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HomeMy WebLinkAboutCollateral Assignment, Lock Box, And Security Agreement/Village Financial; Mercantile Bank; CRC - PAC Equipment - $7,515,800COLLATERAL ASSIGNMENT, LOCK BOX, AND SECURITY AGREEMENT PAC Equipment This Collateral Ass pFent, Lock Box, and Security Agreement (Equipment) (the "Agreement "), is executed as of theday of August, 2009, by and among Village Financial, LLC, having its principal office at 770 3`d Avenue Southwest, Carmel, Indiana 46032 (the "Assignor "), Mercantile Bank, having its principal office at 12821 East New Market Street, Suite 301, Carmel, Indiana 46032 (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. Administrative Payment shall have the meaning set forth in the Installment Contract. 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). Collateral shall mean Assignor's interest in: (a) the Installment Contract; (b) the Contract Payments; (c) the Borrower Loan Account; (d) the Borrower Loan Deposits; (e) the Lock Box Account; (f) the Lock Box Deposits; (g) the Equipment; and (h) the Proceeds. 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 Assignor to Assignee pursuant to the Note. Equipment shall mean an estimated $7,515,800.00 of equipment for use in the operation of the PAC (including, without limitation, orchestra risers), which equipment shall be acquired by Assignor pursuant to the Installment Contract. The Equipment is the "Equipment" under the Installment Contract. 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: (a) the actual, out -of- pocket costs incurred by Assignor to acquire the Equipment in accordance with the terms and conditions of the Installment Contract; or (b) Lender Fees. Indebtedness shall have the meaning set forth in Section 3. Installment Contract shall mean that certain PAC Equipment Installment Purchase Contract of even date herewith executed by and between Assignor and CRC, 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 mean regular (non - default) lender fees, costs, and expenses due and payable by Assignor to Assignee pursuant to the Loan Documents, including, without limitation, costs and expenses: (a) to close the Loan; and (b) that, under the terms and conditions of this Agreement or the Loan Agreement, expressly constitute Lender Fees. Loan shall mean a loan from Assignee to Assignor made in accordance with the terms and conditions of the Loan Documents, which loan shall be in the original principal amount of $7,515,800.00. Loan Agreement shall mean that certain Loan Agreement (PAC Equipment) of even date herewith executed by and between Assignor 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 Assignor 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 of even date herewith by and between CRC and Assignee. Note shall mean that certain Promissory Note (PAC Equipment) of even date herewith executed by Assignor in favor of Assignee and evidencing the Loan. 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, the Lock Box Deposits, and /or the Equipment. Projection Notice shall have the meaning set forth in the Installment Contract. Tri -Party Agreement shall mean that certain Tri -Party Agreement (PAC Equipment) of even date herewith executed by and among Assignor, 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, Assignor hereby: (a) assigns the Collateral to Assignee; and (b) grants to Assignee a security interest in the Collateral. 3. Indebtedness. This Agreement is given to secure the following (collectively, the "Indebtedness "): (a) performance by Assignor 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 Assignor 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 Assignor 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 -Party Agreement. Assignor hereby acknowledges and agrees 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. Assignor agrees 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. Assignor shall pay (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 or Assignor shall pay any other amounts due to Assignee pursuant to the Loan Documents into the Lock Box Account. (c) Interest. Notwithstanding the provisions in the Installment Contract with respect to the determination of the amount of the Installment Payments, the amount set forth in each Projection Notice for the Administrative Payment due for the quarter with respect to which such Projection Notice applies (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 any Account Interest in the Lock Box Account on the date that CRC pays the Installment Payment. (d) 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 and to the extent that amounts remain in the Lock Box Account after such withdrawal, Assignee shall withdraw from the Lock Box Account, and disburse to Assignor, the amount of the Administrative Payment to which Assignor is entitled pursuant to the Installment Contract; provided that, if the funds in the Lock Box Account are less than the amount of the Administrative Payment to which Assignor is entitled, then: (i) Assignee shall have no responsibility for funding the amount of the shortfall; and (ii) any such shortfall shall be addressed by and between CRC and Assignor. 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. Assignor represents and warrants to Assignee that: (a) Assignor: (i) is the sole owner of the Collateral; and (ii) has not sold, transferred, assigned, or conveyed all or any part of the Collateral; (b) the Collateral is free and clear of all liens, pledges, security interests, and encumbrances of any nature; (c) Assignor has full right and power to enter into and take the actions contemplated by this Agreement; (d) all necessary action has been taken to effect: (i) the assignment of the Collateral to Assignee; and (ii) the grant to Assignee of a security interest in the Collateral; (e) this Agreement is effective to assign the Collateral to Assignee, and grant to Assignee a security interest in the Collateral, without contravention of the terms and conditions of the Installment Contract, the Loan Documents, or the Tri -Party Agreement; and (f) there are no outstanding subscriptions, options, warrants, commitments, or agreements with respect to the Collateral, except for agreements to which Assignor 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. Assignor waives demand, presentment for payment, notice of protest, and notice of nonpayment or dishonor of the Note and /or the other Indebtedness. (b) Performance. Assignor 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. Assignor shall: (i) remain the sole owner of the Collateral; accordingly, Assignor shall not sell, transfer, convey, or assign all or any part of the Collateral or any interest therein; (ii) keep the Collateral free and clear of all liens, pledges, security interests, and encumbrances of any nature; (iii) not issue, grant, or agree to any subscriptions, options, warrants, commitments, or agreements with respect to the Collateral; and (iv) take all necessary action to keep this Agreement, the Installment Contract, the Loan Documents, the Tri -Party Agreement, and the security interest in the Collateral in full force and effect. 9. Preservation. If: (a) Assignor fails to: (i) make any payment under the Loan Documents, the Tri -Party Agreement, or the Installment Contract when due; or (ii) timely observe or perform any 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 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 Assignor 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) Assignor or CRC fails to pay any amount due hereunder on the date due; provided that, 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; (b) Assignor 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 Assignor 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 Assignor 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 Assignor 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 Assignor 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 Assignor such that Assignor no longer is controlled by, or under common control with, a G\YY Lb 3 (bVtk(C LCr t,ctuj , ; v I!�G ,1c, (g) there is a change in any Law that: (i) causes the transactions contemplated by the Installment Contract, the Loan Documents, and /or the Tri -Party Agreement to be unlawful; or (ii) subjects Assignee to material adverse financial consequences; (h) there is a liquidation, sale, conveyance, transfer, encumbrance, pledge, or assignment of substantial assets of Assignor out of the ordinary course of business; (i) Assignor: (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 Assignor, 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 Assignor, is placed in the hands of any receiver, trustee, or other officer or representative of any court, or Assignor consents, agrees, or acquiesces to the appointment of any such receiver, trustee, or other officer or representative; (I) Assignor's interest in the 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) 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; and /or (n) 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) at 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 Assignor; (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 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 Assignor; 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) Assignor 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 Collateral; 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 Collateral, 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 Assignor 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 Collateral; and (b) Assignor expressly waives all right to have the Collateral 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. Assignor promptly shall: (a) notify Assignee in writing of the commencement, or threat of commencement, of any proceeding affecting the interest of Assignor 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 Assignor and Assignee affected by such proceeding. Assignor 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 200 North 33rd Street, Quincy, Illinois 62301, Facsimile: 3 ►1- 679 - 916 I , Attn: J.D. Reindhardt; to Assignor at 770 3rd Avenue Southwest, Carmel, Indiana 46032, Facsimile: 317 - 587 -0340, Attn: Bruce Cordingley; 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 Assignor, Assignee, and CRC represents and certifies that: (a) he or she is empowered, and has been authorized by all necessary action of Assignor, 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 Assignor, 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) Assignor and its administrators, successors and assigns, and all parties claiming under or through Assignor; and (ii) Assignee and its successors and assigns. The term: (a) "Assignor" shall include all administrators, successors, and assigns of Village Financial, LLC; and (b) "Assignee" shall include the successors and assigns of Mercantile 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 the 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 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, Assignor has executed this Collateral Assignment, Lock Box, and Security Agreement (PAC Equipment) as of the date set forth above. VILLAGE FINANCIAL, LLC By: dQb4 7 -26 Printed: Title: STATE OF INDIANA SS: COUNTY OFM LO ) DOLORES M. KROHN_ SENIOR VICE PRESID -NT B fore me, a Notary Public in and for the State of Indiana, personally appeared ask D P5 iit hne, the'je,(Uor'J ..t PreNcler,E of Village Financial, LLC, who executed the foregoing Collateral Assignment, Lock Box, and Security Agreement (PAC Equipment) for and on behalf of such entity. Witness my hand and Notarial Seal this day of August, 2009. Notary Public-Stated Indiana Johnson County My Commission EcifeEC January 6, 2012 I am a resident of County, My commission expires: By Notary LieUrkitt ublic Printed Name: rnQ( r EX r IN WITNESS WHEREOF, Assignee has executed this Collateral Assignment, Lock Box, and Security Agreement (PAC Equipment) as of the date set forth above. MERCANTILE BANK STATE OF INDIANA SS: COUNTY OF r ) David Weber, Vice resident Before me, a Notary Public in and for the State of Indiana, personally appeared David Weber, the Vice President of Mercantile Bank, who executed the foregoing Collateral Assignment, Lock Box, and Security Agreement (PAC Equipment) for and on behalf of such entity. Witness my hand and Notarial Seal this 13 day of August, 2009. Notary public - State at Indiana Johnson County RNy Commission ExPires jowly 8, 21712 I am a resident of: County, My commission expires: Nota !Puublic ' n Printed Name:�(�1 1 te8en (A'kI er- IN WITNESS WHEREOF, CRC has executed this Collateral Assignment, Lock Box, and Security Agreement (PAC Equipment) as of the date set forth above. STATE OF INDIANA COUNTY OF SS: THE CITY OF CARMEL RED VELOPMENT COMMISSION Bv: Ronald E. Carter, President 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 (PAC Equipment) for and on behalf of such entity. Witness my hand and Notarial Seal this13 Notary Pupnc - State of Indiana Johnson County My Commission Expires: January 6, 2D12 I am a resident of County, My commission expires: Return following recording to: day of August 2009. By. Notary Printed Name: ublic 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. INDEX TO EXHIBITS EXHIBIT A Copy of Installment Contract