Energy Center Agreement 2010/CRC/Community Facility Partners 11200
INSTALLMENT PURCHASE AGREEMENT
• This Installment Purchase Agreement(the"Agreement"),executed as of November 1,2010,
by and between The City of Carmel Redevelopment Commission, a redevelopment commission organized
and existing under the laws of the State of Indiana, for and on behalf of the Redevelopment District("CRC"), •
and CFP Carmel, Indiana Energy Center, LLC, a limited liability company organized and existing under the
laws of the State of Indiana (the "Company"), Witnesses:
Recitals
WHEREAS, CRC is a redevelopment commission organized and existing under the laws of
the State of Indiana and, in IC §36-7-14-2, the State of Indiana has declared that the purposes of a
redevelopment commission include "[t]he clearance, replanning, and redevelopment of areas needing
redevelopment...";
WHEREAS, the Company is an Indiana limited liability company whose sole member is
Community Facilities Partners, a Minnesota non-profit corporation with charitable purposes that include the
acquisition, construction, development, ownership, improvement, operation, management, lease, sale.
conveyance,mortgage,encumbrance,financing,and refinancing of multi-purpose sports facilities,educational
facilities, administrative facilities, and community public facilities to be used by and for the benefit of
governmental entities,schools and school districts,colleges and universities,and other tax-exempt 501(c)(3)
organizations;
WHEREAS,the Project,as defined in Article 1, is a community facility to be used by and for
the benefit of governmental entities, schools and school districts, colleges and universities, and other tax-
exempt 501(c)(3)organizations;
WHEREAS,pursuant to IC 36-7-14-12.2(a)(1), CRC, as a redevelopment commission, has
the authority to acquire by purchase, exchange, gift, grant, condemnation, or lease,or any combination of
methods, any personal property or Interest In real property needed for the redevelopment of areas needing
redevelopment that are located within the corporate boundaries of the unit;
WHEREAS, the Project constitutes a combination of personal and real property that both:
(a) is part of a redevelopment project within the corporate boundaries of the unit; and (b) needed for
redevelopment of areas needing redevelopment that are located within the corporate boundaries of the unit;
WHEREAS, CRC has determined that it is necessary to acquire the Project for use as a
community facility;
WHEREAS,the Company proposes to aid and assist CRC,additional governmental entities,
and other tax-exempt 501(c)(3)organizations by:(a)providing financing for the acquisition,construction,and
equipping of certain community public and/or administrative facilities, including,without limitation,financing
for the Extension and Retrofitting Work in accordance with the Extension and Retrofitting Work Contract and
Project Agreement; and (b)selling the Project to CRC on an installment contract basis; and
WHEREAS CRC and the Company desire to enter into this Agreement;
Agreement
NOW,THEREFORE,forgood and valuable consideration,the receipt and sufficiency of which
are acknowledged hereby, CRC and the Company agree as follows:
ARTICLE I - DEFINITIONS
4CDC shall mean Carmel City Center Community Development Corporation,an Indiana non-profit corporation
created for the purpose of facilitating, among other things, completion of the Concert Hall.
Acquisition Fund shall mean the fund by that name established pursuant to the Trust Agreement.
Act shall mean Indiana Code §36-7-14. as supplemented and amended from time to time.
Allocation Funds shall mean the allocation funds for the Designated Areas.
Assignment Agreement shall mean the Assignment Agreement dated as of November 1, 2010, by and
between the Company and the Trustee,as amended and supplemented from time to time.
Balance shall mean,on any date,the sum of:(a)the portion of the Installment Payments specified in ExhibitA
as the"Amount Attributable to Principal",which portion has not been paid as of such date; plus(b)the unpaid
interest that has accrued on such portion to such date.
Bonds shall mean all bonds, notes, or similar obligations(but not including Contracts) of CRC, the principal
of, and interest on, which are payable from Tax Increment.
Builder's Risk Insurance shall mean builder's risk insurance with respect to the Extension and Retrofitting
Work, the policy of which shall: (a)be issued by a reputable insurance company; and (b) provide coverage
in such amounts as are customary, and against such risks (including damage to, or destruction of, the
Extension and Retrofitting Work)as customarily are covered, in connection with builder's risk insurance for
the construction and/or installation of projects similar to the Extension and Retrofitting Work.
Business Day shall mean a day that is not (a) a Saturday, Sunday, or legal holiday on which banking
institutions in:(I)the State of Indiana;or(ii)the city in which the office of the Trustee is located;are authorized
to remain closed; or(b) a day on which the New York Stock Exchange is closed.
Casualty Insurance shall mean casualty insurance with respect to the Project,the policy of which shall:(a)be
issued by a reputable insurance company; and (b)provide coverage In such amounts as are customary, and
against such risks (including damage to, or destruction of, the Project) as customarily are covered, in
connection with casualty insurance for projects similar to the Project.
Certificate Owner shall have the meaning set forth in the Trust Agreement.
Certificates shall mean the City of Carmel, Indiana, Redevelopment District Certificates of Participation,
Series 2010C, executed and delivered by the Trustee pursuant to the Trust Agreement.
CFP shall mean Community Facilities Partners.
City shall mean the City of Carmel, Indiana.
City Hall Building shall mean the building located at One Civic Square in the City,which building houses the
City's government offices.
Claims shall mean all claims,advances,damages,losses,costs,and expenses(including,without limitation,
reasonable attorneys'fees).
Code shall have the meaning set forth in the Trust Agreement.
Concert Hall shall mean that certain concert hall currently under construction on the real estate delineated
on the Parcel 7 Site Plan as`Parcel 7a'.
Contract Payment Coverage Ratio shall mean, for a given 12-month period, the ratio of: (a) the Tax
Increment accrued (regardless of whether received)for such 12-month period;to(b)the Contract Payment
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Service for such 12-month period.
Contract Payment Service shall mean, with respect to a given period, the sum of: (a) all Installment
Payments for such period; plus(b)all amounts payable under any Bonds or Contracts (excluding any Bonds
or Contracts,the payments with respect to which are subordinate to the Installment Payments)for such period.
Contracts shall mean all contracts of CRC,payments underwhich are payable from Tax Increment,excluding
this Agreement and any contracts entered into for operation and maintenance of the Project or the continued
operations of CRC.
CPCR Deficiency Period shall mean the period: (a) beginning immediately after the last day of any fiscal
quarter, on which last day the Contract Payment Coverage Ratio for the immediately previous 12 months is
less than 1.25 to 1.0; and (b) ending on the last day of any fiscal quarter, on which last day the Contract
Payment Coverage Ratio for each 12-month period ending on each of the six immediately preceding fiscal
quarters is not less than 1.25 to 1.0.
Designated Areas shall mean: (a) the City Center Redevelopment Area (91604 and 91604E); (b) the
126th Street Corridor Economic Development Area (91603 and 91603E); (c) the Old Town Economic
Development Area(91610);(d)the Carmel Drive Economic DevelopmentArea(91616);(e)the Lauth-Walker
Economic Development Area (91617); (f) the Old Town Shoppes Economic Development Area (91618);
(g) the Old Methodist Economic Development Area (91620); (h) the Lurie Economic Development Area
(91621); (i) the National City Economic Development Area (91627); (j) the Village of West Clay Economic
Development Area (91629); (k) the Old Meridian Expansion Economic Development Area (91609 and
91609E); (I) the Illinois Street Economic Development Area and Expansion Areas (91608, 91608E, and
91625); (m) the Hazel Dell North Economic Development Area (91612); and (n) the Hazel Dell South
Economic Development Area (91611); as amended from time to time.
Energy Center shall mean a central facility located on the Energy Center Site where heated and chilled water
are received, processed, and distributed to and through the Served Properties. The Energy Center is
comprised of the Structure, the Tunnel, the Equipment, and the Lines.
Energy Center Site shall mean,collectively:(a)that certain real estate delineated as the'Energy Center Site
on the Parcel 7c Site Plan; together with (b) that certain real estate through which the Tunnel runs, as
delineated on the Parcel 7 Site Plan as the "Tunnel".
Energy Consumption Agreements shall mean agreements entered into from time to time by 4CDC or the
operator under the Operating Agreement and a consumer of heated and chilled water.
Equipment shall mean equipment, fixtures, and facilities for the reception, processing, and distribution of
heated and chilled water for,to,and/or through the Served Properties,regardless of whether such equipment,
fixtures, and facilities are located in the Structure or in a Served Property. The Equipment does not include
the Tunnel or the Lines.
Event of Default shall have the meaning set forth in Section 8.1.
Excess Cash Fund shall mean the fund by that name established pursuant to the Trust Agreement.
Extension and Retrofitting Work shall mean the continuing obligations with respect to:(a)the extension of
Lines to the City Hall Building,the Police Station, and the Fire Station; and (b)the retrofitting of the City Hall
Building,the Police Station,and the Fire Station,in connection with the extension of such Lines;as generally
described on Exhibit C.
Extension and Retrofitting Work Contract and Project Agreement shall mean that certain agreement of
even date herewith executed by and among CRC,the Company, and 4CDC, pursuant to which agreement
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4CDC shall perform the Extension and Retrofitting Work.
Fire Station shall mean the building located at Two Civic Square in the City,which building houses station 41
of the Carmel Fire Department.
Installment Payment Date shall mean the preceding Business Day of each date specified on Exhibit A.
Installment Payments shall mean the installment payments specified on Exhibit A,as adjusted in accordance
with Section 5.2 of the Trust Agreement, which shall be paid by CRC pursuant to this Agreement and
Exhibit A.
Law shall mean any applicable federal,state, or local law,statute,ordinance, rule,or regulation,or any order
or decree of any: (a) governmental agency, board, commission, or department: or (b) other judicial,
administrative, or regulatory body.
Lines shall mean lines through which is carried heated and chilled waterto and from the Served Properties
from and to the Structure. The Lines are not part of the Equipment.
Mortgage shall mean that certain Mortgage,Assignment of Rents,Security Agreement and Fixture Filing of
even date herewith executed by the Company in favor of the Trustee.
Net Proceeds shall mean, with respect to the Builder's Risk Insurance, the Casualty Insurance, or any
condemnation award, the proceeds remaining after payment of all expenses (including, without limitation,
attorneys fees)incurred in the collection of such proceeds.
Office Building shall mean the office building currently under construction on the real estate delineated on
the Parcel 7 Site Plan as the `Office Building Real Estate".
Operating Agreement shall mean that certain Operating Agreementwith of even date herewith by and among
CRC,the Company,and the City of Carmel Utilities Department,which Operating Agreement provides for the
operation and maintenance of the Project.
Outstanding shall have the meaning set forth in the Trust Agreement.
Parcel 7 Site Plan shall mean the site plan attached hereto as Exhibit B.
Parcel 7c shall mean that certain real estate delineated on the Parcel 7 Site Plan as`Parcel 7c".
Permitted Investments shall have the meaning set forth in the Trust Agreement.
Police Station shall mean the building located at Two Civic Square in the City, which building houses the
Carmel Police Department.
Project shall mean the Energy Center Site and the Energy Center.
Purchase Price shall mean the sum of all of the Installment Payments.
Redevelopment District shall mean the special taxing district constituted by all of the territory within the
corporate boundaries of the City, established under Section 3(b)of the Act.
Regulations shall mean the `Treasury Regulations" under the Code.
Reserve Fund shall mean the Reserve Fund"established pursuant to the Trust Agreement.
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Reserve Requirement shall have the meaning set forth in the Trust Agreement.
Served Property shall mean the Theater Building,the Office Building,the Concert Hall,the City Hall Building,
the Police Station, and/or the Fire Station, as applicable. .
• Special Default shall mean that CRC has: (a) pledged any Tax Increment in violation of Subsection 6.2(a);
or (b) issued any Bonds, or entered into any Contracts, the payments under which are superior to the
Installment Paym ents, in violation of Subsection 6.2(b)(i). A Special Default immediately shall constitute an
Event of Default (and no grace period shall apply).
Special Tax Counsel shall have the meaning set forth in the Trust Agreement.
Structure shall mean the structure located on the Energy Center Site,which structure houses a portion of the
Equipment.
Tax Certificate shall have the meaning set forth in the Trust Agreement.
Tax Increment shall mean any property taxes payable with respect to the excess of:(a)the assessed value
of all real property and certain depreciable personal property located within the Designated Areas;over(b)the
assessed valuation described in Section 39(b)(1)of the Act, as such statutory provisions exist on the date of
issuance of the Certificates.
Theater Building shall mean the building currently under construction on the real estate delineated on the
Parcel 7 Site Plan as the `Theater Building Real Estate".
Trust Agreement shall mean the Trust Agreement executed by and between the Company and the Trustee,
dated as of November 1, 2010, as the same may be amended, supplemented, or restated.
Trustee shall mean Wells Fargo Bank,N.A., acting in its capacity as Trustee under and pursuant to the Trust
Agreement, and its successors and assigns.
Tunnel shall mean a tunnel that runs from the Structure to the Concert Hall,though which Lines serving the
Theater Building, the Office Building, and/or the Concert Hall shall run.
ARTICLE II -REPRESENTATIONS AND WARRANTIES
Section 2.1. CRC. CRC makes the following representations:
(a) CRC is a redevelopment commission organized and existing under the laws of the
State of Indiana.
(b) CRC has:(i)full legal right,power,and authority to:(A)enter into this Agreement and
carry out its obligations hereunder;and (B)carry out and consummate all other transactions
contemplated by this Agreement; and (ii) complied with the Laws in all matters relating to
such transactions.
(c) By proper action, CRC has authorized the execution and delivery of, and the
performance of its obligations under,this Agreement.
(d) The execution and delivery of this Agreement by CRC, and the consummation by
CRC of the transactions herein contemplated, do not: (i)violate any: (A) provision of Law;
(B)order of any court or other agency of government by which CRC or any of its properties
or assets is bound;or(C)indenture, material agreement, or other instrument to which CRC
is a party or by which it or any of its properties or assets is bound: (ii)conflict with, result in
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a breach of,or constitute a default under any such indenture,agreement,orotherinstrument;
or(iii) result in the creation or imposition of any prohibited lien,charge, or encumbrance of
any nature upon any of the properties or assets of CRC.
(e) CRC shall not take or, to the extent within its power, permit to be taken,any action
that results in the interest paid for the installment purchase of the Project under the terms
of this Agreement being included in the gross income of the Certificate Owners or their
assigns for purposes of federal or State of Indiana income taxation.
(f) CRC has determined that it is necessary and proper that CRC purchase the Project
in the manner provided for in this Agreement.
(g) CRC has not pledged, encumbered, or granted any lien on, or security interest in,
any Tax Increment, except for CRC's taxable Tax Increment Revenue Bonds of 2008.
Section 2.2. The Company. The Company makes the following representations and warranties:
(a) The Company is a limited liability company organized and existing under the laws
of the State of Indiana,whose sole member is CFP, a Minnesota non-profit corporation and
tax-exempt charitable organization under Section 501(c)(3)of the Code.
(b) The Company has: (i) full legal right, power, and authority to: (A) enter into this
Agreement and carry out its obligations hereunder; and (B) carry out and consummate all
other transactions contemplated by this Agreement; and (ii) complied with the Laws in all
matters relating to such transactions.
(c) By proper action,the Company has authorized the execution and delivery of,and the
performance of its obligations under, this Agreement.
(d) The execution and delivery of this Agreement by the Company, and the
consummation by the Company of the transactions herein contemplated, do not: (i)violate
any: (A)provision of Law; (B)order of any court or other agency of government by which the
Company or any of its properties or assets is bound; or(C) indenture, material agreement,
or other instrument to which the Company is a party or by which it or any of its properties or
assets is bound; (ii)conflict with, result in a breach of, or constitute a default under any such
indenture, agreement, or other instrument; or(iii) result in the creation or imposition of any
prohibited lien, charge, or encumbrance of any nature upon any of the properties or assets
of the Company.
(e) The Company shall not take or,to the extent within its power, permit to be taken,any
action that results in the interest paid for the installment purchase of the Project under the
terms of this Agreement being included in the gross income of the Certificate Owners or their
assigns for purposes of federal or State of Indiana income taxation.
Section 2.3 Mutual. CRC and the Company mutually represent,warrant, and agree that: (a) CRC has
benefitted from the Company's assistance with respect to the Project (including, without limitation, the
assistance of the Company with respect to the performance of the Extension and Retrofitting Work and
preparing and providing for the operation of the Energy Center and facilitating the financing of the costs of
construction and improvement of the Concert Hall); (b) as a result of such assistance, CRC's burdens have
been lessened with respect to providing, through the Project an in accordance with applicable Laws, a
community facility to be used by and for the benefit of governmental entities, schools and school districts,
colleges and universities,and other tax-exempt 501(c)(3)organizations;and(c)such assistance has included,
without limitation the following:
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(i) assisting with the redevelopment of unutilized, underutilized, and/or blighted
properties in the vicinity of the Project;
(ii) obtaining the services of architects and project engineers to: (A) provide design
and/or construction documents and drawings; and(B)satisfy engineering requirements; for
the Extension and Retrofitting Work;
(iii) working with 4CDC and/or the construction manager to obtain an agreement to
provide for the construction of the Extension and Retrofitting Work;
(iv) obtaining consumption agreements with the proposed users of the Energy Center
in the amounts, and under such terms, as CRC has determined to be necessary to provide
sufficient revenues for the operation of the Energy Center;
(v) providing for the initial management and operation of the Energy Center pursuant to
the Operating Agreement; and
(vi) agreeing to transfer to CRC fee simple title to the Project at such time as the
conditions in Section 9.1 have been satisfied, thereby providing CRC with the permanent
benefit of the Project beyond the term of this Agreement.
ARTICLE III -SALE AND PURCHASE OF THE PROJECT
Subject to the terms and conditions of this Agreement: (a) the Company shall transfer to CRC;and (b)CRC
shall purchase from the Company;title to the Project for the Purchase Price. CRC expressly understands and
agrees that CRC shall pay the full Purchase Price, regardless of whether the funds deposited in the
Acquisition Fund are sufficient to cover payment of the full Purchase Price. The Com pany acknowledges that
the Extension and Retrofitting Work constitutes a continuing obligation of 4CDC under the Extension and
Retrofitting Work Contract and Project Agreement.
ARTICLE IV -INSTALLMENT PAYMENTS
Section 4.1 Installment Payments. Subject to the terms and conditions of this Agreement (Including
CRC's right of prepayment pursuant to Articles VII and IX), CRC shall pay the Installment Payments to the
Company on the Installment Payment Dates. Each Installment Payment shall be paid to the Company in
lawful money of the United States of America. If CRC fails to make any Installment Payment,then: (a)such
Installment Payment shall continue as an obligation of CRC until paid in full; and (b)CRC shall pay interest
on the unpaid amount of the Installment Payment at the rate of interest then applicable to the remaining
unpaid principal balance of the Installment Payments if paid in accordance with their terms.
Section 4.2 Absolute Obligation. CRC's obligation to make the installment Payments is absolute and
unconditional,and until the Purchase Price is paid in full(or provision for the payment thereof has been made
pursuant to Article IX): (a)CRC shall not discontinue or suspend any Installment Payments that are due and
payable by CRC; and (b) no Installment Payment shall be: (i) subject to reduction, whether by offset or
otherwise;or(ii)conditional upon the performance or nonperformance by any party of any agreement for any
cause.
Section 4.3. Principal and Interest. The obligation of CRC hereunderto paythe Installment Payments shall
constitute an"obligation"under Section 1.150-1(b)of the Regulations:(a)the principal of which is the amount
specified in Exhibit A as the "Amount Attributable to Principal'; and (b) the interest on which is the amount
specified in Exhibit A as the "Amount Attributable to Interest"; although,for purposes of the laws of the State
of Indiana, the "Amount Attributable to Principal" and the "Amount Attributable to Interest° simply are two
amounts that serve as the basis for calculating the Purchase Price and, when aggregated, comprise the
Installment Payments. The obligations of CRC under this Agreement are those of a purchaser under an
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installment purchase agreement of real and personal property. Accordingly,this Agreement is neither a bond
nor a loan to, or borrowing of, CRC.
•
Section 4.4 Excess Cash Fund. On or before each Installment Payment Date during any CPCR
Deficiency Period, and after: (a) payment in full of: (i) the Installment Payments due on such Installment
Payment Date;and(ii)any amounts payable under any Bonds or Contracts on such Installment Payment Date
(but only to the extent that such amounts payable are superior to,or on parity with,the Installment Payments);
and (b) deposit in full of: (i) any amount required to be deposited into the Reserve Fund pursuant to
Section 4.5;and (ii)any amounts required to be deposited in any fund or account for any Bonds or Contracts
(but only to the extent that payments under such Bonds or Contracts are superior to, or on parity with, the
Installment Payments);CRC shall deposit with the Trustee,for deposit into the Excess Cash Fund,an amount
equal to the lesser of: (a) '/, of the amount of the Installment Payments payable for the immediately
succeeding calendar year;or(b)all Tax Increment then on deposit in the Allocation Funds;until the aggregate
amount in the Excess Cash Fund is equal to two times the amount of the Installment Payments payable for
the immediately succeeding calendar year. At anytime that:(a)there is a positive balance in the Excess Cash
Fund; and (b) the Contract Payment Coverage Ratio for each 12-month period ending on each of the six
immediately preceding fiscal quarters is not less than 1.25 to 1.0;the full positive balance in the Excess Cash
Fund shall be released to CRC.
Section 4.5 Reserve Fund. On or before each Installment Payment Date, and after payment in full of:
(a)the Installment Payments due on such Installment Payment Date;and(b)any amounts payable under any
Bonds or Contracts on such Installment Payment Date(but only to the extent that such amounts payable are
superior to, or on parity with,the Installment Payments); CRC shall deposit with the Trustee,for deposit into
the Reserve Fund, any amount necessary to restore the Reserve Fund to an amount equal to the Reserve
Requirement;provided that CRC may provide for the Reserve Fund by means other than cash and Permitted
Investments pursuant to the Trust Agreement.
ARTICLE V -SECURITY
Section 5.1 Security for the Certificates shall include:
(a) upon delivery of the Certificates, the Company shall: (i) deliver the Assignment
Agreement to the Trustee; and (H) grant to the Trustee a first mortgage lien on the Project
pursuant to the Mortgage,to be held by the Trustee for the benefit of the Certificate Owners
until CRC has satisfied its obligations under this Agreement in full;
(b) a security interest in all tangible personal property associated with the Project and
owned by CRC or the Company; and
(c) an assignment of all insurance contracts with respect to the Project.
ARTICLE VI -COVENANTS OF CRC
Section 6.1 Compliance. CRC shall:(a)punctuallypay the Installment Payments in strict conformity with
the terms hereof; (b) faithfully observe and perform all the agreements, covenants, terms, and conditions
required to be observed and performed by it pursuant to this Agreement;and(c)not terminate this Agreement
for any cause (including, without limitation: (i) any acts or circumstances that may constitute: (A) failure of
consideration;(B)destruction of,or damage to,the Project;(C)commercial frustration of purpose;or(D)any
change in the tax or other laws; (ii) any failure of the Company to observe or perform: (A) any agreement,
covenant,term,or condition required to be observed and performed by it pursuant to this Agreement,whether
express or implied; or (B) any duty, liability, or obligation arising out of, or connected with, the insolvency,
deemed insolvency, bankruptcy, or liquidation of the Company; or(iii) any force majeure, including acts of
God, tempest, storm, earthquake, war, rebellion, riot, civil disorder, acts of public enemies, blockade or
embargo, strikes, industrial disputes, lock-outs, lack of transportation facilities, fire, explosion, or acts or
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regulations of governmental authorities).
Section 6.2 Encumbrances.
(a) Tax Increment. CRC shall not pledge or encumber,or grant any lien on,or security
interest in, any Tax Increment; provided that CRC, at any time and from time to time, may
pledge Tax Increment to secure payment of any Contracts or Bonds, if such Tax Increment
is also pledged to secure payment of the Installment Payments on a not less than parity basis
with payment of such Contracts or Bonds.
(b) Bonds and Contracts.
(i) CRC shall not issue any Bonds, or enter into any Contracts, the
payments under which are superior to the Installment Payments.
(ii) CRC may issue Bonds,or enter into Contracts,the payments under
which are on parity with the Installment Payments,so long as CRC certifies
to the Trustee that (A) after issuing such Bonds or entering into such
Contracts; and (B)until the Purchase Price is paid in full; CRC will be able
to maintain a Contract Payment Coverage Ratio of not less than 1.25 to 1.0.
(iii) CRC may issue Bonds, and enter into Contracts, the payments
under which are subordinate to the Installment Payments.
Section 6.3 Tax Covenants. Notwithstanding anything to the contrary set forth herein,absent an opinion
of Special Tax Counsel that the exclusion from gross income of interest with respect to the Certificates will
not be adversely affected for federal income tax purposes, CRC and the Company covenant to comply with
all applicable requirements of the Code necessary to preserve such exclusion from gross income, including,
without limitation that:
(a) Private Activity. CRC and the Company shall not:(i)take,or omit to take,anyaction;
or(ii)make any use of the proceeds of the Certificates or of any other funds or property;that
would cause the Certificates to be°private activity bonds°within the meaning of Section 141
of the Code.
(b) Arbitrage. CRC and the Company shall not: (i)take, or omit to take, any action; or
(ii) make any use of the proceeds of the Certificates or of any other funds or property; that
would cause the Certificates to be'arbitrage bonds"within the meaning of Section 148 of the
Code.
(c) Federal Guarantee. CRC and the Company shall not: (i)take, or omit to take, any
action; or (ii) make any use of the proceeds of the Certificates; that would cause the
Certificates to be "federally guaranteed"within the meaning of Section 149(b) of the Code.
(d) Information Reporting. CRC and the Company shall take,or cause to be taken, all
necessary action to comply with the informational reporting requirements of Section 149(e)
of the Code.
(e) Miscellaneous. CRC and the Company shall: (i) not take any action that is
inconsistent with the expectations stated in any Tax Certificate executed with respect to the
Certificates; and (ii) comply with the covenants and requirements stated therein and
incorporated by reference herein.
If the Company incurs out-of-pocket costs and expenses to comply with the terms and conditions of this
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Section,then CRC will reimburse the Company for such costs and expenses. This Section,and the covenants
set forth herein,shall not be applicable to,and nothing contained herein shall be deemed to prevent CRC and
the Com pany from issuing,Certificates,the interest with respect to which has been determined by Special Tax
Counsel to be subject to federal income taxation.
Section 6.4 Maintenance/Operation. CRC shall: (a) have the right to occupy, possess, and use the
Project; (b) maintain and preserve the Project in good repair and working order at all times; (c) operate the
Project; and (d) pay all costs and expenses of operating and maintaining the Project as such costs and
expenses become due and payable.
Section 6.5 Payment of Claims. CRC shall pay and discharge any and all lawful claims for labor,
materials or supplies that, if unpaid, might: (a) become a lien on: (i) the Project; (ii) the funds or accounts
created hereunder; or (iii) any funds in the hands of CRC or the Trustee pledged to pay the Installment
Payments; or(b) impair the security of the Installment Payments;provided that CRC shall not be required to
pay such claims if the validity thereof shall be contested in good faith.
Section 6.6 Compliance with Contracts. CRC shall: (a)not take,or omit to take, any action under any
contract, if the effect of such act or failure to act would in any manner impair or adversely affect the ability of
CRC to pay Installment Payments;and(b)comply with,keep,observe and perform all ag reements,conditions,
covenants and terms, express or implied, required to be performed by it contained in all other contracts
affecting or involving the Project, to the extent that CRC is a party thereto.
Section 6.7 Insurance.
(a) CRC shall procure and maintain the Builder's Risk Insurance and the Casualty
Insurance.
(b) If there is damage to, or destruction of,the Project caused by the perils covered by
the Builder's Risk Insurance and/or the Casualty Insurance,then the Net Proceeds shall be
applied to the reconstruction,repair,and/or replacement of the damaged or destroyed portion
of the Project. CRC shall: (i) begin such reconstruction, repair, and/or replacement of the
applicable portion of the Project promptly after the occurrence of the damage or destruction;
(ii) complete such reconstruction, repair, and/or replacement as expeditiously as possible;
and(Hi) pay out of such Net Proceeds all costs and expenses in connection with completing
such reconstruction, repair, and/or replacements so that the Project is free and clear of all
claims and liens resulting from such reconstruction, repair, and/or replacements.
(c) If the Net Proceeds exceed the costs of the reconstruction, repair, and/or
replacement of the damaged or destroyed portion of the Project, then the excess Net
Proceeds shall be applied in the following priority: (i)first, to the prepayment of Installment
Payments, as provided in Article VII; and (ii) second, to such other fund or account as CRC
may direct and as may be permitted by the Laws. If the Net Proceeds are sufficient to allow
payment of the entirety of the Balance prior to the final Installment Payment Date,then CRC
may elect not to reconstruct,repair, and/or replace the damaged or destroyed portion of the
Project, and,thereupon, such Net Proceeds shall be applied in the following priority:(i)first,
to the prepayment of Installment Payments as provided in Article VII;and(ii)second,to such
other fund or account as CRC may direct and as may be permitted by the Laws.
(d) Any insurance required to be maintained by this Section may be maintained under
a self-insurance program, so long as such self-insurance: (i) is maintained in the amounts
and manner customarily maintained in connection with projects similar to the Project; and
(ii) in the opinion of an accredited actuary, is actuarially sound. All policies of insurance
required to be maintained herein shall: (i) name the Company and the Trustee as additional
insureds; (H) meet the insurance requirements stated in the Mortgage, to the extent
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applicable;and (iii) provide that CRC,ithe Company,and the Trustee shall be given 30 days'
written notice of any intended cancellation or reduction of coverage.
Section 6.8 Condemnation Proceeds. If all or any part of the Project is taken by condemnation
proceedings, then the Net Proceeds shall be applied to the replacement of the part of the Project taken by
condemnation proceedings; provided that, if: (a) all of the Project is taken by condemnation proceedings;or
(b)as a result of a taking by condemnation proceedings, replacement is not feasible;then the Net Proceeds
shall be applied in the following priority: (a)first, to the prepayment of Installment Payments as provided in
Article VII; and (b)second,to such other fund or account as CRC may direct and as may be permitted by the
Laws.
Section 6.9 Payment of Taxes. CRC shall pay and discharge when due all taxes, assessments, and
other governmental charges that may hereafter be lawfully imposed upon the Project orany part thereof. CRC
shall observe and conform with all valid regulations and requirements of any governmental authority relative
to the operation of the Project or any part thereof; provided that CRC shall not be required to comply with any
regulations or requirements so long as the validity or application thereof is contested in good faith.
Section 6.10 Records and Reports. CRC shall keep appropriate accounting records in which complete
and correct entries shall be made of all transactions by CRC relating to the Project, which records shall be
available for inspection by the Company and the Trustee at reasonable hours and under reasonable
conditions.
Section 6.11 Protection of Security. CRC shall: (a) preserve and protect the security hereof and the
rights of the Company and the Trustee to the Installment Payments hereunder; and (b)warrant and defend
such rights against all claims and demands of all persons.
Section 6.12 Further Assurances. CRC shall adopt, deliver, execute, and make any and all further
assurances, instruments and resolutions as may be reasonably necessary or proper: (a) to carry out the
intention or to facilitate the performance hereof; and (b) for better assuring and confirming the rights and
benefits provided to the Company and the Trustee hereunder.
Section 6.13 Title Defects. CRC, upon request by the Trustee,the Corn pany,or any Certificate Owner,
shall take such actions(including, if applicable, pursuing suits or other proceedings)as may be necessary or
appropriate to remedy or cure any defect in, or cloud upon, the title to the Project or any part thereof. CRC
shall indemnify and hold harmless each of: (a)the Trustee and its employees,offices, and directors; (b)the
Corn pany;and (c)the Certificate Owners;from all Claims arising out of,or in connection with,any such defect
or cloud, or any actions taken by CRC in connection therewith.
Section 6.14 Indemnities.
(a) CRC, if, and to the extent, permitted by law, shall indemnify and hold harmless the
Company and CFP from and against all Claims arising out of, or in connection with, the
acceptance or the performance of its duties hereunder and under the Trust Agreement;
provided that no indemnification shall be made for willful misconduct, gross negligence, or
a willful breach of an obligation hereunder or under the Trust Agreement by the Company.
(b) CRC, if, and to the extent, permitted by law, shall defend against every suit, action,
or proceeding at anytime brought against the Trustee(including its employees, officers,and
directors), the Company, CFP, or any Certificate Owner in connection with any Claim:
CO arising out of the receipt, application,or disbursement of any of the Installment Payments
in accordance with the terms and conditions of this Agreement,the Trust Agreement,and/or
the Certificates; or (H) involving the rights of the Trustee, the Company, CFP, or any
Certificate Owner under this Agreement; provided that the Trustee, the Company, CFP, or
any Certificate Owner,at its election, may appear in and defend on its own behalf any such
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suit,action, or proceeding.
(c) CRC, if, and to the extent, permitted by law, shall indemnify and hold harmless:
(i)the Trustee, the Company, CFP, and each Certificate Owner against any and all Claims
arising out of the receipt,application,or disbursement of any of the Installment Payments in
accordance with the terms and conditions of this Agreement,the Trust Agreement,and/or the
Certificates; and (ii) each Certificate Owner against any reasonable: (A) attorneys' fees;
and/or(B)other expenses; that it may incur in connection with any litigation (including pre-
litigation activities) to which it may become a party by reason of ownership of Certificates.
If there is litigation to enforce the rights of the Trustee, the Company, CFP, and/or any
Certificate Owner under this Agreement or the Certificates, then, to the extent that such
litigation is resolved in favor of the Trustee,the Company,CFP,and/or any Certificate Owner,
respectively, CRC promptly shall reimburse the successful party for the full amount of the
reasonable: (i) attorneys' fees; and/or (H) other expenses; incurred by the prevailing party.
(d) Except in the case of negligence or willful misconduct on the part of the Trustee,the
Company, or CFP, CRC, if, and to the extent, permitted by law, shall indemnify and hold
harmless the Trustee, the Company, and CFP (including its employees, officers, and
directors)against any Claims arising out of:(i)the exercise and performance by the Trustee
of any of the powers and duties under this Agreement or the Trust Agreement; (ii) the
occupancy, possession, use,operation, management,or condition of the Project or any pad
thereof; (iii) any work done in or about the Project or any part thereof; (iv) the planning,
design,acquisition, installation, or construction of the Project or any part thereof;or(v)any:
(A) untrue (or allegedly untrue) statement of any material fact; or(B) omission (or alleged
omission) to state a material fact necessary to make the statements made, in light of the
circumstances under which they were made,not misleading in any official statement or other
offering memorandum utilized in connection with the sale of the Certificates.
(e) The foregoing indem nities shall survive:0)payment of the Certificates and discharge
of this Agreement and the Trust Agreement; or(H)resignation or removal of the Trustee.
Section 6.16 Payment of Trustee. Subject to any the terms and conditions of any agreement in effect with
the Trustee, CRC shall: (a)pay to the Trustee reasonable compensation for its services; and (b)reimburse
the Trustee for its reasonable advances and expenditures(including,without limitation,advances to,and fees
and expenses of, independent appraisers, accountants, consultants, counsel, agents, and other experts
employed by the Trustee in connection with the exercise and performance of its powers and duties under the
Trust Agreement). Such compensation and reimbursementshall be paid by CRC,and amounts owing therefor
shall constitute a charge on the funds in the Acquisition Fund; provided that the Trustee otherwise shall not
have any claims(except in accordance with Section 6.14 and Section 8.4)or lien for payment of compensation
for its services against any other moneys held by it in the funds or accounts established under this Agreement
or the Trust Agreement, but the Trustee may take whatever legal actions lawfully are available to it directly
against CRC. The obligations of CRC under this Section shall survive: (a) payment of the Certificates and
discharge of this Agreement and the Trust Agreement; or(b) resignation or removal of the Trustee.
Section 6.17 Payments to Company. CRC shall: (a)pay to the Company an annual administrative fee
equal to 1% of all amounts paid by consumers under Energy Consumption Agreements (and, in any event,
not less than $13,662 per year); and (b) reimburse the Company for all reasonable, ongoing out-of-pocket
fees, expenses, premiums, or costs incurred by the Company and associated with the Project (including,
without limitation, any fees and expenses of any attorneys, accountants, consultants, and other advisors
employed by CRC or the Company). All amounts required by this Section to be paid to the Company shall
be paid not less than semi-annually on the Installment Payment Dates.
ARTICLE VII - PREPAYMENT
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Section 7.1 Prepayment. Consistent with the terms and conditions of the Trust Agreement, CRC may
(or shall, as the case may be)prepay all or any portion of the Purchase Price; provided that, notwithstanding
any partial prepayment, CRC shall not be relieved of its obligations hereunder, including its obligations with
respect to the payment of Installment Payments, until: (a) the Balance, by payment of the Purchase Price or
otherwise, has been paid in full; or(b)there is a full discharge pursuant to Section 9.1.
Section 7.2 Method. Before making any prepayment pursuant to Section 6.7,Section 6.8,or Section 7.1,
CRC shall give written notice to the Company and the Trustee specifying the date on which the prepayment
of all or a portion of the Purchase Price shall be paid,which date shall be not less than 60 days after the date
of such notice; provided that,if, pursuant to the Trust Agreement,prepayments must occur on an Installment
Payment Date, then such date shall be the next Installment Payment Date with respect to which notice of
prepayment may be timely given pursuant to the Trust Agreement.
ARTICLE VIII- DEFAULTS AND REMEDIES
Section 8.1 Events of Default. Each of the following shall constitute an'Event of Default°by CRC or the
Company, as applicable:
(a) CRC shall fail to make any Installment Payment required to be made by CRC when
due;
(b) the occurrence of a Special Default;
(c) CRC or the Corn pany shall fail to observe or perform any agreement or covenant
required by this Agreement to be observed or performed by it (other than the payment of
money or the occurrence of a Special Default),and such failure continues for a period of 60
days after CRC or the Corn pany, respectively, receives written notice of such failure; or
(d) if: (i) CRC or the Company files a petition or answer seeking arrangement or
reorganization under the federal bankruptcy laws or any other Law;(ii)a court of competent
jurisdiction approves a petition filed with or without the consent of CRC or the Company
seeking arrangement or reorganization under the federal bankruptcy laws or any other Laws;
or(iii)under the provisions of any Law for the relief or aid of debtors, any court of competent
jurisdiction assumes custody or control of CRC or the Company, or of the whole or any
substantial part of the property of CRC or the Corn pany.
Section 8.2 Acceleration.
(a) If there is an Event of Default by CRC, then the Company or the Trustee, as
assignee of the Company, may accelerate payment of the Balance by delivery of written
notice to CRC. Upon delivery of such notice,the entire unpaid Balance immediately shall be
due and payable.
(b) If,at any time: (i) after the Company or the Trustee exercises its right to accelerate
payment of the Balance; and (ii) before any judgment or decree for the payment of the
Balance has been obtained or entered;it is the case that:(i)CRC deposits with the Company
or the Trustee,as applicable,a sum sufficient to pay:(A)any overdue Installment Payments.
together with interest on any overdue Installment Payments at the rate applicable to such
Installment Payments as if paid in accordance with their terms; and (B) the reasonable
expenses of the Company or the Trustee, as applicable; and (ii)either: (A)all other Events
of Default by CRC known to the Company or the Trustee, as applicable, have been cured,
so that no such Events of Defaults remain outstanding; or(B) CRC shall have instituted a
plan for curing such Events of Default that the Company or the Trustee, as applicable, has
deemed to be adequate;then the Company or the Trustee,as applicable, shall rescind and
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annul its acceleration of payment of the Balance; provided that no such rescission and
annulm ent shall:(i)extend to or affect any subsequent Event of Default by CRC;or(ii)impair
or exhaust any right or power of the Company or the Trustee as a result of any subsequent
Event of Default by CRC.
Section 8.3 Additional 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; provided that, notwithstanding any other term or condition of this
Agreement, CRC shall have no right to: to terminate this Agreement until: (A)the Purchase
Price has been paid in full; or(B)there has been a full discharge pursuant to Section 9.1;or
(ii) discontinue or suspend payment, or reduce the amount, of any Installment Payments.
The rights and remedies available to the non-defaulting partyshall include,without limitation,
the following:
(i) if the defaulting party has failed to perform any of its obligations
under this Agreement, enjoining the failure or specifically enforcing the
performance of such obligation;
(H) if the defaulting party has failed to perform any of its obligations
under this Agreement(other than the obligation to pay any amounts due to
the non-defaulting party), performing the obligation that the defaulting party
has failed to perform; provided that the performance by the non-defaulting
party of such obligation shall not be construed to be a waiver of the Event
of Default; and
(iii) by mandamus,or other action,proceeding,or suit at law or in equity
to: (A) enforce its rights against the defaulting party; and (B) compel the
defaulting party to perform and carry out its duties under the Act and/or this
Agreement, as applicable.
(b) Damages. The non-defaulting party may recover from the defaulting party all
damages that the non-defaulting party incurs: (i) by reason of any Event of Default by the
defaulting party;and/or(ii)in connection with exercising its rights and remedies with respect
to any Event of Default;together with interest thereon. 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 Project.
Section 8.4 Application of Funds. It payment of the Balance is accelerated,then all amounts received
thereafter as a result of the exercise of any of the rights or remedies set forth in Section 8.3 shall be applied
in the following order: (a) first, without preference or priority (and in the event of any insufficiency of such
amounts, ratably,without any discrimination or preference), to the payment of the fees, costs, and expenses
of the Company and the Trustee, if any (including, without limitation, reasonable compensation to its
accountants and counsel); and (b) second, to the payment of the Balance, with interest on any overdue
Installment Payments at the rate applicable to such Installment Payments as if paid in accordance with their
terms.
Section 8.5 No Waiver. Neither: (a)a waiver by either party of an Event of Default;nor(b)an exercise
by either party of any right or remedy with respect to an Event of Default; shall be deemed either to:
(a) constitute a waiver of any subsequent Event of Default; (b) release or relieve the other party from
performing any of its obligations under this Agreement;or(c)constitute an amendment or modification of this
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Agreement. If the Company accepts Installment Payments during the continuance of an Event of Default by
CRC,then such acceptance shall not be construed as a waiver of: (a) such Event of Default; or(b)any right
or remedy of the Company with respect to such Event of Default.
Section 8.6 Remedies Not Exclusive. The rights and remedies hereunder are cumulative,and, except
as limited by Subsection 8.3(a), no: (a)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 (b)failure to exercise any right or remedy shall
operate to prevent the subsequent exercise of such right or remedy.
ARTICLE IX -DISCHARGE OF OBLIGATIONS
Section 9.1 Discharge of Obligations.
(a) When: (i) all or any portion of the Installment Payments have become due and
payable in accordance with this Agreement;or(ii)a written notice of CRC to prepay all or any
portion of the Installment Payments has been filed with the Trustee; and
(b) there has been:(i)deposited with the Trustee,at or prior to the Installment Payment
Dates or date (or dates)specified for prepayment, in trust for the benefit of the Company or
its assigns;and(ii)irrevocably appropriated and set aside to the payment of all or any portion
of the Installment Payments;sufficient:(i)funds;and (ii)non-callable Permitted Investments
that are described in clause (a) of the definition thereof, the principal of, and interest on,
which, when due, will provide funds sufficient to pay the Balance on the applicable
Installment Payment Dates or prepayment dates, as the case may be; and
(c) provision has been made for paying all fees and expenses of the Company and the
Trustee;
then, and in that event, the right, title, and interest of the Company herein, and the obligations of CRC
hereunder, with respect to the Installment Payments (or the applicable portion Thereof) that have been
provided for pursuant to this Section,shall cease,terminate, become void,and be compietelydischarged and
satisfied; other than: (a) the right of the Trustee, and the obligation of CRC, to have such funds and such
Permitted Investments applied to the payment of such Installment Payments; and (b) the obligation of the
Company to convey the Project to CRC.
Section 9.2 Trustee Accounting. At such time as the conditions in Section 9.1 have been satisfied, the
Trustee shall: (a)cause an accounting for such period or periods as may be requested by CRC; (b)execute
and deliver to CRC all such instruments as may be necessary or desirable to evidence such total or partial
discharge and satisfaction, as the case may be;and(c)in the event of a total discharge and satisfaction, the
Trustee shall pay over to CRC, after payment of all amounts due to the Trustee pursuant to the Trust
Agreement, as an overpayment of Installment Payments, all such funds or Permitted Investments held by it
pursuant hereto (other than such funds and such Permitted Investments as are required for the payment or
prepayment of the Installment Payments,which funds and Permitted Investments shall:(i)continue to be held
by the Trustee in trust for the payment of the Installment Payments; and (ii)be applied by the Trustee to the
payment of the Installment Payments).
Section 9.3 Company Conveyance. At such time as the conditions in Section 9.1 have been satisfied,
the Company shall transfer to CRC fee simple title to the Project. In connection with such transfer, the
Company shall deliver to CRC closing documents substantially the same in form and substance as those
received by the Company in connection with its acquisition of the Energy Center Site (including, without
limitation,that the deed shall be subject only to: (a)the exceptions to which the Company's title was subject
when it took title; (b) current real estate taxes and assessments not delinquent; and/or (c) such other
exceptions as: (i) may be approved by CRC during the term of this Agreement; or(ii)otherwise reasonably
are acceptable to CRC).
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ARTICLE X -MISCELLANEOUS
Section 10.1 No Debt. The obligations of CRC under this Agreement: (a)do not constitute a corporate
obligation or indebtedness of the City; but (b) are an obligation of CRC, payable solely from: (i) the Tax
• Increment; and (ii) any other funds of CRC available for payment thereof; excluding any special tax levied
under Section 27 of the Act.
•
Section 10.2 No Third Party Beneficiary. Nothing contained herein, expressed or implied, is intended
to give to any person other than CRC, the Company, or the Trustee any right, remedy, or claim under or
pursuant to this Agreement, and any agreement or covenant required herein to be performed by or on behalf
of CRC or the Company shall be for the sole and exclusive benefit of CRC,the Company,and/or the Trustee,
as applicable.
Section 10.3 Assignment and Successors. Except for assignments under the Trust Agreement and/or
the Assignment Agreement, the Company shall not assign this Agreement, or any of its rights hereunder,
without the prior written consent of CRC. Subject to the foregoing limitation on assignment, whenever either
CRC or the Company is named or referred to in this Agreement, such reference shall be deemed to include
the successor to the powers,duties,and functions that presently are vested in CRC or the Company, and all
agreements and covenants required hereby to be performed by or on behalf of CRC or the Company shall
bind and inure to the benefit of the respective successors thereof,whether so expressed or not. CRC hereby:
(a)acknowledges and agrees that this Agreement, and the obligations of CRC hereunder, will be assigned
by the Company to the Trustee under the Trust Agreement and the Assignment Agreement;and(b)approves
• the terms and conditions of the Trust Agreement and the Assignment Agreement.
Section 10.4 No Personal Liability. No commissioner, officer, or employee of CRC shall be individually
or personally liable for the payment of the Installment Payments. No commissioner, officer, or employee of
the Company or CFP shall be individually or personally liable for the obligations of the Company hereunder.
•
Section 10.5 Construction. This Agreement shall be construed in accordance with the laws of the State
of Indiana . The captions of this Agreement are for convenience only, and do not in any way limit or alter the
terms and conditions of this Agreement. All exhibits referenced in this Agreement are attached hereto and
incorporated herein by reference. This Agreement may be executed in counterparts, each of which shall
constitute an original, and all of which shall constitute but one and the same instrument.
Section 10.6 Partial Invalidity. The invalidity or unenforceability of any term or condition of this Agreement
shall not affect the other terms and conditions,and this Agreement shall be construed in all respects as if such
invalid or unenforceable term or condition had not been contained herein.
Section 10.7 Net Contract. This Agreement shall be deemed and construed to be a net contract,and CRC
shall pay absolutely net during the term hereof the Installment Payments and all other payments required
hereunder, free of any deductions and without abatement, diminution, or set-off.
Section 10.8 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 the Company at 18338 Minnetonka Boulevard, Suite B,
Deephaven, Minnesota 55391, Attn: President,with a copy to Daniel R.Nelson, Esq.,Best& Flanagan, 225
South Sixth Street,Suite 4000, Minneapolis, Minnesota 55402, Facsimile:612-339-5897;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.
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Section 10.9 Amendments.
(a) This Agreement,and the rights and obligations of the Company,C RC,the Certificate
Owners, and the Trustee, may be modified or amended at anytime by a written amendment
that is binding at such time as the written consents of CRC,the Company, and the Owners
of a majority in aggregate principal amount of the Certificates then Outstanding,exclusive of
Certificates disqualified as provided in the Trust Agreement,have been filed with the Trustee.
No such modification or amendment shall: (i)with respect to the Certificates:(A)extend the
stated maturities; (B) reduce the represented rate of interest; (C) change the method of
computing the rate of interest; (D) extend the time of payment of interest; (v) reduce the
amount of principal; or(E) reduce any premium payable on the prepayment thereof;without
the consent of the Owner of the affected Certificate; (ii)reduce the above-stated percentage
of Certificate Owners whose consent is required for the execution of any amendment or
modification of this Agreement, unless the written consent of all of the Owners of all
Certificates then Outstanding is obtained; or(iii)modify any of the rights or obligations of the
Trustee without its written consent thereto.
(b) This Agreement,and the rights and obligations of the Company,CRC,the Certificate
Owners, and the Trustee, also may be modified or amended at any time by a written
amendment that is binding upon execution, without the consent of any Certificate Owners,
to the extent that such modification or amendment is: (i) permitted by law;and (ii)for any of
the following purposes:
(A) to: (1)add additional covenants and/or agreements to be observed
or performed by the Company or CRC; or(2)surrender any right or power
of the Company or CRC under this Agreement;so long as CRC determines
that such addition or surrender does not materially and adversely affect the
interests of the Certificate Owners;
(B) to:(1)cure,correct,or supplement any ambiguous or defective term
or condition of this Agreement;or(2)address questions arising under a term
or condition of this Agreement; so long as CRC determines that the
foregoing does not materially and adversely affect the interests of the
Certificate Owners;and/or
(C) for such other purposes that CRC determines do not materially and
adversely affect the interests of the Certificate Owners;
provided that, no modification or amendment of this Agreement shall modify any of the rights
or obligations of the Trustee, without the written consent of the Trustee.
Section 10.10 Code. This Agreement is intended to be a contract for the purchase of property authorized
by Indiana Code §§ 36-7-14-12.2 and 36-7-14-19. If and to the extent this Agreement is not such a contract,
then this Agreement shall be deemed to: (a)include such terms not otherwise included;and(b)exclude such
terms not otherwise excluded; as is necessary to cause this Agreement to be such a contract.
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IN WITNESS WHEREOF, CRC has executed this Agreement as of the date set forth above.
THE CITY OF CARMEL
• REDEVELOPMENT COMMISSION, for
and on behalf of the Redevelopment
District
BY. A . !!. d ee I
�'�-c President
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IN WITNESS W HEREOF.the Company has executed this Agreement as of the date setforth
above.
CFP CARMEL, INDIANA ENERGY
CENTER, LLC
By: 2- rrL-Gig
Printed: fire /,J_ n�/zfl`[YC�
Title: PPle,ki(#7.
•
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•
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INDEX TO EXHIBITS
Exhibit A Installment Payments
Exhibit B Parcel 7 Site Plan (Parcel 7a, Parcel 7c, Theater Building Real Estate, Office Building Real
Estate, Tunnel, Energy Center Site
Exhibit C Description of Extension and Retrofitting Work
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EXHIBIT A
INSTALLMENT PAYMENTS
Subject to CRC's right of prepayment, as set forth in Articles VII and IX, CRC shall make •
payments to the Company in the amount, and on the preceding Business Day of each date, set
forth in this Exhibit. .
B. Amount C. Amount
Attributable to Attributable to D. Installment
A. Date Principal _Interest, Payment(B plus C)
01/15/2011 $179,545.63 $179,545.63
07/15/2011 512,987.50 • 512,987.50
01/15/2012 512,987.50 512,987.50
07/15/2012 512,987.50 512,987.50
01115/2013 $170,000 512,987.50 682,987.50
07/15/2013 175,000 508,100.00 683,100.00
01/15/2014 180,000 503,068.75 683,068.75
07/15/2014 185,000 497,893.75 682,893.75
01/15/2015 190,000 492,575.00 682,575.00
07/15/2015 195,000 487,112.50 682,112.50
01/15/2016 200,000 481,506.25 681,506.25
07/15/2016 205,000 475,756.25 680,756.25
01/15/2017 210,000 469,862.50 679,862.50
07/15/2017 215,000 463,825.00 678,825.00
01/152018 • 225,000 457,643.75 682,643.75
07/15/2018 230,000 451,175.00 681,175.00
01/15/2019 235,000 444,562,50 679,562.50
•
07/15/2019 245,000 437,806.25 682,806.25
01/15/2020 250,000 430,762.50 680,762.50
07/15/2020 255,000 423,575.00 678,575.00
01/15/202! 265,000 416,243.75 681,243,75
07/15/2021 270,000 408,625.00 678,625.00
01/15/2022 280,000 400,862.50 680,862.50
07/15/2022 290,000 392,812.50 682,812.50
01/15/2023 295,000 384,475.00 679,475.00
• 07/15/2023 305,000 374,887.50 679,887.50
01/15/2024 315,000 364,975.00 679,975.00
07/15/2024 325,000 354,737.50 679,737.50
01/15/2025 335,000 344,175.00 679,175,00
07/15/2025 350,000 333,287.50 683,287.50
01/15/2026 360,000 321,912.50 681,912.50
07/15/2026 370,000 310,212.50 680,212.50
01/15/2027 385,000 298,187.50 683,187.50
07/15/2027 395,000 285,675.00 680,675.00
01/15/2028 410,000 272,837.50 682,837.50
07/15/2028 420,000 259,512150 679,512.50
01/15/2029 435,000 245,862.50 680,862.50
• 07/15/2029 450,000 231,725.00 681,725.00
01/15/2030 465,000 217,100.00 682,100.00
07/15/2030 480,000 201,987.50 681,987.50
01/15/2031 495,000 186,387.50 681,387.50
07/15/2031 510,000 170,300.00 680,300.00
01/15/2032 525,000 153,725.00 678,725.00
07/15/2032 545,000 136,662.50 681,662.50
01/15/2033 560,000 118,950.00 678,950.00
07/15/2033 580,000 100,750.00 680,750.00
01/15/2034 600,000 81,900.00 681,900.00
07/15/2034 620,000 62,400.00 682,400.00
01/15/2035 640,000 42,250.00 682,250.00
07/15/2035 660,000 21,450.00 681,450.00
Exhibit B
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Exhibit C
Description of Extension and Retrofitting Work
Piping has been stubbed out of the south side of the Energy Center. Drawings are being finalized
to run 6" chilled water supply and return pipes and 4" heating hot water supply and return pipes
lines from the Energy Center south to the City of Cannel's municipal buildings (City Hall, Police
Station, Fire Station) located at Civic Square (the "Buildings"). The route is depicted on page 2
of this exhibit.
The Buildings' existing systems are inefficient and are nearing the end of their useful life.
Maintenance and energy costs are increasing, so retrofitting these Buildings for connection to the
Energy Center is beneficial both economically and environmentally.
• At City Hall, the existing chiller will be removed and chilled water connections from the
Energy Center will serve existing air handling units. Heating hot water from the Energy
Center will be piped throughout the building to replace electric resistance heating coils.
• Four-pipe fan coil units, utilizing chilled water and heating hot water from the Energy
Center, will replace gas furnaces and split-system air conditioners at the Fire Station.
• The Police Station has a water-source heat pump system which may be replaced with
four-pipe fan coils or air handling equipment. Alternately, heat pumps may be replaced
but connected to existing condenser water piping, with heat exchangers that utilize
chilled water and heating hot water from the Energy Center to replace the existing boiler
and fluid cooler.
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