment
pursuant to the terms and conditions of this Contract (stated alternatively, it shall not
accelerate payment of the Purchase Price or decrease the duration of Payment Period 2).
(b) Closing. On the Garage Closing Date, Developer shall transfer to CRC fee simple
title to the Garage. In connection with such transfer: (i) CRC shall pay the Full Prepayment
Price,in the case of the Garage Closing Date occurring on the Full Prepayment Closing Date;
(ii) CRC shall pay the Closing Payment, if the Garage Closing Date occurs on the date on
which Payment Period 2 expires; (iii) Developer shall deliver to CRC closing documents
substantially the same in form and substance as those received by Developer in
connection with its acquisition of the Project Site(including,without limitation, that the deed
shall be subject only to: (A)the exceptions to which Developer's title was subject when it took
title; (B) current real estate taxes and assessments not delinquent; and/or(C) such other
exceptions as reasonably are acceptable to CRC, or to which CRC consents, which CRC
agrees shall include:(1)the Access and Use Declaration and the Stacking Declaration(each
as defined in the Project Agreement),and any other agreements contemplated by the Project
Agreement;and(2)any rights retained by or for Developer or its nominee in accordance with
Subsection 2(c)); (iv) Developer and CRC shall execute such easements as the parties
reasonably determine to be necessary or appropriate; and (iv) Developer shall deliver
possession of the Garage to CRC, free and clear of the claims of any other party, except:
(A) those set forth in the deed; and (B)the easements contemplated in clause (iv).
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 Tri-Party Agreement or the Collateral
Assignment beyond applicable cure periods;or(B)taken any other action;the result of which
is that CLG no longer has the right to exercise the Fixed Rate Option; and(iii)the Fixed Rate
Option remains available under the Loan Documents; CLG, upon receipt of written request
and payment by CRC of any Fixed Rate Fees that are required to be paid at the time of the
exercise of the Fixed Rate Option (as opposed to any Fixed Rate Fees that are included in
the Loan Balance and,accordingly,paid as part of the Installment Payments),and otherwise
in accordance with the Loan Documents, shall exercise the Fixed Rate Option.
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(b) Extension. So long as:(i)there is no continuing Event of Default by CRC hereunder;
(ii) CRC has not: (A) defaulted under the Sri-Party Agreement or the Collateral Assignment
beyond applicable cure periods;or(B)taken any other action;the result of which is that CLG
no longer has the right to exercise the Extension Option; and (iii) the Extension Option
remains available under the Loan Documents; CLG, upon receipt of written request and
payment by CRC of any fees in connection with the exercise of the Extension Option that are
required to be paid at the time of such exercise (as opposed to any such fees that are
included in the Loan Balance and,accordingly,paid as part ofthe Installment Payments),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, CRC and CLG (and, upon request by CRC, Developer),jointly and working in
cooperation, shall exercise commercially reasonable, good faith efforts to obtain the
Replacement Loan. If the Replacement Loan is obtained, then, at the closing with respect
thereto:(i)CLG and the Replacement Lender(and,to the extent applicable,Developer)shall
execute the Replacement Loan Documents; and (ii) CRC, CLG, Developer, and the
Replacement Lender shall execute the Replacement Tri-Party Agreement.
12. Affirmative Obligations. Developer and CLG acknowledge and agree that,at all times,Developer
and/or CLG, as applicable, shall comply with the covenants and agreements set forth in this Section.
(a) Each of Developer and CLG shall comply with all Laws in: (i) the conduct of its
business and other operations; and (ii)the performance of its obligations under the Project
Agreement,the Garage Construction Contract,this Contract, and the Loan Documents,as
applicable.
(b) Each of Developer and CLG shall keep in full force and effect,without any violations
by Developer or CLG, respectively, any and all filings or registrations with any Agency
necessary in connection with:(i)the performance by Developer and CLG(as applicable)of
its obligations under the Loan Documents; (ii) the Warranties; (iii) the acquisition of the
materials to construct, and/or the construction of, the Garage in accordance with this
Contract,the Project Agreement, and the Garage Construction Contract; or(iv)the sale of
the Garage 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 Warranties and the materials to construct, and/or the
construction of,the Garage in accordance with this Contract,the Project Agreement,and the
Garage Construction Contract;and/or(iii)the sale of the Garage to CRC in accordance with
this Contract;then Developer shall:(i)notify CRC promptly 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: (i)keep the Garage,and the materials to construct the
Garage, free from any and all liens, claims, security interests, encumbrances, and
restrictions, except for: (A)the lien of current real estate taxes not delinquent; and (B) any
of the foregoing due to: (1)this Contract; (2)the Loan Documents; (3)compliance with the
Project Agreement; and (4) the lien of the mortgage securing the Huntington Loan; and
(ii) defend the Garage, and the materials to construct the Garage, against the claims and
demands of others.
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(e) Each of Developer and CLG 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 and CLG 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 or specifically permitted by the terms and conditions of
this Contract(for example, but without limitation, in connection with the exercise of the Put
Right or pursuant to Section 19): (i) there shall be no Transfer by Developer; and
(ii)Developer shall not cause or permit any Transfer. The execution by CRC of the 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
Garage, or the materials to construct the Garage, in any public office, except financing
statements in favor of the Lender or the Building Lender; or(ii) cause or permit any such
financing statement to be filed.
(c) Developer shall not:(i)change its name prior to the Put Trigger Date;(ii)merge into,
or consolidate with, any other entity, or otherwise reorganize; (iii) permit, prior to the Put
Trigger Date, any change in th e members of Developer or the percentage of ownership in
Developer, if the effect of such change is that Developer no longer is controlled by Ersal
Ozdemir; or (iv) fail to promptly notify CRC in writing of any change in the members of
Developer or the percentage of ownership in Developer.
(d) Developer shall not: (i) amend, modify, or restate the articles of organization or
operating agreement of Developer prior to the Put Trigger Date;(ii)cause or permit any such
amendment, modification, or restatement prior to the Put Trigger Date; 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, prior to the Put Trigger Date, 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. None of Developer, CLG, or CRC shall suffer or cause the filing of any
mechanic's, supplier's, or similar lien against the Garage, or any part thereof. If any mechanic's,supplier's,
or similar lien is filed against the Garage, or any part thereof, for work claimed to have been done for, or
materials claimed to have been furnished to,any of Developer,CLG,or CRC,then Developer,CLG,or CRC,
respectively,shall cause such mechanic's,supplier's,or similar lien to be discharged of record within 45 days
after notice of the filing by bonding, providing other adequate security therefor, 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
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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 Garage.
15. Preservation. If Developer or CLG, as applicable, fails to: (a) make any payment under the Loan
Documents,the Tri-Party Agreement,or the Collateral Assignment when due;or(b)timely observe or perform
any obligation to be observed or performed by it pursuant to the Loan Documents, the Tri-Party Agreement,
or the Collateral Assignment; 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 or CLG; may make any such payment or observe or
perform any such obligation as necessary or appropriate to protect or defend: (i)the Project Agreement,the
Garage Construction Contract,and/or the rights of Developer thereunder;and/or(ii)the Garage,the materials
to construct the Garage, 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,
CLG, or CRC, as applicable:
(a) CRC's failure to pay the Initial Payment or 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, except and to the extent that
such failure causes an "Event of Default" by Developer and/or CLG under the Loan
Documents.
(b) The failure of Developer or CLG to comply with the terms and conditions of the Loan
Documents beyond any applicable cure periods; provided that, if such failure is directly due
to CRC's failure to pay the Initial Payment, any Installment Payment,or the Closing Payment
when due, then such failure shall not be an Event of Default unless and until the failure by
Developer or CLG continues for a period of five business days after CRC pays to Developer
the delinquent Initial Payment, Installment Payment, or Closing Payment, together with any
late fees for which the Loan Documents provide. If the failure of Developer or CLG to comply
with the terms and conditions of the Loan Documents is directly due to CRC's failure to
satisfy its obligations under the Tri-Party Agreement or the Replacement Tri-Party
Agreement, then such failure by Developer or CLG shall not be an Event of Default.
(C) Developer's failure to comply with any material terms and conditions of the Project
Agreement or the Garage Construction Contract,and the continuance of such failure beyond
any applicable cure period specified in the Project Agreement or the Garage Construction
Contract,respectively; provided that, if no cure period is specified,then such failure shall not
constitute an Event of Default unless such failure continues for 30 days.
(d) the failure of Developer, CLG, or CRC to observe or perform any material term or
condition of this Contract to be observed or performed by Developer, CLG, or CRC,
respectively: (i)with respect to the obligation to pay money(other than payment by CRC of
the Initial Payment or 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 or CLG,except as expressly permitted in this Contract
and/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 Loan Agreement or the corresponding
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provisions in the Tri-Party 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,Developer,or CLG,except in accordance
with Section 19.
(h) CRC, Developer, or CLG: (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, Developer,
or CLG, and such proceeding is not discharged or dismissed within 60 days.
(j) Any portion of the Garage,or any substantial portion of the other property or assets
of Developer, CLG, or CRC, 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 Developer,CLG,or CRC 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 Garage,whether such security interest or lien is
superior,equal, or junior to the security interest or lien held therein by the Lender,except in
the case of a mechanic's lien foreclosure suit in which a bond has been properly obtained to
replace the lien in accordance with the Laws.
(I) The making or filing of any levy or execution on, or any seizure, attachment, or
garnishment of, any portion of the Garage 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
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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:(A)the Full
Prepayment Closing Date shall occur on a date designated by Developer;
and(B)if CRC fails to pay the Full Prepayment Price on the date designated
by Developer,then such failure shall constitute an Event of Default,with the
result being that Developer shall have the right to exercise any rights and
remedies available to it at law or in equity(including,without limitation,those
set forth in this Section).
(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 the Initial
Payment or 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 (including, without limitation, reasonable attorneys' fees) 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 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 Garage.
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 or CLG at 47 South Pennsylvania Street, 10th Floor,Indianapolis,
Indiana 46204, Facsimile: 317-635-1100, Attn: Ersal Ozdemir and Joseph Pieters, Esq., with a copy to:
Donald E. Williams, Esq., Barnes&Thornburg LLP, 11 South Meridian Street, Indianapolis, Indiana 46204,
Facsimile:317-231-7433; and to CRC at City of Carmel, Indiana, One Civic Square,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,
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 Tri-Party Agreement or the Replacement Tri-Party
Agreement, as applicable. Notwithstanding any assignment as permitted by the 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 or CLG 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 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
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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. Until the Put Trigger Date,neither Developer nor CLG
shall: (a)assign this Contract or any interest herein; or(b)delegate any duty or obligation hereunder; except
as permitted by the Tri-Party Agreement or the Replacement Tri-Party Agreement, as applicable; provided
that:(a)in connection with any assignment,Developer or CLG,as applicable,shall be obligated to obtain from
the assignee a fully executed assumption of the obligations of Developer or CLG, respectively, under this
Contract;and(b)notwithstanding any assignment:(i)Developer or CLG,as applicable,shall remain fully liable
to perform all of its obligations under this Contract; and (ii)a consent by CRC to any assignment shall not
release Developer or CLG, as applicable, from such performance. Notwithstanding the prohibition against
Transfers without the consent of CRC,there may be a Transfer without the consent of CRC at any time after
the Put Trigger Date and until the Garage is conveyed to CRC, so long as such Transfer: (a) occurs in
connection with the sale of the Garage to a party that assumes the obligations of Developer hereunder; or
(b) is required as a condition of closing a permanent financing.
20. Mutual Indemnification. Each of CRC, Developer,and CLG shall indemnify and hold harmless the
other parties from and against any and all Claims arising from, or connected with: (a)the negligence or wilful
misconduct of: (i) CRC, Developer, or CLG, respectively; or(ii) any party acting by, under, through, or on
behalf of CRC, Developer, or CLG, respectively; and/or (b) the: (i) breach by CRC, Developer, or CLG,
respectively, of any term or condition of this Contract,the Tri-Party Agreement, or the Replacement Tri-Patty
Agreement;and(ii)the resulting exercise by the applicable non-breaching party of its rights and remedies with
respect to such default. The Claims against which CRC shall indemnify and hold harmless CLG shall include
those arising from; or connected with, the exercise by the Lender of its rights and remedies in the case of an
"Event of Default"by CLG under the Loan Documents,to the extent that such "Event of Default"results from
a breach by CRC of any term or condition of this Contract,the Tri-Party Agreement,the Replacement Tri-Party
Agreement, or the Project Agreement.
21. Miscellaneous. -
(a) Prior Agreements. Except in the case of the Project Agreement and the Tri-Party
Agreement, all prior representations and agreements by or among Developer, CLG, 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 Developer, CLG, and CRC; and (ii) as permitted by
the Tri-Party Agreement or the Replacement Tri-Party Agreement, as applicable. This
Contract may be executed in separate counterparts, each of which shall be an original, but
all of which together shall constitute a single instrument.
(b) Construction. This Contract shall be construed in accordance with the laws of the
State of Indiana . The captions of this Contract are for convenience only and do not in any
way limit or alter the terms and conditions of this Contract. The invalidity or unenforceability
of any term or condition of this Contract shall not affect the other terms and conditions, and
this Contract shall be construed in all respects as if such invalid or unenforceable term or
condition had not been contained herein. All exhibits referenced herein are attached hereto
and incorporated herein by reference.
(c) Successors. Subject to the terms and conditions of Section 19, this Contract, and
all of the terms and conditions hereof, shall: (i) inure to the benefit of; and (ii) be binding
upon;the respective heirs,executors,administrators,successors,and assigns of Developer,
CLG, and CRC. All indemnities set forth in this Contract shall survive the acquisition by CRC
of the Garage.
(d) Authority. Each person executing this Contract represents and warrants that: (i)he
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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. Each of Developer and CLG waives, to the extent
permitted under applicable law: (i)the right to a trial by jury; and (ii) any right Developer or
CLG, respectively, 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(other than the obligation to pay
money), 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,CLG,and CRC have executed this Contract as of the
date set forth above.
CARMEL LOFTS L
By: Keystone,• e p, LLC., Sol lember
Bye , �
E Ozdemir, Sole Member
CARMEL LOFTS RAGE, LLC
By: Keystone Grop, LLC Sole ember
Efsaf Ozdemir, Sole Member
c
THE CITY OF CARMEL REDEVELOPMENT
COMMISS •N
' (/Zk
By.
Rorid E. Carter, President
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•
Index to Exhibits
Exhibit A Depiction of Project Site
Exhibit B Form of Memorandum
Exhibit C Form of Collateral Assignment
Exhibit D Terms and conditions for Fixed Rate Option
Exhibit E Terms and conditions for Extension Option
Exhibit F Form of Tri-Party Agreement
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EXIT A
Land situated in the County of Hamilton, State of Indiana, is described as follows:
•
•
TRACT 1:
Lot Five (5) in Simeon Hawkins'Addition to Bethlehem,now the City of Carmel, Indiana,
except a strip fourteen and three-quarters (14 3/4) feet off the East side thereof; all in Hamilton
County, Indiana.
Also, a strip of land being 4 feet in width by parallel lines lying North of and adjacent to Lot 45
in Simeon Hawkins'Addition to Bethlehem (now Cannel), an addition in Hamilton County,
Indiana, as per plat thereof,recorded in Deed Record 30,page 441, in the Office of the Recorder
of Hamilton County,Indiana, and being part of the first alley North of Main Street,more
particularly described as follows:
Beginning at the Northwest Corner of said Lot#5, said point being on the South line of the first
alley North of Main Street;thence East on and along said South line to a point 14.75 feet West of
the Northeast Corner of said Lot#5; thence North 4 feet;thence West parallel with said South
line to the East line of the first alley West of First Avenue,N.W.;thence South on and along said
East tine to the Place of Beginning.
ALSO, Lot Number Eight(8) in Simeon Hawkins' Addition to the Town of Cannel,Hamilton
County, Indiana, as per plat thereof recorded in Deed Record 30,page 441, in the Office of the
Recorder of Hamilton County, Indiana.
•
Except: Beginning at the Southeast Corner of said Lot#8;thence North on and along the East
line thereof 66.0 feet to the North line of said Lot#8;thence West on and along said North line
123.25 feet;thence South 66.0 feet to a point on the South line of said lot, 123.10 feet West of
the Place of Beginning; thence east, on and along said South line 123.10 feet to the Place of
Beginning.
And Except: Part of Lot 48 in Simeon Hawkins' Addition to Bethlehem(now Cannel), an
addition in Hamilton County, Indiana, as per plat thereof,recorded in Deed Record 30,page 441,
in the Office of the Recorder of Hamilton County, Indiana,more particularly described as
follows: Beginning at the Southwest Corner of said Lot#8;thence East on and along the South
line of said lot a distance of 41.90 feet; thence North 4 feet; thence West parallel with said South
line to the West line of said Lot#8; thence South on and along said West line 4 feet to the Place
of Beginning.
ALSO,the West Half of Lot Nine (9) in Simeon Hawkins'Addition to the Town of Bethlehem,
now City of Carmel, as per plat thereof recorded in Deed Record 30,page 441, in the Office of
the Recorder of Hamilton County, Indiana.
ALSO,Lot Fourteen(14) and one-fourth (1/4) of the East Half of Lot Nine (9) in the Northeast
Corner thereof in Simeon Hawkins'Addition to the Town of Cannel, Hamilton County, Indiana.
Page 1 of 2
ALSO, Lots 6 and 7 and the East Half of Lot 9, except 114 of the East Half in the Northeast
Corner in Hawkins' Addition to the Town of Bethlehem,now City of Cannel, as recorded in
Deed Record 30, page 441, in the Office of the Recorder of Hamilton County. Indiana.
TRACT 2:
Part of Lot 4 in Simeon Hawkins Addition to the Town of Bethlehem,now Carmel, Indiana,
described as follows:
Beginning at the Southeast corner of said Lot 4; thence North 8 rods; thence West 2 1/2 rods;
thence South 8 rods,thence East 2 1/2 rods to the place of beginning in Hamilton County,
Indiana.
ALSO, begin 2 1/2 rods West of the Southeast corner of Lot 4; run thence West 20 feet;North
132 feet; East 20 feet; South 132 feet to the place of beginning.
ALSO, part of Lots 4 and 5 in Simeon Hawkins Addition to the Town of Bethlehem,now
Cannel, Indiana, described as follows:
Beginning 61 1/4 feet West of the Southeast corner of Lot 4;run thence West 36 feet;thence
North 132 feet; thence East 36 feet; thence South 132 feet to the place of beginning in Hamilton
County, Indiana.
TRACT 3:
Beginning at the Southwest corner of Lot 8 in said Subdivision; thence East on the South line of
said Lot 8 a distance of 41.90 feet thence North parallel to the West line of said Lot 8 a distance
of 4.00 feet;thence West parallel to the South line of said Lot 8 a distance of 41.9 feet to the
West line of said Lot 8; thence South on said West line to the place of beginning.
TRACT 4:
Those vacated alleys located adjacent to and abutting the above-described real estate pursuant to
Ordinance D-1919-08 recorded as Instrument No. 2009001989.
INDS91 TYOUNO/CRC 1110766v1
Page 2 of 2
Land situated in the County of Hamilton, State of Indiana, is described as follows:
TRACT 1:
Part of Lot#8 in Simeon Hawkins Addition to Bethlehem(now Carmel), an addition in Hamilton
County Indiana,as per plat thereof recorded in Deed Record 30,page 441, in the office of the
Recorder of Hamilton County, Indiana,more particularly described as follows:
Beginning at the Southeast corner of said Lot 48; thence North(North 00 degrees 00 minutes 00
seconds West measured assumed bearing) on and along the East line`hereof 66.0 feet to the •
North line of said Lot#8;thence West(South 89 degrees 08 minutes 53 seconds West,
measured)on and along said North line 123.25 feet;thence South(South 00 degrees 07 minutes
49 seconds East,measured) 66.0 feet to a point on South line of said Lot 123.10 feet West(South
89 degrees 08 minutes 53 seconds West,measured)of the place of beginning; thence East(North
89 degrees 08 minutes 53 seconds East, measured) on and along South line 123.10 feet to the
place of beginning, EXCEPTING therefrom the East 15 feet conveyed to the City of Cannel by
Grant of Right of Way recorded in Instrument No. 9909935513.
TRACT 2:
Lot numbered 13 in Simeon Hawkins, an addition to the City of Cannel, in Hamilton County,
Indiana, as per plat thereof recorded in Deed Record 30,page 411 in the office of the Recorder of
Hamilton County, Indiana, EXCEPTING therefrom the East 15 feet conveyed to the City of
Cannel by Grant of Right of Way recorded in Instrument No. 9909935513.
TRACT 3:
Those vacated alleys located adjacent to and abutting the above-described real estate pursuant to
Ordinance D-1919-08 recorded as Instnunent No. 2009001989.
!NDS01 TYOUNG/VFW III0767v1
C.%4 i.'i\t)L� �
MEMORANDUM
OF
GARAGE INSTALLMENT PURCHASE CONTRACT
This Memorandum of Garage Installment Purchase Contract(the"Memorandum"),executed
by and between The City of Carmel Redevelopment Commission ("CRC"), Carmel Lofts LLC (the
"Developer"), and Carmel Lofts Garage, LLC ("CLG"), this Ir day of March, 2009, Witnesses:
Recitals
WHEREAS, CRC, Developer, and CLG have executed that certain Garage Installment
Purchase Contract of even date herewith (the"Contract"); and
WHEREAS. CRC, Developer, and CLG seek to execute and record a memorandum of the
Contract;
Memorandum
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, CRC, Developer, and CLG represent and acknowledge that: (a) pursuant
to, and subject to the terms and conditions of, the Contract, Developer is obligated to: (i)comply with its all
of its obligations under the Project Agreement; and (ii)convey to CRC fee simple title to the Garage for the
Purchase Price or the Full Prepayment Price,as applicable;(b)the Garage is to be constructed on that certain
real estate described on Exhibit A,attached hereto and incorporated herein by reference;and(c)the foregoing
capitalized terms shall have the meanings ascribed thereto in the Contract.
IN WITNESS WHEREOF, CRC, Developer, and CLG have executed this Memorandum as
of the date set forth above.
THE CITY OF CARMEL REDEVELOPMENT
COMMISSION
By:
Ronald E. Carter, President
CARMEL LOFTS LLC
By: Keystone Group, LLC., Sole Member
By:
Erse!Ozdemir, Sole Member
CARMEL LOFTS GARAGE, LLC
By: Keystone Group, LLC., Sole Member
By:
Ersal Ozdemir, Sole Member
ACKNOWLEDGMENTS
STATE OF INDIANA
)SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally
appeared Ronald E. Carter, the President of The City of Carmel Redevelopment Commission, who
acknowledged the execution of the foregoing Memorandum of Garage Installment Purchase Contract on
behalf of such entity.
•
WITNESS my hand and Notarial Seal this_day of , 2009.
•
By:
Notary Public
Printed Name:
I am a resident of County, Indiana.
My commission expires
STATE OF INDIANA
) SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared Ersal
Ozdemir, Sole Member of Keystone Group, LLC., Sole Member of Carmel Lofts LLC,who acknowledged the
execution of the foregoing Memorandum of Garage Installment Purchase Contract on behalf of such entity.
WITNESS my hand and Notarial Seal this_day of , 2009.
By:
Notary Public
Printed Name:
I am a resident of County, Indiana.
My commission expires
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STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared Ersal
Ozdemir, Sole Member of Keystone Group, LLC., Sole Member of Carmel Lofts Garage, LLC, who
acknowledged the execution of the foregoing Memorandum of Garage Installment Purchase Contract on
behalf of such entity.
WITNESS my hand and Notarial Seal this day of , 2009.
By:
• Notary Public•
Printed Name:
I am a resident of County, Indiana.
My commission expires
•
Return following recording to CRC at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032,
Attn: Les Olds.
This instrument was prepared by Jennifer R.Shoup,Attorney-At-Law,Wallack Somers&Haas,One Indiana
Square, Suite 1500, Indianapolis, Indiana 46204. I affirm, under the penalties for perjury, that I have taken
reasonable care to redact each Social Security number in this document, unless required by law.
Jennifer R. Shoup, Attorney-At-Law.
•
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itt U
.rL:k{,J, 0*-
COLLATERAL ASSIGNMENT,
LOCK BOX,AND
SECURITY AGREEMENT
Garage
This Collateral Assignment,Lock Box,and Security Agreement(Garage)(the"Agreement"),
is executed as of the day of , 2009, by and among Carmel Lofts LLC, having its
principal office at 47 South Pennsylvania Street, 10' Floor, Indianapolis, Indiana 46204 (the "Developer"),
Carmel Lofts Garage,LLC,having its principal office at 47 South Pennsylvania Street, 10"Floor,Indianapolis,
Indiana 46204 ("CLG"), Regions Bank, having its principal office at One Indiana Square, Suite 227,
Indianapolis, Indiana 46204 (the"Assignee"), and The City of Carmel Redevelopment Commission, having
its principal office at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032 ("CRC").
1. Defined Terms.
Account Interest shall mean interest earned on funds on deposit in the Lock Box Account.
Aggregate Garage Construction Costs shall have the meaning set forth in the Loan Agreement.
Borrower Loan Account shall mean the"Borrower Loan Account"defined in, and established pursuant to,
the Loan Agreement.
Borrower Loan Account Interest shall mean interest that: (a) has accrued on the funds on deposit in the
Borrower Loan Account; and (b) remains in the Borrower Loan Account.
Borrower Loan Deposits shall mean all funds on deposit in the Borrower Loan Account(including Borrower
Loan Account Interest).
CLG Collateral shall mean CLG's interest in the Borrower Loan Account, the Borrower Loan Deposits, and
the Proceeds.
Collateral shall mean the Developer Collateral and the CLG Collateral.
Contract Payments shall mean all payments to be made by CRC pursuant to the Installment Contract.
Debt Service shall mean regular(non-default)quarterly payments of interest and/or principal due and payable
by CLG to Assignee pursuant to the Note.
Developer Collateral shall mean Developer's interest in the Installment Contract, the Contract Payments,
the Lock Box Account, the Lock Box Deposits, and the Proceeds.
Event of Default shall have the meaning set forth in Section 10.
Future Advances shall mean advances that may be made by Assignee in accordance with the terms and
conditions of the Loan Documents and the Tri-Party Agreement for purposes other than financing payment
of the Aggregate Garage Construction Costs.
Garage shall mean the two-level underground parking garage to be constructed pursuant to the Project
Agreement and the Garage Construction Contract.
Garage Construction Contract shall have the meaning set forth in the Installment Contract.
Indebtedness shall have the meaning set forth in Section 3.
installment Contract shall mean that certain Garage Installment Purchase Contract executed by and
between Developer, CLG, and CRC and dated March 19, 2009, a copy of which is attached hereto as
Exhibit A,
Installment Payments shall have the meaning set forth in the Installment Contract.
Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules,
regulations, guidelines, orders, and/or decrees.
Lender Fees shall have the meaning set forth in the Loan Agreement.
Loan shall mean a loan from Assignee to CLG made in accordance with the terms and conditions of the Loan
Documents,which loan shall be in the original principal amount of$8,000,000.00.
Loan Agreement shall mean that certain Loan Agreement(Garage)of even date herewith executed by and
between CLG and Assignee.
Loan Documents shall mean the documents evidencing and/or securing the Loan,including,specifically,the
Note and the Loan Agreement.
Lock Box Account shall mean an interest-bearing, FDIC insured account with Assignee that: (a) is owned
jointly by Developer and Assignee;(b)provides that,notwithstanding the joint ownership,Assignee exclusively
has the right to withdraw funds therefrom; and (c) specifically is dedicated to: (i) the receipt of Installment
Payments and Lender Fees; and(ii)the payment of Debt Service and Lender Fees,
Lock Box Deposits shall mean all funds on deposit in the Lock Box Account (including accrued Account
Interest).
Losses shall mean any liability, loss, damage, cost, or expense (including, without limitation, reasonable
attorneys'fees).
Master Loan Program Agreement shall mean that certain Master Loan Program Agreement by and between
CRC and Assignee dated December 30,2008,as amended by that certain First Amendment to Master Loan
Program Agreement dated as of March 19, 2009.
Note shall mean that certain Promissory Note (Garage) of even date herewith in the principal amount of
$8,000,000.00, executed by CLG in favor of Assignee.
Permitted Transfer shall mean a"Transfer",as defined in the Tri-Party Agreement,that is permitted pursuant
to Section 11 of the Tri-Party Agreement.
Proceeds shall mean all additions,substitutions,replacements,extensions, renewals,and proceeds to or of
any of the Installment Contract, the Contract Payments, the Borrower Loan Account, the Borrower Loan
Deposits, the Lock Box Account, and/or the Lock Box Deposits.
Project Agreement shall mean that certain Project Agreement by and between CRC and Developer dated
as of January 5, 2009, as amended by that certain First Amendment to Project Agreement dated
March 19, 2009,
Projection Notice shall have the meaning set forth in the Installment Contract.
Tri-Party Agreement shall mean that certain Tri-Party Agreement(Garage)of even date herewith executed
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by and among Developer, CLG, Assignee, and CRC.
UCC shall mean the Indiana Uniform Commercial Code, as incorporated in the Indiana Code.
2. Assignment. For good and valuable consideration, the receipt and sufficiency of which are
acknowledged hereby:
(a) Developer hereby:(i)assigns the Developer Collateral to Assignee;
and (ii) grants to Assignee a security interest in the Developer Collateral;
and
(b) CLG hereby: (i) assigns the CLG Collateral to Assignee; and
(ii)grants to Assignee a security interest in the CLG Collateral.
3. indebtedness. This Agreement is given to secure the following,which constitute the"indebtedness":
(a) performance by Developer and CLG of the terms and conditions of this Agreement,
together with payment of all: (i) amounts payable to Assignee under this Agreement; and
(ii) reasonable costs, expenses, and attorneys' fees incurred by Assignee in: (A) the
enforcement of this Agreement; or(B) the collection of any amounts payable to Assignee
under this Agreement;whether the foregoing are direct,indirect,fixed,contingent,liquidated,
unliquidated,joint, several, or joint and several;
(b) All obligations, liabilities,and indebtedness of Developer and CLG to Assignee now
existing or hereafter arising under,or in connection with, the Loan Documents,together with
all: (i) Debt Service and Lender Fees; (ii)other amounts payable to Assignee under any of
the Loan Documents; and (iii) reasonable costs, expenses, and attorneys'fees incurred by
Assignee in:(A)the enforcement the Loan Documents; or(B)the collection of any amounts
payable to Assignee under the Loan Documents; whether such obligations, liabilities, and
indebtedness are direct, indirect,fixed,contingent,liquidated, unliquidated,joint,several, or
joint and several;
(c) All obligations and liabilities of Developer, CLG, and/or CRC now existing or
hereafter arising under, or in connection with, the Tri-Party Agreement,together with all: (i)
amounts payable under the Tri-Party Agreement; and (ii) reasonable costs, expenses, and
attorneys'fees incurred by Assignee in: (A)the enforcement of the Tri-Party Agreement; or
(B) the collection of any amounts payable to Assignee under the Tri-Party Agreement;
whether such obligations and liabilities are direct, indirect, fixed, contingent, liquidated,
unliquidated,joint, several, or joint and several; and
(d) Any and all modifications,amendments,supplements,restatements,replacements,
renewals, or extensions of one or more of this Agreement, the Loan Documents, or the
Tri-P arty Agreement.
Developer and CLG hereby acknowledge and agree that: (a)the Indebtedness includes,and this Agreement
is given to secure,the Future Advances; and (b)this Agreement shall secure all Future Advances.
4. Security Agreement. This Agreement is intended to be a security agreement pursuant to the UCC
with respect to the Collateral for the purpose of securing all Indebtedness, Developer and CLG agree to
execute and deliver financing and continuation statements (or acknowledgments and/or receipts thereof)
covering the Collateral from time to time and in such form as Assignee may require to perfect, and continue
the perfection of,Assignee's security interest with respect to the Collateral. Developer and/or CLG shall pay
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(and Lender Fees shall include)all costs and expenses of: (a)filing such statements, and any continuations
or releases thereof;and(b)any record searches for financing statements that Assignee may require. If there
is a default under this Agreement,then,with respect to all and every part of the Collateral,Assignee shall have
the rights and remedies: (a) of a secured party under the UCC; (b) available at law or in equity; and
(c) provided in this Agreement.
5. Lock Box Account.
(a) Creation. Contemporaneously with the execution of this Agreement, and in
connection with the execution of the Loan Documents,Assignee,using its standard account
documents, shall establish the Lock Box Account. Assignee shall maintain the existence of
the Lock Box Account until such time as the Loan has been paid in full. In connection with
the foregoing,the parties shall execute such documents as are necessary to:(i)establish the
Lock Box Account; (ii) maintain the existence of the Lock Box Account; and/or(iii) comply
with legal requirements applicable to the Lock Box Account and/or the Lock Box Deposits
(including, without limitation, any that may be required in connection with the withdrawal by
Assignee of Lock Box Deposits from the Lock Box Account to pay Debt Service and Lender
Fees).
(b) Payments. Notwithstanding anything to the contrary set forth in: (i)the installment
Contract, CRC shall pay all Installment Payments directly into the Lock Box Account; and
(ii) the Loan Documents, CRC, Developer, or CLG shall pay any other amounts due to
Assignee pursuant to the Loan Documents into the Lock Box Account.
(c) Withdrawals. On a quarterly basis, and at such time as amounts are owed to
Assignee pursuant to the Loan Documents, Assignee shall withdraw from the Lock Box
Account the amount to which it is entitled pursuant to the Loan Documents. If, at the time
that the Loan is paid in full,there remain any excess Lock Box Deposits,then Assignee shall
re-deposit the remaining Lock Box Deposits into the Loan Program Account(as defined in
the Master Loan Program Agreement) in accordance with the Loan Agreement.
6. Borrower Loan Account Interest. On a quarterly basis, Assignee shall: (a) withdraw from the
Borrower Loan Account all Borrower Loan Account Interest; and (b) apply the amount of the withdrawn
Borrower Loan Account Interest against the interest that has accrued on the Loan. Notwithstanding the
provisions in the Installment Contract with respect to the determination of the amount of the Installment
Payments, the amount set forth in a Projection Notice (and, accordingly, the amount of the Installment
Payment due and payable by CRC pursuant to the Installment Contract) shall be reduced by the amount of
the Borrower Loan Account Interest withdrawn by Assignee in the quarter with respect to which such
Projection Notice pertains.
7. Warranties.
(a) Developer. Developer represents and warrants to Assignee that:(i)Developer:(A)is
the sole owner of the Developer Collateral; and (B) has not sold, transferred, assigned, or
conveyed all or any part of the Developer Collateral; (ii)the Developer Collateral is free and
clear of all liens, pledges, security interests, and encumbrances of any nature, other than
those in favor of Assignee and/or identified in the Installment Contract;(iii)Developer has full
right and power to enter into and take the actions contemplated by this Agreement; (iv)all
necessary action has been taken to effect: (A) the assignment of the Developer Collateral
to Assignee; and(B)the grant to Assignee of a security interest in the Developer Collateral;
(v) this Agreement is effective to assign the Developer Collateral to Assignee, and grant to
Assignee a security interest in the Developer Collateral, subject to the terms and conditions
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of the Installment Contract,the Loan Documents,or the Tri-Party Agreement;and(vi)there
are no outstanding subscriptions, options, warrants, commitments, or agreements with
respect to the Developer Collateral,except for the Installment Contract and any agreements
to which Developer and Assignee are parties.
(b) CLG. CLG represents and warrants to Assignee that (i)CLG:(A)is the sole owner
of the CLG Collateral;and(B)has not sold,transferred,assigned,or conveyed all or any part
of the CLG Collateral; (ii) the CLG Collateral is free and clear of all liens, pledges, security
interests, and encumbrances of any nature, other than those in favor of Assignee and/or
identified in the Installment Contract; (iii)CLG has full right and power to enter into and take
the actions contemplated by this Agreement; (iv) all necessary action has been taken to
effect: (A)the assignment of the CLG Collateral to Assignee; and (B)the grant to Assignee
of a security interest in the CLG Collateral;(v)this Agreement is effective to assign the CLG
Collateral to Assignee, and grant to Assignee a security interest in the CLG Collateral,
subject to the terms and conditions of the Installment Contract, the Loan Documents,or the
Tri-Party Agreement; and (vi) there are no outstanding subscriptions, options, warrants,
commitments, or agreements with respect to the CLG Collateral, except for the installment
Contract and any agreements to which CLG and Assignee are parties.
8. Performance.
(a) Payment. Assignee shall be paid all of the Indebtedness when due: (i)without relief
from valuation and appraisement laws; and(ii)with reasonable attorneys'fees and costs of
collection. Each of Developer and CLG waives demand, presentment for payment, notice
of protest,and notice of nonpayment or dishonor of the Note and/or the other Indebtedness.
(b) Performance. Each of Developer and CLG shall perform as and when due all of its
obligations under the Loan Documents, the Tri-Party Agreement, and the Installment
Contract, and CRC shall perform as and when due all of its obligations under the Tri-Party
Agreement and the Installment Contract.
(c) Ownership.
(i) Developer shall: (A) remain the sole owner of the Developer
Collateral, except in the case of a Permitted Transfer; accordingly,
Developer shall not sell, transfer, convey, or assign all or any part of the
Developer Collateral or any interest therein, except in the case of a
Permitted Transfer; (B) keep the Developer Collateral free and clear of all
liens, pledges,security interests,and encumbrances of any nature; (C)not
issue,grant,or agree to any subscriptions,options,warrants,commitments,
or agreements with respect to the Developer Collateral, other than the
Project Agreement and the documents contemplated therein; and(D)take
all necessary action to keep this Agreement, the Installment Contract, the
Loan Documents, the Tri-Party Agreement, and the security interest in the
Developer Collateral in full force and effect.
(ii) CLG shall: (A) remain the sole owner of the CLG Collateral;
accordingly,CLG shall not sell, transfer, convey, or assign all or any part of
the CLG Collateral or any interest therein; (B)keep the CLG Collateral free
and clear of all liens, pledges, security interests,and encumbrances of any
nature;(C)not issue,grant,or agree to any subscriptions,options,warrants,
commitments, or agreements with respect to the CLG Collateral: and
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(D) take all necessary action to keep this Agreement, the Installment
Contract, the Loan Documents, the Tri-Party Agreement, and the security
interest in the CLG Collateral in full force and effect.
9. Preservation. If: (a)either Developer or CLG fails to: (i) make any payment to be made by it under
the Loan Documents, the Tri-Party Agreement, or the Installment Contract when due; or(ii)timely observe
or perform any material obligation to be observed or performed by it pursuant to the Loan Documents, the
Tri-Party Agreement,or the Installment Contract;or(b)CRC fails to:(i)make any payment under the Tri-Party
Agreement or the installment Contract when due; or(ii)timely observe or perform any material obligation to
be observed or performed by it pursuant to the Tri-Party Agreement or the Installment Contract; then:
(a)Assignee, at its option, but without: (i)any duty or obligation to do so; or(ii)any waiver or release of any
default by Developer,CLG,or CRC; may make any such payment or observe or perform any such obligation
as necessary or appropriate to protect or defend the Collateral, the security intended to be given by this
Agreement, the security interest of Assignee in the Collateral, and/or the priority of such security interest in
the Collateral;and(b)all reasonable costs and expenses incurred by Assignee in connection with making any
such payment or observing or performing any such obligation (including, without limitation, reasonable
attorneys'fees)shall constitute Lender Fees and be a part of the indebtedness secured by this Agreement.
10. Events of Default. It shall be an"Event of Default" under this Agreement if:
(a) Developer, CLG, or CRC fails to pay any amount due hereunder on the date due;
provided that: (i)in the case of the first two such failures in any 12 month period, it shall not
be an Event of Default unless the failure continues for a period of five days after the date on
which the payment is due; and (ii) it shall not be an Event of Default by CRC until such time
as Developer and CLG have received written notice of such failure by Assignee;
(b) Developer, CLG, or CRC fails to observe or perform any other obligation to be
observed or performed by it hereunder, and such failure continues for a period of 30 days
after Assignee delivers written notice of such failure to Developer,CLG,or CRC,respectively;
provided that, if such failure is of a nature that it reasonably cannot be cured within 30 days,
then such failure shall not constitute an Event of Default so long as Developer,CLG,or CRC:
(i)commences a cure of such failure within 15 days after receipt of the notice from Assignee;
and(ii)diligently pursues such cure to completion within 60 days after receipt of such notice;
(c) there is an"Event of Default" by Developer or CLG under the Installment Contract,
the Loan Documents, and/or the Tri-Party Agreement; provided that: (i)if the term"Event of
Default" is not used in any of the foregoing documents, then it shall be an Event of Default
under this Agreement if there is a default under such document that continues beyond any
applicable cure periods;and(ii)notwithstanding the foregoing,undeclared Events of Default
under the Installment Contract shall not be Events of Default hereunder;
(d) there is any representation or warranty made by Developer or CLG in this
Agreement,the Installment Contract,the Loan Documents, or the Tri-Party Agreement that
is false in any material respect at the time made or deemed to be made;
(e) there is a breach of Subsection 8(c)of this Agreement;
(f) there is a change in the control of Developer such that Developer no longer is
controlled by Erse!Ozdemir,except to the extent that such change occurs after a Permitted
Transfer;
(g) there is a change in any Law that causes the transactions contemplated by the
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Installment Contract, the Loan Documents, and/or the Tri-Party Agreement to be unlawful;
(h) except as expressly provided by the Loan Documents or the Tri-Party Agreement,
there is a liquidation, sale, conveyance, transfer, encumbrance, pledge, or assignment of
substantial assets of Developer out of the ordinary course of business;
(i) Developer or CLG:(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;
(j) there is 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 that is instituted against
Developer or CLG, and such proceeding is not discharged or dismissed within 45 days;
(k) any portion of the Collateral,or any substantial portion of the other property or assets
of Developer or CLG, is placed in the hands of any receiver, trustee, or other officer or
representative of any court, or Developer or.CLG consents, agrees, or acquiesces to the
appointment of any such receiver, trustee, or other officer or representative;
(I) Developer's interest in the Developer Collateral, or any material portion thereof,
becomes the subject matter of litigation that will result in substantial impairment or loss of the
security intended to be provided by this Agreement, as reasonably determined by Assignee;
(m) CLG's interest in the CLG Collateral, or any material portion thereof, becomes the
subject matter of litigation that will result in substantial impairment or loss of the security
intended to be provided by this Agreement, as reasonably determined by Assignee;
(n) any lienholder or creditor shall initiate an action to enforce or foreclose a lien,pledge,
security interest, or encumbrance on, in, or of all or any portion of the Collateral, whether
such lien,. pledge, security interest, or encumbrance is superior, equal, or junior to the
security interest of Assignee in the Collateral, except in the case of a mechanic's lien
foreclosure suit in which a bond has been properly obtained to replace the lien in accordance
with the Laws; and/or
(o) there is the making or filing of any levy or execution on,or any seizure,attachment,
or garnishment of, any portion of the Collateral.
11. Remedies. If there is an Event of Default, then, at any time thereafter:
(a) of the option of Assignee: (i)all principal of, and interest on, the Indebtedness; and
(ii)any amount owed to Assignee hereunder or under the Loan Documents or the Tri-Party
Agreement;immediately shall become due and payable,without any notice,presentment for
payment, demand, notice of demand and dishonor, or protest and notice of protest and
nonpayment, all of which expressly are waived by Developer and CLG;
(b) Assignee immediately shall have the right to: (i) enforce in whole or in part every
security interest granted by this Agreement; (ii) institute any proceeding that Assignee may
deem to be necessary or appropriate for the protection of its interests (including, without
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limitation, a proceeding for injunction or for specific performance with respect to the terms
and conditions of this Agreement,the Installment Contract,the Loan Documents,and/or the
Tri-Party Agreement); (iii)cure the Event of Default for the account of Developer or CLG,as
applicable; and (iv) exercise any other right or remedy granted: (A) under any of this
Agreement,the Installment Contract,the Loan Documents,and/or the Tri-Party Agreement;
or(B)at law or in equity; and
(c) all reasonable costs and expenses incurred by Assignee in exercising or enforcing
any of its rights or remedies hereunder shall constitute Indebtedness secured by this
Agreement.
Each and every right and remedy conferred upon,or reserved to,Assignee in this Agreement,the Installment
Contract, the Loan Documents, and/or the Tri-Party Agreement: (a) is cumulative, and is not intended to be
exclusive of any other right or remedy, although Assignee, at its option, may elect to exercise its rights and
remedies under:(i)this Agreement exclusive of its rights and remedies under any of the Installment Contract,
the Loan Documents, and/or the Tri-Party Agreement; or (ii) any of the Installment Contract, the Loan
Documents, and/or the Tri-Party Agreement exclusive of its rights and remedies under this Agreement;and
(b)shall be in addition to every other right and remedy given hereunder or now or hereafter existing at law or
in equity. No delay or omission by Assignee in the exercise of any right or remedy shall constitute, or be
construed to be, a waiver of, or an acquiescence in, any Event of Default, and every right and remedy given
to Assignee may be exercised from time to time, as often, and in such order as may be deemed to be
expedient by Assignee. No waiver by Assignee of any Event of Default shall constitute a waiver of,or consent
to, any subsequent Event of Default.
12. Receiver. Immediately upon the commencement of any proceeding by Assignee to obtain judgment
for any part of the Indebtedness,or to aid in the enforcement of this Agreement, the Installment Contract, the
Loan Documents, or the Tri-Party Agreement: (a) Developer and/or CLG, as applicable, shall: (i)waive the
issuance and service of process, and enter its voluntary appearance in such proceeding; (ii) agree and
consent to the appointment of a receiver or receivers of the Developer Collateral and the CLG Collateral,
respectively; and(iii)execute, at the request of Assignee,a written consent or agreed order to be filed for the
purpose of obtaining the appointment of a receiver; and(b)Assignee shall be entitled to the appointment of
a receiver of the Developer Collateral and/or the CLG Collateral, as applicable, without: (i)any such waiver,
entry, agreement, consent, or order, or any further notice; (ii) regard to the adequacy or inadequacy of any
security for the Indebtedness; and/or(iii)the requirement of any bond.
13. Waivers. To the extent lawful: (a) at no time shall Developer or CLG insist upon, plead, or in any
other manner whatsoever claim or take any benefit or advantage of: (i) any valuation or appraisement law;
or(ii) any exemption from execution or sale of the Developer Collateral or the CLG Collateral, respectively;
and(b)Developer and CLG expressly waive all right to have the Developer Collateral and the CLG Collateral,
respectively, marshaled upon any enforcement of this Agreement. Assignee shall be entitled to recover
judgment for any part of the Indebtedness before, after, or during the pendency of any proceeding for the
enforcement of this Agreement, and the right of Assignee to recover such judgment shall not be affected by:
(a)the enforcement of the security interest in the Collateral or any entry or sale hereunder;or(b)the exercise
of any other right or remedy for the enforcement of this Agreement. Upon any sale made under or by virtue
of this Agreement, Assignee may bid for and acquire all or any part of the Collateral, and, in lieu of paying
cash therefor, may make settlement of the purchase price by crediting the net sales price against the
Indebtedness.
14. Claim Defense. Developer and CLG promptly shall: (a) notify Assignee in writing of the
commencement,or threat of commencement,of any proceeding affecting the interest of Developer,CLG,or
Assignee in all or any part of the Collateral; and (b) take such action, employing attorneys satisfactory to
Assignee, as may be necessary to preserve, protect, and defend the interests of Developer, CLG, and
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Assignee affected by such proceeding. Developer and CLG shall take such action in connection therewith
as Assignee reasonably may require. Any and all Losses that may be incurred by Assignee in connection with
any proceeding to which Assignee is made a party on account of this Agreement shall constitute Lender Fees
and be a part of the Indebtedness secured by this Agreement. if Assignee pays, discharges, or satisfies, in
whole or in part, any prior lien or encumbrance upon all or any part of the Collateral, then Assignee shall be
subrogated to the rights of the holder of such lien as fully as if such lien had been assigned to Assignee.
15. Notice. Any notice required or permitted to be given by either party to this Agreement 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 Assignee at One Indiana Square, Suite 227, Indianapolis,
Indiana 46204, Attention: ; to each of Developer and CLG at 47 South Pennsylvania
Street, 10th Floor, Indianapolis, Indiana 46204, Facsimile: 317-635-1100, Attn: Ersal Ozdemir and Joseph
Pieters, Esq, with a copy to: Donald E. Williams, Esq., Barnes &Thornburg LLP, 11 South Meridian Street,
Indianapolis, Indiana 46204, Facsimile: 317-231-7433; and to CRC at City of Carmel, Indiana, One Civic
Square, 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. Any party may change its address for notice from time to time by delivering notice to the other
parties as provided above.
16. Authority. Each undersigned person executing this Agreement on behalf of Developer, CLG,
Assignee, and CRC represents and certifies that: (a)he or she is empowered, and has been authorized by
all necessary action of Developer, CLG, Assignee, and CRC, respectively, to execute and deliver this
Agreement; (b) he or she has full capacity, power,and authority to enter into and carry out this Agreement;
and(c)the execution,delivery,and performance of this Agreement have been authorized by Developer,CLG,
Assignee, and CRC, respectively.
17. Severability. If any one or more of the terms or conditions of this Agreement is determined to be
invalid, then: (a)such invalidity, at the option of Assignee,shall not affect any other term or condition of this
Agreement;and(b)this Agreement shall be construed as if such invalid term or condition had never existed.
The invalidity of any term or condition of this Agreement in any jurisdiction shall not affect the validity of such
term or condition in any other jurisdiction.
18. Applicable Law. The validity,construction, interpretation,and enforcement of this Agreement shall
be governed by, and construed in accordance with, the laws of the State of Indiana, without regard to
principles of conflicts of law. All actions or proceedings arising in connection with this Agreement shall be tried
and litigated only in the state courts located in Hamilton County, Indiana, or the federal courts with venue that
includes Hamilton County, Indiana. The parties waive, to the extent permitted under applicable law: (a)the
right to a trial by jury;and (b)any right to assert the doctrine of"forum non conveniens"or to object to venue;
in either case to the extent any proceeding is brought in accordance with this Section.
19. Successors. The terms and conditions of this Agreement shall:(a)run with the Collateral;and(b)be
binding upon, and inure to the benefit of: (I) Developer and its administrators, successors and assigns, and
all parties claiming under or through Developer;(b)CLG and its administrators,successors and assigns,and
all parties claiming under or through CLG; and (iii) Assignee and its successors and assigns. The term:
(a)"Developer"shall include all administrators,successors,and assigns of Carmel Lofts LLC;(b)"CLG"shall
include all administrators, successors, and assigns of Carmel Lofts Garage, LLC; and (c) "Assignee"shall
include the successors and assigns of Regions Bank. All parties who purport to have acquired any interest
in the Collateral shall be deemed to have notice of, and shall be bound by, the terms of this Agreement, the
Installment Contract, the Loan Documents, and the Tri-Party Agreement.
20. Miscellaneous. Any and all terms and/or conditions of this Agreement from time to time may be
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waived by Assignee to such extent, and in such a manner, as Assignee desires, by an instrument in writing
signed by Assignee; provided that no such waiver shall affect or impair the rights of Assignee hereunder,
except to the extent specifically stated in such written instrument. The captions used in this Agreement are
for convenience only and are not to be construed as defining or limiting the terms and conditions of this
Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject
matter hereof,and may be modified,amended,or revised only by a written agreement signed by each of the
parties. This Agreement may be executed in counterparts,each of which shall be an original,but all of which,
when taken together, shall constitute the same agreement. All Exhibits referenced in this Agreement are
attached hereto and incorporated herein by reference.
IN WITNESS WHEREOF,Developer has executed this Collateral Assignment,LockBox,and
Security Agreement(Garage)as of the date set forth above.
CARMEL LOFTS LLC
By: Keystone Group, LLC., Sole Member
By:
Ersal Ozdemir, Sole Member
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared Ersal
Ozdemir, Sole Member of Keystone Group, LLC., Sole Member of Carmel Lofts LLC, who executed the
foregoing Collateral Assignment,Lock Box,and Security Agreement(Garage)for and on behalf of such entity.
Witness my hand and Notarial Seal this day of , 2009.
By:
Notary Public
Printed Name:
i am a resident of: County,
My commission expires: _
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IN WITNESS WHEREOF, CLG has executed this Collateral Assignment, Lock Box, and
Security Agreement(Garage)as of the date set forth above.
CARMEL LOFTS GARAGE, LLC
By: Keystone Group, LLC., Sole Member
By:
Ersal Ozdemir, Sole Member
STATE OF INDIANA
) SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared Ersal
Ozdemir, Sole Member of Keystone Group, LLC.,Sole Member of Carmel Lofts Garage, LLC,who executed
the foregoing Collateral Assignment, Lock Box, and Security Agreement(Garage)for and on behalf of such
entity.
Witness my hand and Notarial Seal this day of ,2009.
By:
Notary Public
Printed Name:
I am a resident of: County,
My commission expires:
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IN WITNESS WHEREOF,Assignee has executed this Collateral Assignment,Lock Box,and
Security Agreement(Garage)as of the date set forth above.
REGIONS BANK
By:
Printed:
Title:
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared
, the of Regions Bank, who executed the foregoing
Collateral Assignment, Lock Box, and Security Agreement(Garage)for and on behalf of such entity.
Witness my hand and Notarial Seal this day of , 2009.
By:
Notary Public
Printed Name:
i am a resident of: County,
My commission expires:
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IN WITNESS WHEREOF, CRC has executed this Collateral Assignment, Lock Box, and
Security Agreement(Garage)as of the date set forth above.
THE CITY OF CARMEL
REDEVELOPMENT COMMISSION
By:
Ronald E. Carter, President
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for the State of Indiana, personally appeared
Ronald E. Carter, the President of The City of Carmel Redevelopment Commission, who executed the
foregoing Collateral Assignment,Lock Box,and Security Agreement(Garage)for and on behalf of such entity.
Witness my hand and Notarial Seal this day of , 2009.
By:
• Notary Public
Printed Name:
I am a resident of: County, _
My commission expires:
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Exhibit .+.,'.
Terms and conditions of Fixed Rate Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master
Loan Program Agreement. Accordingly, all capitalized terms used but not defined in this Contract
shall have the meanings ascribed to such terms in the Master Loan Program Agreement. For
purposes of this Exhibit, Developer and CLG constitute Qualified Developers, and the Garage
Construction Loan constitutes a Developer Loan.
CRC may exercise the Fixed Rate Option by delivery of written notice to Lender prior to the
applicable Advance Date; provided that Lender acknowledges that CRC has exercised the Fixed
Rate Option with respect to the Advance Amount to be deposited on the first Advance Date.
Notwithstanding anything in this Agreement or any Developer Loan Documents to the contrary:
(a) on the first Advance Date; and (b) on the second Advance Date, if CRC has exercised the
Fixed Rate Option with respect to the Advance Amount to be deposited on the second Advance
Date; CRC shall execute a Hedge Agreement(as defined below) in a notional amount equal to the
amount of the applicable Advance Amount, which Hedge Agreement shall provide for an interest
rate swap for the purpose of hedging the Qualified Developers' exposure to fluctuations in interest
rates applicable to Developer Loans.
For purposes of this Exhibit, "Hedge Agreement" shall mean: (a) an agreement (including terms
and conditions incorporated by reference therein and all schedules thereto and confirmations
thereof) in any notional principal amount (which notional amount may reduce periodically under
the agreement) from time to time and at any time executed and delivered by CRC and Lender that
provides for an interest rate, currency, equity, credit or commodity swap, cap, floor or collar, sport
or foreign exchange transaction, cross-currency rate swap, currency option, any combination
thereof, or option with respect to any of the foregoing or any similar transactions, for the purpose
of hedging the Qualified Developers' exposure to fluctuations in interest rates, exchange rates,
currency, stock, portfolio or loan valuations or commodity prices (including any such or similar
agreement or transaction entered into by Lender in connection with any other agreement or
transaction between CRC and Lender); and (b) a master agreement for any of the foregoing
agreements referenced in (a); together with all supplements."
The parties acknowledge that the Fixed Rate Option has been exercised with respect to the
Garage Construction Loan
Exhibit E
Terms and conditions of Extension Option
The terms and conditions of this Exhibit match those in the corresponding Exhibit to the Master
Loan Program Agreement. Accordingly, all capitalized terms used but not defined in this Contract
shall have the meanings ascribed to such terms in the Master Loan Program Agreement. For
purposes of this Exhibit, Developer and CLG constitute Qualified Developers, and the Garage
Construction Loan constitutes a Developer Loan.
Not later than one hundred twenty (120) days prior to the end of the term of any Developer Loan,
CRC and the applicable Qualified Developer may request an extension of the term of such
Developer 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 such Qualified
Developer whether such extension shall be granted not later than sixty (60) days prior to the end
of the current term of the Developer Loan.
•
r
• C4
TRI-PARTY AGREEMENT
Garage
This Tri-Party Agreement (Garage) (the "Agreement") is executed as of the _ day of
, 2009, by and among Regions Bank, having its principal office at One Indiana Square,
Suite 227, Indianapolis, Indiana 46204 (the"Lender"), Carmel Lofts Garage, LLC, having its principal office
at 47 South Pennsylvania Street, 10`h Floor, Indianapolis, Indiana 46204(the"Borrower"),Carmel Lofts LLC,
having its principal office at 47 South Pennsylvania Street, 10`h Floor, Indianapolis, Indiana 46204 (the
"Developer"), and The City of Carmel Redevelopment Commission, having its principal office at City of
Carmel, Indiana, One Civic Square, Carmel, Indiana 46032 ("CRC").
1. Definitions.
Acceleration Exercise Notice shall mean a written notice pursuant to which Lender notifies CRC that Lender
is exercising the Acceleration Option.
Acceleration Option shall mean the option (but not the obligation) of Lender to accelerate the payments
payable by CRC pursuant to the Installment Contract;provided that,the amount that CRC shall be obligated
to pay in connection with such an acceleration shall be the Base Acceleration Payment, except as provided
to the contrary in Subsection 4(c).
Acceleration Payment shall mean the Base Acceleration Payment or the Adjusted Acceleration Payment,
as applicable.
Acceleration Payment Date shall mean the date on which CRC pays the Acceleration Payment to Lender.
If the closing with respect to the transfer of the Garage has not occurred as of the Acceleration Payment Date,
then the Acceleration Payment Date also shall be the Garage Closing Date,
Access Declaration shall mean that certain Access and Use Declaration executed by Carmel Lofts LLC as
"Declarant"and recorded in the Recorder's Office as instrument Number
Accrued Interest shall mean the Base Rate Accrued Interest or the Adjusted Rate Accrued Interest, as
applicable.
Adjusted Acceleration Payment shall mean the sum of:(a)the Adjusted Rate Accrued interest;and(b)the
Adjusted Outstanding Principal Balance; provided that,for purposes of this definition,all references to"Loan
Purchase Date" in the definitions of Adjusted Rate Accrued Interest and Adjusted Outstanding Principal
Balance shall be deemed to be references to the Acceleration Payment Date.
Adjusted Outstanding Principal Balance shall mean the amount, on the Loan Purchase Date, of the
principal balance of advances of proceeds of the Loan through the Loan Purchase Date that: (a)have been
made to pay Permitted Costs; and (b) remain outstanding; which amount shall include all Lender Fees
(including all Lender Fees that are owed as a result of a Loan Default) and Loan Costs; provided that the
Adjusted Outstanding Principal Balance shall be reduced by any Prepayments that have been remitted to
Lender, even if Lender has not yet applied any such Prepayments as required pursuant to Section 8.
Adjusted Purchase Price shall mean the sum of: (a) the Adjusted Rate Accrued interest; and (b) the
Adjusted Outstanding Principal Balance.
Adjusted Rate Accrued Interest shall mean all interest on the Adjusted Outstanding Principal Balance that
has accrued, and remains unpaid, as of the Loan Purchase Date, regardless of whether such interest has
accrued at the Loan Rate or the Default Rate.
Agency shall mean any applicable:(a)governmental agency, board,commission,or department;or(b)other
judicial, administrative, or regulatory body.
Base Acceleration Payment shall mean the sum of: (a)the Base Rate Accrued Interest; and (b)the Base
Outstanding Principal Balance;provided that,for purposes of this definition,all references to"Loan Purchase
Date" in the definitions of Base Rate Accrued Interest and Base Outstanding Principal Balance shall be
deemed to be references to the Acceleration Payment Date. The Base Acceleration Payment corresponds
to the"Full Prepayment Price" under the installment Contract.
Base Outstanding Principal Balance shall mean the amount,on the Loan Purchase Date, of the principal
balance of advances of proceeds of the Loan through the Loan Purchase Date that: (a)have been made to
pay Permitted Costs;and(b)remain outstanding;which amount shall include all Lender Fees and Loan Costs,
to the extent that such Lender Fees and Loan Costs have been incurred in the absence of a Loan Default;
provided that such amount specifically shall exclude all Lender Fees and Loan Costs that are owed as a result
of a Loan Default. The Base Outstanding Principal Balance shall be reduced by any Prepayments that have
been remitted to Lender, even if Lender has not yet applied any such Prepayments as required pursuant to
Section 8. In no event shall the Base Outstanding Principal Balance exceed$8,000,000.00,plus Lender Fees
and Loan Costs, to the extent that such Lender Fees and Loan Costs have been incurred in the absence of
a Loan Default.
Base Purchase Price shall mean the sum of: (a) the Base Rate Accrued Interest; and (b) the Base
Outstanding Principal Balance.
Base Rate Accrued Interest shall mean all interest on the Base Outstanding Principal Balance that has
accrued at the Loan Rate, and remains unpaid, as of the Loan Purchase Date.
Borrower Loan Default shall mean a Loan Default caused by: (a) the failure by Borrower to observe or
perform any obligation under the Loan Documents; or(b) any"Event of Default" by Borrower or Developer
under the Installment Contract.
Building shall mean the building to be constructed on the Site pursuant to the Project Agreement.
Claims shall mean claims, liabilities, losses, damages, costs, and expenses (including, without limitation,
reasonable attorneys'fees).
Collateral Assignment shall mean that certain Collateral Assignment, Lock Box, and Security Agreement
(Garage)of even date hereof executed by and among Borrower, Developer, Lender, and CRC.
Contract Default Notice shall mean a copy of any notice of default delivered to Borrower or Developer
pursuant to the Installment Contract.
CRC Monetary Default shall mean an"Event of Default"by CRC under the Installment Contract or the Master
Loan Program Agreement that results from the failure of CRC to make any payment when due thereunder,
which"Event of Default"causes a Loan Default.
CRC Non-Monetary Default shall mean an"Event of Default"by CRC under the Installment Contractor the
Master Loan Program Agreement that results from the failure of CRC to observe or perform any obligation
to be observed or performed by it thereunder(other than the failure to make any payment when due), which
"Event of Default",in the case of an"Event of Default"under the Installment Contract,causes a Loan Default.
CRC Spaces shall have the meaning set forth in the Access Declaration.
CRC Spaces Rights shall mean CRC's right to set fees charged to members of the public or other users of
CRC Spaces under the Access Declaration.
•
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Cure Notice shall mean a written notice pursuant to which CRC notifies Lender that CRC has elected to cure
a default by Borrower or Developer that, upon the expiration of applicable cure periods,would constitute a
Borrower Loan Default.
Default Rate shall have the meaning set forth in the Loan Agreement.
Developer Collateral shall have the meaning set forth in the Loan Agreement.
Developer Contract Default shall mean any"Event of Default"by Developer under the Project Agreement
or the Installment Contract, regardless of whether such"Event of Default"results in a Loan Default.
Developer Garage Put Trigger Date shall mean the"Put Trigger Date" under the Installment Contract.
Full Prepayment shall mean payment in full by CRC of the"Full Prepayment Price" under the Installment
• Contract as a result of the exercise by CRC of the "Full Prepayment Option" (as defined in the Installment
Contract).
Garage shall mean a two-level underground parking garage to be:(a)constructed on the Site pursuant to the
Installment Contract and the Garage Construction Contract;and(b)conveyed by Developer to CRC pursuant
to the Installment Contract. The Garage is the"Garage" under the Project Agreement and the Installment
Contract.
Garage Closing Date shall mean the date of the closing with respect to the transfer of the Garage to CRC.
Garage Construction Contract shall have the meaning set forth in the Installment Contract.
Huntington Loan shall mean the construction loan for the Building made to Developer by Huntington Bank.
Installment Contract shall mean that certain Garage Installment Purchase Contract executed by and
between CRC and Developer and dated March 19,2009, a copy of which is attached hereto as Exhibit A.
Laws shall mean all applicable federal,state,or local laws,statutes,ordinances, rules,or regulations,or any
orders or decrees of any court, agency, or regulatory body.
Lender Cure Period shall mean the period that commences upon the default by Borrower or Developer under
the Project Agreement or the Installment Contract and expires on the date that is 45 days after the later of:
(a)the expiration of the applicable cure period under the Project Agreement or the Installment Contract, as
applicable; or(b) receipt by Lender of the Contract Default Notice.
Lender Fees shall have the meaning set forth in the Loan Agreement.
Loan shall mean a loan from Lender to Borrower made to finance the payment of Permitted Costs,which loan
shall be in the original principal amount of$8,000,000.00.
Loan Agreement shall mean that certain Loan Agreement(Garage)of even date herewith executed by and
between Lender and Borrower.
Loan Closing Date shall mean the date of the closing of the Loan.
Loan Costs shall have the meaning set forth in the Loan Agreement.
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Loan Default shall mean an"Event of Default"under any of the Loan Documents or the Master Loan Program
Agreement;provided that, if"Event of Default"is not a defined term in any Loan Document,then,with respect
to such Loan Document, there shall be a Loan Default if Borrower or Developer is in default thereunder
beyond any applicable notice or cure periods.
Loan Default Notice shall mean a written notice pursuant to which Lender notifies CRC that a Loan Default
exists.
Loan Documents shall mean the documents evidencing and/or securing the Loan,including,specifically but
without limitation, the Loan Agreement, the Note, and the Collateral Assignment.
Loan Interests shall mean:(a)the Loan;(b)the Loan Documents;(c)the collateral assignments and security
interests granted in the Collateral Assignment (including the collateral assignment of, and security in, the
Installment Contract); and (d)all rights and interests of Lender with respect to the Loan and under the Loan
Documents, including, specifically, the right to: (i)enforce the terms and conditions of the Loan Documents;
(ii)collect the Accrued interest and the Outstanding Principal Balance; (iii) enforce the Installment Contract
in accordance with the terms and conditions of the Collateral Assignment; and (iv) exercise all rights and
remedies afforded by the Laws to secured lenders with respect to security interests in assigned installment
contracts.
Loan Interests Closing shall mean the closing with respect to the purchase by CRC of the Loan Interests.
Loan Purchase Date shall mean the date on which the Loan Interests Closing occurs.
Loan Purchase Price shall mean the Base Purchase Price or the Adjusted Purchase Price, as applicable.
Loan Rate shall mean the regular(non-default)rate of interest accruing on the Outstanding Principal Balance
pursuant to the Loan Documents.
Lock Box Account shall have the meaning set forth in the Collateral Assignment:
Master Loan Program Agreement shall mean that certain Master Loan Program Agreement executed by
and between CRC and Lender, dated December 30, 2008, as amended by that certain First Amendment to
Master Loan Program Agreement dated as of March 19,2009.
Maturity Date shall mean the date on which the Outstanding Principal Balance is scheduled to become due
in full pursuant to the Note, as such date may be extended pursuant to the terms and conditions of the Loan
Agreement and/or the Note.
Note shall mean the Promissory Note (Garage) of even date herewith in the original principal amount of
$8,000,000.00,which Promissory Note (Garage) has been executed by Borrower in favor of Lender.
Outside Closing Date shall mean,with respect to the Loan Interests Closing,the date that is:(a)in the case
of the exercise by CRC of the Purchase Option, 30 days after CRC delivers the Purchase Exercise Notice;
or(b)in the case of the exercise by Lender of the Put Option, 15 days after Lender delivers the Put Exercise
Notice; provided that, in the case of an exercise of the Put Option as a result of a Borrower Loan Default,the
Outside Closing Date shall mean the date that is 15 days after the expiration of the Standstill Period.
Outstanding Principal Balance shall mean the Base Outstanding Principal Balance or the Adjusted
Outstanding Principal Balance, as applicable.
Parking Manager shall have the meaning set forth in the Access Declaration.
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Partial Prepayment shall mean payment by CRC of a"Partial Prepayment" under the Installment Contract.
Permitted Costs shall mean the sums paid by Borrower or Developer pursuant to the Garage Construction
Contract to construct the Garage in accordance with the Installment Contract and the Garage Construction
Contract.
Prepayment shall mean a Partial Prepayment or the Full Prepayment, as applicable.
Project Agreement shall mean that certain Project Agreement by and between CRC and Developer,dated
as of January 5, 2009, as amended by that certain First Amendment to Project Agreement dated
March 19, 2009.
Purchase Exercise Notice shall mean a written notice pursuant to which CRC notifies Lender that CRC is
exercising the Purchase Option.
Purchase Option shall mean the option(but not the obligation)of CRC to require Lender to convey the Loan
interests to CRC for: (a) the Base Purchase Price, in the case of a Borrower Loan Default or a Developer
Contract Default,except to the extent that Subsection 3(d)is applicable;or(b)the Adjusted Purchase Price,
in the case of a CRC Monetary Default or a CRC Non-Monetary Default.
Put Exercise Notice shall mean a written notice pursuant to which Lender notifies CRC that Lender is
exercising the Put Option.
Put Option shall mean the option (but not the obligation) of Lender to require CRC to purchase the Loan
interests from Lender for the Base Purchase Price, except to the extent that Subsection 3(d) is applicable.
Site shall mean that certain real estate depicted and/or described on Exhibit C.
Standstill Period shall mean the period: (a) commencing upon delivery of a Loan Default Notice; and
(b)ending on the last to occur of the date:(i)that is 30 days after delivery of the Loan Default Notice to CRC;
or(ii) of the expiration of the cure period provided to CRC in Section 6. Notwithstanding the foregoing, if
either: (a) CRC has exercised the Purchase Option; or (b) Lender has exercised the Put Option; then the
Standstill Period shall end on the first to occur of the date: (a)determined pursuant to clause(b)of the prior
sentence; or(b)on which the Loan Interests Closing occurs; provided that, if, due to a failure of Lender, the
Loan interests Closing does not occur on or before the Outside Closing Date,then the Standstill Period shall
be extended until the Loan Interests Closing occurs.
Transfer shall mean; (a)any sale;transfer, conveyance, assignment, pledge, or other disposition of, or any
encumbrance upon,the Developer Collateral or any interest therein; or(b)any granting of a security interest
in the Developer Collateral.
2. Purchase.
(a) General.
(i) If there is a Developer Contract Default or a Loan Default,
regardless of whether such Loan Default results from a CRC Monetary
Default,a CRC Non-Monetary Default,ora Borrower Loan Default,then the
Purchase Option shall apply. As provided in the definition of Purchase
Option, in the case of:(A)a Borrower Loan Default or a Developer Contract
Default, the Base Purchase Price shall apply, except in the event that
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Subsection 3(d)is applicable;and(B)a CRC Monetary Default,a CRC Non-
Monetary Default, or Subsection 3(d) being applicable; the Adjusted
Purchase Price shall apply.
(ii) if there is a Loan Default, regardless of whether such Loan Default
results from a CRC Monetary Default, a CRC Non-Monetary Default, or a
Borrower Loan Default, then the Put Option shall apply. As provided in the
definition of Put Option, the Base Purchase Price shall apply, except in the
event that Subsection 3(d) is applicable.
(iii) If there is a CRC Monetary Default or a CRC Non-Monetary Default,
then the Acceleration Option shall apply. As provided in the definition of
Acceleration Option,the Base Acceleration Payment shall apply,except as
provided to the contrary in Subsection 4(c).
(b) Exercise-Developer Contract Default. If there is a Developer Contract Default,then
CRC may exercise the Purchase Option by delivering a Purchase Exercise Notice to Lender.
Lender shall have no right to exercise the Put Option or the Acceleration Option in the event
of a Developer Contract Default.
(c) Exercise-Loan Default.
(i) Lender shall deliver a Loan Default Notice to CRC concurrently with
any notice provided to Borrower and/or Developer under the Loan
Documents with respect to the Loan Default; provided that, if Lender: (A)is
not obligated to(or otherwise does not)provide any such notice to Borrower
and/or Developer; and (B) intends to exercise any of its remedies with
respect to such Loan Default; then Lender shall deliver a Loan Default
Notice to CRC prior to exercising any such remedies,
(ii) At any time after CRC receives a Loan Default Notice, CRC may
exercise the Purchase Option by delivering a Purchase Exercise Notice to
Lender and Borrower.
(iii) If Lender delivers to CRC a Loan Default Notice, the subject of
which is a Borrower Loan Default not resulting from a CRC Monetary Default
or a CRC Non-Monetary Default, then, at any time after delivery of such
Loan Default Notice to CRC,.Lender may exercise the Put Option by
delivering a Put Exercise Notice to CRC and Borrower; provided that,
notwithstanding any other term or condition of this Agreement,if,prior to the
last to occur of the date:(A)that is 30 days after delivery of the Loan Default
Notice to CRC; or (B) of the expiration of the Standstill Period; the
underlying Loan Default is cured, then: (A) the exercise by Lender of the
Put Option shall be deemed to be rescinded and of no further force or effect;
and(B)neither the Outside Closing Date nor any of the terms or conditions
of Section 3 shall apply.
(iv) If Lender delivers to CRC a Loan Default Notice, the subject of
which is a CRC Monetary Default or a CRC Non-Monetary Default,then,at
any time after delivery of such Loan Default Notice, Lender may exercise the
Acceleration Option by delivering an Acceleration Exercise Notice to CRC
and Borrower; provided that,notwithstanding any other term or condition of
this Agreement, if, prior to the date that is: (A)ten days after delivery of the
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Loan Default Notice, in the case of the first two CRC Monetary Defaults in
any given 12 month period; (B) ten days after the occurrence of the CRC
Monetary Default,in the case of the third or any subsequent CRC Monetary
Default in any given 12 month period; or (C) in the case of a CRC
Non-Monetary Default,the last to occur of the date that is: (1)30 days after
delivery of the Loan Default Notice to CRC;or(2)the expiration of the cure
period provided to CRC in Section 6;the CRC Monetary Default or the CRC
Non-Monetary Default, as applicable, is cured, then: (A) the exercise by
Lender of the Acceleration Option shall be deemed to be rescinded and of
no further force or effect; and (B) neither the Outside Closing Date nor any
other term or condition of Section 4 shall apply.
(v) Notwithstanding anything to the contrary set forth herein or in the
Loan Documents, if, prior to the expiration of the Standstill Period, either:
(A) CRC delivers a Purchase Exercise Notice to Lender and Borrower, or
(B) Lender delivers a Put Exercise Notice to CRC and Borrower; then
Lender shall not exercise any of its remedies or apply the Default Rate with
respect to such Loan Default, unless, due to a failure of CRC, the Loan
Interests Closing has not occurred as of the Outside Closing Date.
3. Loan Interests Closing.
(a) CRC Exercise. If CRC exercises the Purchase Option, then the Loan Interests
Closing shall occur on or before the date that is 30 days after CRC delivers to Lender the
Purchase Exercise Notice.
(b) Lender Exercise. If Lender exercises the Put Option,then the Loan Interests Closing
shall occur on or before the date that is 15 days after Lender delivers the Put Exercise Notice
to CRC; provided that, in the case of an exercise of the Put Option as a result of a Borrower
Loan Default not resulting from a CRC Monetary Default or a CRC Non-Monetary Default,
the Loan Interests Closing shall not occur until the date that is 15 days after the expiration
of the Standstill Period.
(c) Closing Deliveries. At the Loan Interests Closing: (i) CRC shall pay the Loan
Purchase Price to Lender; and (ii) Lender shall assign the Loan Interests to CRC pursuant
to assignment documents that: (A)are adequate to vest the Loan Interests in CRC free and
clear of the rights or interests of any other party; (B)contain certifications by Lender to the
effect that Lender:(1)is not in default under this Agreement(including,without limitation,that
Lender is in compliance with the terms and conditions of Section 5); and(2)is not aware of
any defenses or offsets of Borrower or Developer to:(aa)enforcement by CRC,as assignee
of Lender, of the Loan Documents; (bb) collection by CRC, as assignee of Lender, of any
amounts due from Borrower, Developer, or Lender under the Loan Documents; and/or
(cc) exercise by CRC, as assignee of Lender, of the rights and remedies afforded by the
Laws to secured lenders with respect to security interests in assigned installment contracts;
and (C) otherwise reasonably are acceptable to CRC.
(d) Delinquency. Notwithstanding anything to the contrary set forth herein, if: (i) the
applicable Loan Purchase Price is the Base Purchase Price;and(ii)due to a failure of CRC,
the Loan Interests Closing does not occur on or before the Outside Closing Date;then the
applicable Loan Purchase Price automatically shall become the Adjusted Purchase Price.
4. Acceleration Payment Date.
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(a) Payment Date. If Lender exercises the Acceleration Option,then the Acceleration
Payment Date shall occur on or before the date that is 15 days after Lender delivers the
Acceleration Exercise Notice.
(b) Payment Date Deliveries. On the Acceleration Payment Date, CRC shalt pay the
Acceleration Payment to Lender. Upon CRC's payment of the Acceleration Payment, the
Note shall be cancelled, all other Loan Documents shall be terminated, and Borrower shall
be released from all obligations with respect to the Loan. If the Acceleration Payment Date
is also the Garage Closing Date,then,contemporaneously with the payment by CRC of the
Acceleration Payment, and in connection with the transfer to CRC of fee simple title to the
Garage: (i)Borrower, Developer,and CRC shall execute and deliver such documents as are
required pursuant to Subsection 10(b) of the Installment Contract; and (ii) Developer shall
deliver possession of the Garage to CRC in accordance with Subsection 10(b) of the
Installment Contract. Notwithstanding anything to the contrary set forth herein,if the Garage
Closing Date occurs prior to the first to occur of: (i) the expiration of the term of the
Huntington Loan; or(ii)the date that is the seventh anniversary of the Loan Closing Date;
then CRC shall acquire fee simple title to the Garage subject to the lien of the mortgage
securing the Huntington Loan, so long as such mortgage remains subject to the continuing
rights of CRC under the Installment Contract.
(c) Delinquency. Notwithstanding anything to the contrary set forth herein, if, due to a
failure of CRC, the Acceleration Payment Date has not occurred within 15 days after Lender
delivers the Acceleration Exercise Notice to CRC, then, in lieu of the Base Acceleration
Payment, CRC shall be obligated to pay the Adjusted Acceleration Payment.
5. Prohibitions. In each case, subject to the terms and conditions of this Agreement:
(a) In the case of a Borrower Loan Default,Lender shall not accelerate the Maturity Date
or the payment of all or any portion of the Outstanding Principal Balance, unless and until
Lender has complied with the terms and conditions of Section 6 and either:(i)CRC does not
elect to cure the applicable default by Borrower or Developer within the time permitted
pursuant to Section 6; or (ii) CRC: (A) timely elects to cure such default by Borrower or
Developer; but (B) does not complete the foregoing within the time permitted pursuant to
Section 6.
(b) Lender shall not: (i) require payments by Borrower of all or any portion of the
Outstanding Principal Balance, except: (A) in accordance with the terms and conditions of
the Note with respect to regular payments of principal and interest; (B)in the case of a CRC
Monetary Default or a CRC Non-Monetary Default;(C)when Lender would be entitled under
Subsection 5(a)to accelerate the maturity date of the Loan; or(D) on the Maturity Date; or
(ii)condition acceptance of a Prepayment upon receipt of a prepayment premium or penalty,
except in accordance with the terms and conditions of the Loan Documents.
(c) Lender shall not modify,amend,or revise any of the Loan Documents to:(i)increase
the default rate of interest to an amount that exceeds the Loan Rate plus 4%; (ii) increase
the Loan Rate; (iii) change the terms with respect to payment or prepayment of the
Outstanding Principal Balance;(iv)increase or materially change the obligations of Borrower
or Developer under the Loan Documents; or(v)decrease or materially change the rights of
Borrower or Developer under the Loan Documents; provided that, notwithstanding the
foregoing, the parties agree that Lender may modify, amend, or revise any of the Loan
Documents to the extent necessary to bring the Loan Documents into compliance with the
Laws.
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(d) Lender shall not advance Loan proceeds in excess of:(i)$8,000,000.00;plus(ii)the
amount of the Lender Fees and Loan Costs; provided that, if the Loan Purchase Price has
become the Adjusted Purchase Price as provided in Subsection 3(d), then Lender may
advance additional Loan proceeds in accordance with the terms and conditions of the Loan
Documents.
(e) Lender shall not waive, release, delete, or compromise the terms or conditions of
Section 9 or Subsection 10 (j), 10(k), 10(1), and/or 10(m) of the Loan Agreement(or any of
the corresponding Subsections in any other Loan Document) or waive or release an Event
of Default under any of the foregoing Subsections(or any of the corresponding Subsections
in any other Loan Document).
(f) Lender shall not waive, release, delete, or compromise the obligations of Borrower
to pay the.Accrued Interest or the Outstanding Principal Balance, except: (i) in compliance
with the terms and conditions of this Agreement; or(ii) if the Loan Purchase Price and the
Acceleration Payment are reduced commensurately.
(g) Except in accordance with the terms and conditions of this Agreement,Lender shall
not consent to Borrower or Developer directly or indirectly selling, transferring, assigning,
conveying,pledging,or otherwise delegating or disposing of its interests in or to, its rights to
or under, or its obligations under or for, the Loan or the Loan Documents.
(h) Lender shall not modify, amend, or revise any of the Loan Documents (or waive,
release,delete, or compromise the rights and remedies of Lender thereunder)so that, if the
Loan Interests were assigned to CRC, the Loan Documents would not provide to CRC, as
assignee,the right to:(I)collect the Accrued Interest and the Outstanding Principal Balance;
and(ii)exercise all rights and remedies afforded by the Laws to secured lenders with respect
to security interests in assigned installment contracts.
(i) Lender shall not modify,amend,or revise any of the Loan Documents to:(I)expand
or enlarge the categories or types of costs,expenses,fees, or charges that may be incurred
by Lender or charged to Borrower or Developer;or(ii)otherwise add to or supplement such
costs, expenses, fees, or charges.
(j) Lender shall not directly or indirectly sell, transfer, assign, convey, pledge, or
otherwise delegate or dispose of its interests in or to,or its rights to or under,any of the Loan
Interests,except subject to the terms and conditions of this Agreement and the rights of CRC
hereunder.
6. CRC Cure Right.
(a) Notices. Lender shall provide to CRC copies of all notices of defaults delivered to
Borrower and/or Developer pursuant to the Loan Documents,which copies shall be delivered
simultaneously with the notice delivered to Borrower and/or Developer; provided that, if no
notice of default is required to be delivered to Borrower and/or Developer prior to a default
becoming a Loan Default, then, prior to exercising any of its remedies under the Loan
Documents or applying the Default Rate with respect to the default, Lender shall deliver
written notice to CRC.
(b) Default. If such notice is for a default that, upon the expiration of applicable cure
periods,will constitute a Borrower Loan Default(which Borrower Loan Default does not result
from a CRC Monetary Default or a CRC Non-Monetary Default), then CRC shall have the
option (but not the obligation) to cure such default; provided that, to exercise such option,
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CRC shall deliver a Cure Notice to Lender on or before the date that is 30 days after CRC
receives notice from Lender of the existence of such default. If CRC timely elects to cure the
default,then CRC shall effectuate the cure within 30 days after delivery of the Cure Notice;
• provided that,if such default is of a nature that it reasonably cannot be cured within 30 days,
then, so long as CRC commences the cure within the 30 day period, the period for
completing the cure shall be extended for as long as CRC diligently is pursuing such
completion, which extension shall not exceed a period of 90 days.
(c) Standstill. Notwithstanding anything to the contrary set forth in the Loan Documents,
Lender shall not exercise any of its remedies under the Loan Documents or apply the Default
Rate with respect to any default that, upon the expiration of applicable cure periods, will
constitute a Borrower Loan Default(which Borrower Loan Default does not result from a CRC
Monetary Default ora CRC Non-Monetary Default)until the expiration of the Standstill Period.
If CRC cures a default by Borrower or Developer pursuant to this Section, then: (i) Lender
shall accept such cure by CRC as a cure by Borrower or Developer; (ii) Lender shall not
exercise any of its remedies under the Loan Documents with respect to the default,as cured
or addressed by CRC; and (iii) Borrower or Developer, immediately upon receipt of written
demand,shall reimburse CRC for all costs and expenses incurred by CRC in connection with
effectuating such cure.
7. Consents and Protections.
(a) Collateral Assignment. CRC: (i) consents to the collateral assignment of the
Installment Contract to Lender as security for the Loan; (ii) agrees to execute such
documents as Lender reasonably may require to effect: (A)such collateral assignment;and
(B)the security interest of Lender in the Installment Contract;and (iii)agrees that, pursuant
to the Collateral Assignment, Lender shall have the right, as if Lender were in direct privity
with CRC, to enforce the obligations of CRC under the Installment Contract until the first to
occur of the date on which: (A) the Loan is repaid in full; (B) CRC purchases the Loan
Interests; or(C) CRC pays the Acceleration Payment.
(b) Contracts.
(i) If there is a Developer Contract Default, then CRC may exercise
any remedies available to it under the Project Agreement or the Installment
Contract; provided that, in no event shall CRC:(A)exercise any remedy of
offset that otherwise may be available to it;or(B)terminate the Installment
Contract; unless and until CRC pays either the Purchase Price or the Full
Prepayment Price (as each is defined in the Installment Contract).
(ii) Notwithstanding anything to the contrary set forth herein or in any
Loan Documents: (A) a default by CRC, Borrower, or Developer, as
applicable,under the Installment Contract shall not constitute a Loan Default
unless and until such default becomes an 'Event of Default" by CRC,
Borrower, or Developer, respectively, under the Installment Contract; and
(B) undeclared Developer Contract Defaults shall not constitute Loan
Defaults.
(c) CRC Spaces Rights. CRC hereby assigns the CRC Spaces Rights to Lender;
provided that, unless and until Lender has exercised the Acceleration Option or the Put
Option in accordance with the terms and conditions of this Agreement:(i)CRC may continue
to exercise the CRC Spaces Rights as though there had been no assignment of the CRC
Spaces Rights to Lender;and (ii)Lender shall not exercise the CRC Spaces Rights. At any
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•
time after Lender has exercised the Acceleration Option or the Put Option in accordance with
the terms and conditions of this Agreement, Lender may deliver to Borrower and Developer
a written notice stating: (i)that Lender is exercising the CRC Spaces Rights; (ii) the fees to
be charged to members of the public or other users of CRC Spaces, the amount of which
fees Lender may determine in its sole discretion;and(iii)the address to which all such fees
collected by Borrower, Developer, or the Parking Manager shall be remitted. After receipt
of such a notice, Borrower or Developer shall: (i)collect(or cause the Parking Manager to
collect)such fees from members of the public or other users of CRC Spaces;(ii)on a weekly
basis, remit(or cause the Parking Manager to remit) to the address set forth in such notice
the full amount of all fees collected from members of the public or other users of CRC
Spaces, without any credit, deduction, or offset of any nature; (iii) maintain (or cause the
Parking Manger to maintain)complete and accurate books and records of all fees collected
from members of the public or other users of CRC Spaces; and (iv) upon receipt of
reasonable advance notice from Lender,make(or cause the Parking Managerto make)such
books and records available to Lender at a convenient location for auditing, inspection, and
copying. Each of Borrower and Developer shall comply(or cause the Parking Manager to
comply)with its obligations under this Subsection, notwithstanding any breach or default by
CRC hereunder or under the Access Declaration, the Project Agreement, or any other
agreement to which CRC is a party or by which CRC is bound. Notwithstanding the
assignment to Lender of the CRC Spaces Rights, Lender: (i) has not (and shall not be
deemed to have)assumed or undertaken responsibility for; and (ii) is not(and shall not be
deemed to be)liable or responsible for,performance or satisfaction of any obligation of CRC
hereunder or under the Access Declaration,the Project Agreement,or any other agreement
to which CRC is a party or by which CRC is bound. All fees that are:(i)charged to members
of the public or other users of CRC Spaces; and (ii) remitted to Lender in accordance with
the terms and conditions of this Section; shall be applied to (credited against) the
Acceleration Payment or the Loan Purchase Price. When the Acceleration Payment, the
Loan Purchase Price, or the Outstanding Principal Balance,as applicable, has been paid in
full, then this assignment shall terminate automatically without Lender taking any action or
executing any instrument.
(d) Lender Protections.
(i) CRC shall provide a Contract Default Notice to Lender
simultaneously with any notice delivered to Borrower or Developer.
(ii) if there is a default by Borrower or Developer under the Project
Agreement or the Installment Contract,then:(A)Lender shall have the right
to cure the such default until the expiration of the Lender Cure Period; and
(B)CRC shall accept a cure by Lender as a cure by Borrower or Developer.
Notwithstanding the foregoing,no term or condition of this Agreement shall
be deemed to: (A) require Lender to satisfy any obligation of Borrower or
Developer under the Project Agreement or the Installment Contract,or cure
any breach by Borrower or Developer of its obligations under the Project
Agreement or the Installment Contract;or(B)otherwise make Lender liable
for any such breach.
(iii) Unless and until CRC pays either the Purchase Price or the Full
Prepayment Price (as each is defined in the Installment Contract), no
amendment, modification, supplement, surrender, cancellation, or
termination of the Installment Contract shall be effective, unless Lender
consents in writing to such amendment, modification, supplement,
surrender, cancellation, or termination. Any attempted amendment,
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modification, supplement, surrender, cancellation, or termination of the
Installment Contract without the consent of Lender shall be void and
unenforceable, and shall have no force or effect.
8. Prepayments. If CRC makes a Prepayment, then: (a) Developer shall pay the amount of such
Prepayment to Lender for application against the Outstanding Principal Balance; and (b)Lender shall apply
the amount of such Prepayment against the Outstanding Principal Balance.
9. Representations.
(a) No Modification. Each of Borrower,Developer,and CRC represents that:(i)the copy
attached hereto as Exhibit A is a true,correct,and complete copy of the Installment Contract;
and(ii)the Installment Contract:(A)is in full force and effect on the date hereof;and(B)has
not been modified, amended, revised, supplemented, restated, or replaced in any respect,
except as set forth on Exhibit B.
(b) No Default.
(i) Each of Developer and CRC represents that: (A) there are no
Developer Contract Defaults; (B)there are no"Events of Default" by CRC
under the Project Agreement; and (C) to its knowledge, no event has
occurred,and no condition exists,that,with the giving of notice or the lapse
of time or both, will constitute: (1) a Developer Contract Default; or(2) an
"Event of Default" by CRC under the Project Agreement.
(ii) Each of Borrower, Developer, and CRC represents that: (A)there
are no defaults by CRC under the Installment Contract; and (B) to its
knowledge, no event has occurred, and no condition exists, that, with the
giving of notice or the lapse of time or both, will constitute an "Event of
Default" by CRC under the Installment Contract.
(iii) Each of Borrower, Developer, and CRC represents that the
installment Contract it has no: (A) existing defenses, offsets, or credits
against: (1)the enforcement of the Installment Contract by any other party;
or(2) the payment of any amounts due under the installment Contract; or
(B) right exercisable at this time to cancel or terminate the Installment
Contract.
(c) Enforceability.
(i) Borrower represents that, upon execution and delivery of the Loan
Documents and the Installment Contract, the Loan Documents and the
Installment Contract shall:(A)constitute a legal,valid,and binding obligation
of Borrower; and (B) be enforceable in accordance with their terms and
conditions, except as the same may be limited by bankruptcy, insolvency,
or similar laws generally affecting the enforcement of creditors' rights.
(ii) Developer represents that,upon execution and delivery of the Loan
Documents to which it is a party and the Installment Contract, the Loan
Documents to which it is a party and the Installment Contract shall:
(A)constitute a legal,valid,and binding obligation of Developer;and(B)be
enforceable in accordance with their terms and conditions, except as the
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same may be limited by bankruptcy, insolvency, or similar laws generally
affecting the enforcement of creditors' rights.
(d) No Bankruptcy. Each of Borrower, Developer,and CRC represents that no actions,
whether voluntary or otherwise, are pending against it(and no petition has been filed by or
on behalf to it)or any of its general partners,members,or controlling shareholders under the
bankruptcy or insolvency laws of the United States or any state thereof.
(e) Authorization. Developer has taken the necessary actions to authorize the execution
and delivery of this Agreement, all other Loan Documents to which it is a party, and the
Installment Contract,and no term or condition of this Agreement,any other Loan Document
to which it is a party, or the Installment Contract contravenes, or is in conflict with, the
organizational documents or any resolutions of Developer.
(f) No Conflict. None of the execution and delivery of, consummation of the
transactions and borrowing contemplated in,or compliance with the terms and conditions of,
this Agreement,any other Loan Document,or the Installment Contract shall conflict with,or
constitute a material default under or a violation of: (i)any of the terms or conditions of any
contract or other instrument: (A) to which Developer is, or will be, a party; (B) by which
Developer, or any asset of Developer, is or may be bound; or (C) to which Developer is
subject; of(ii)any Law.
(g) No Adverse Effect. Developer is not a party to, or bound by, any contract or other
instrument that materially and adversely affects, or will affect, the business, operations, or
financial condition of Developer. Developer is not in default in the performance,observance,
or fulfillment of any of the terms or conditions of any contract or other instrument to which it
is a party, or by which it is bound, the result of which default would adversely affect: (I)the
business, operations, or financial condition of Developer; or(ii) the ability of Developer to
perform its obligations under this Agreement, any other Loan Document, or the Installment
Contract.
(h) Filings. No filing or registration with any Agency is necessary in connection with:
(1)the execution and delivery by Developer of this Agreement and the other Loan Documents
to which it is a party; (ii) the performance by Developer of its obligations under this
Agreement or the other Loan Documents; or (iii) the construction of the Garage in
accordance with the Installment Contract, other than to obtain normal construction and
occupancy approvals and permits.
(I) Developer Collateral.
(A) Until a Transfer as permitted by Section 11, Developer is, and shall
continue to be,the lawful owner of the Developer Collateral,with full right to
pledge, assign, and grant security interests in the Developer Collateral for
the purpose of securing the Loan.
(B) Developer owns the Developer Collateral,free and clear of all liens,
claims,security interests,encumbrances,and restrictions,except for:(1)the
security interests granted to Lender; and (2) the Installment Contract.
(C) Developer at all times shall keep the Developer Collateral free from
any and all liens,claims,security interests,encumbrances,and restrictions,
except for (1) the security interests granted to Lender; and (2) the
Installment Contract.
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(0) Except as approved by Lender,there shall be no Transfer;provided
that the foregoing shall not prohibit (or require the approval of Lender in
connection with)a Transfer in accordance with the terms and conditions of
Section 11, The inclusion of the Proceeds in the security interest granted
to Lender shall not be deemed to be a consent by Lender to any Transfer.
(E) Developer shall defend the Developer Collateral against the claims
and demands of others.
(F) No financing statement covering all or any portion of the Developer
Collateral is on file in any public office,except financing statements that are
in favor of Lender.
•
10, Developer Obligations.
(a) Construction. Developer shall: (i)acquire the materials to construct,and construct,
the Garage in accordance with the Installment Contract; and (ii)sell the Garage to CRC in
accordance with the Installment Contract.
(b) Laws. Developer shall comply with all Laws in the: (i) conduct of its business and
other operations; and (ii)performance of its obligations under the Installment Contract, this
Agreement, and the other Loan Documents.
(c) Filings. Developer shall keep in full force and effect,without any material 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 Installment Contract,this
Agreement, or the other Loan Documents; (ii)the acquisition of the materials to construct,
and/or the construction of,the Garage in accordance with the Installment Contract;or(iii)the
sale of the Garage to CRC in accordance with the Installment Contract.
(d) Adverse Effect. 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 construction of,the Garage in accordance with the installment Contract;
and/or(iii)the sale of the Garage to CRC in accordance with the Installment Contract; then
Developer shall: (i)notify Lender promptly in writing;(ii)prepare and submit to Lender 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 Lender.
(e) Lock Box Account. Developer shall establish and maintain the Lock Box Account
in accordance with the Collateral Assignment.
(f) Representations. Developer shall take all actions necessary to maintain the truth
and accuracy in all material respects of all representations and warranties made by
Developer in this Agreement or in any other Loan Document.
(g) Transfer. Except as approved by Lender:(i)there shall be no Transfer by Developer;
and (ii) Developer shall not cause or permit any Transfer; provided that the foregoing shall
not prohibit(or require the approval of Lender in connection with) a Transfer in accordance
with the terms and conditions of Section 11. The inclusion of the Proceeds in the security
interest granted to Lender shall not be deemed to be a consent by Lender to any Transfer.
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(h) Financing Statements. Developer shall not:(i)file any financing statement covering
all or any portion of the Developer Collateral in any public office,except financing statements
in favor of Lender; or(ii)cause or permit any such financing statement to be filed.
(i) Entity. Developer shall: (i) not merge into, or consolidate with, any other entity, or
otherwise reorganize, until such time as there has been a Transfer as permitted in
Section 11; (ii) be dissolved, wound up, or converted to another type of entity, or have its
existence as a limited liability company terminated, until such time as there has been a
Transfer as permitted in Section 11; (iii) amend or modify (or permit the amendment or
modification of): (A) the Garage Construction Contract, except in accordance with the
Installment Contract; or (B) the Installment Contract, without the prior written consent of
Lender; or(iv)file,except as required by the Laws, a consolidated tax return with any other
party.
11. Transfer. Notwithstanding the prohibition against Transfers without the consent of Lender and/or
CRC (including any such prohibition in Section 12), there may be a Transfer without the consent of Lender
and/or CRC at any time after the Developer Garage Put Trigger Date, so long as such Transfer occurs in
connection with the sale of the Garage to a party that assumes the obligations of Developer under the Loan
Documents.
12. Assignment. No party shall assign this Agreement,or its rights or obligations hereunder,without the
prior written consent of each of the other parties; provided that: (a) without the prior written consent of
Borrower or Lender, CRC may assign this Agreement and the Installment Contract to another agency or
instrumentality of the City of Carmel, Indiana, of equal or superior creditworthiness and financial capacity to
perform the obligations of CRC hereunder, as established to the reasonable satisfaction of Lender; and
•
(b)without the prior written consent of Borrower or CRC,Lender may assign this Agreement to any successor
to which all of the Loan Interests are assigned, so long as the assignment is subject to the terms and
conditions of this Agreement and the rights of CRC hereunder. Notwithstanding any assignment permitted
under this Section:(a)each party shall remain liable to perform all of the terms and conditions to be performed
by it under this Agreement; and (b)the consent of the other parties with respect to an assignment shall not
release the assigning party from such performance.
13. Deliveries. Each party shall execute and deliver such additional documents and instruments as
reasonably may be reasonably required by the other parties to accomplish the purposes of this Agreement.
14. Indemnity. Each of Lender, Borrower, Developer,and CRC shall indemnify and hold harmless the
other parties from and against any and all Claims arising from, or in connection with the breach by Lender,
Borrower, Developer,or CRC,respectively,of any term or condition of this Agreement. CRC shall indemnify
and hold harmless Borrower and Developer from and against any and all Claims arising from or in connection
with a CRC Monetary Default or CRC Non-Monetary Default.
15. Notice. Any notice required or permitted to be given by either party to this Agreement 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 Lender at One Indiana Square, Suite 227, Indianapolis,
Indiana 46204,Facsimile:317-221-6111,Attention: ;to each of Borrower and Developer
at 47 South Pennsylvania Street,10°i Floor,Indianapolis,Indiana 46204,Facsimile:317-635-1100,Attn:Ersal
Ozdemir and Joseph Pieters, Esq, with a copy to: Donald E. Williams, Esq., Barnes & Thornburg LLP,
11 South Meridian Street, Indianapolis, Indiana 46204, Facsimile: 317-231-7433; and to CRC at City of
Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Facsimile: 317-844-3498, Attn: Les Olds,with
a copy to: Karl P. Haas, Esq., Wailack Somers & Haas, PC, One Indiana Square, Suite 1500, Indianapolis,
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Indiana 46204, Facsimile: 317-231-9900. Any party may change its address for notice from time to time by
delivering notice to the other parties as provided above.
16. Authority. Each undersigned person executing this Agreement on behalf of Lender, Borrower,
Developer, and CRC represents and certifies that: (a) he or she is empowered, and has been authorized by
all necessary action of Lender, Borrower, Developer, and CRC, respectively, to execute and deliver this
Agreement; (b) he or she has full capacity, power,and authority to enter into and carry out this Agreement;
and (c) the execution, delivery, and performance of this Agreement have been authorized by Lender,
Borrower, Developer, and CRC, respectively.
17. Severability. If any one or more of the terms or conditions of this Agreement is determined to be
invalid, then: (a) such invalidity shall not affect any other term or condition of this Agreement; and (b) this
Agreement shall be construed as if such invalid term or condition had never existed. The invalidity of any term
or condition of this Agreement in any jurisdiction shall not affect the validity of such term or condition in any
other jurisdiction.
18. Applicable Law. The validity,construction,interpretation,and enforcement of this Agreement shall
be governed by, and construed in accordance with, the laws of the State of Indiana, without regard to
principles of conflicts of law. All actions or proceedings arising in connection with this Agreement shall be tried
and litigated only in the state courts located in Hamilton County,Indiana, or the federal courts with venue that
includes Hamilton County, Indiana. The parties waive, to the extent permitted under applicable law: (a)the
right to a trial by jury;and(b)any right to assert the doctrine of"forum non conveniens"or to object to venue;
in either case to the extent any proceeding is brought in accordance with this Section.
19. Miscellaneous. Subject to the terms and conditions of Section 12,this Agreement shall inure to the
benefit of, and be binding upon, each of Lender, Borrower, Developer, and CRC, and their respective
successors and assigns. If there is a conflict between the terms or conditions of this Agreement and any of
the other Loan Documents,then the terms and conditions of this Agreement shall control. The captions used
in this Agreement are for convenience only and are not to be construed as defining or limiting the terms and
conditions of this Agreement. This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof,and may be modified,amended,or revised only by a written agreement
signed by each of the parties. This Agreement may be executed in counterparts, each of which shall be an
original, but all of which,when taken together, shall constitute the same agreement. All Exhibits referenced
in this Agreement are attached hereto and incorporated herein by reference.
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IN WITNESS WHEREOF, Lender, Borrower, Developer, and CRC have executed this
Agreement as of the date set forth above.
REGIONS BANK
By:
Printed:
Title:
• CARMEL LOFTS GARAGE, LLC
By: Keystone Group, LLC., Sole Member
By:
Ersal Ozdemir, Sole Member
CARMEL LOFTS LLC
By: Keystone Group, LLC., Sole Member
By:
Ersal Ozdemir, Sole Member
THE CITY OF CARMEL REDEVELOPMENT
COMMISSION
By:
Ronald E. Carter, President
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INDEX TO EXHIBITS
• Exhibit A tnstaliment Contract
Exhibit B Modifications,changes,alterations,assignments,supplements,and/or amendments
of/to the Installment Contract
Exhibit C Description/depiction of Site
•
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