251 LLCREPLACEMENT LAND SALE CONTRACT
This Replacement Land Safe Contract (the "Contract"), entered into by and between 251, LLC
(the 'Seller "), and The City of Carmel Redevelopment Commission (the "Purchaser "), this j day of
2010 (the "Execution Date "), WITNESSES:
Recitals
WHEREAS, Seller and Purchaser have entered into that certain Purchase Agreement dated
June 21, 2005 (the "Purchase Agreement ");
WHEREAS, pursuant to the Purchase Agreement, Seller has agreed to convey to Purchaser,
and Purchaser has agreed to purchase from Seiler, certain real estate owned by Seller and located at 251
god Street SW and 261 2nd Street SW, which real estate is depicted on Exhibit A (collectively, the "Parcel "),
together with and including all of Seller's right, title, and interest in and to: (a) all buildings and improvements
located on the Parcel (the "Improvements "); and (b) all rights, interests, privileges, and easements in anyway
appertaining to the foregoing, or used in connection therewith (the "Rights ");
WHEREAS, the Parcel, the Improvements, and the Rights, collectively, are the "Property ";
WHEREAS, pursuant to the Purchase Agreement, the purchase price for the Property is
$990,000.00 (the "Purchase Price ");
WHEREAS, the Purchase Agreement contemplates that, at the closing of the transaction
contemplated therein (the "Closing "): (a) Purchaser shall pay to Seller a portion of the Purchase Price, as
more particularly determined pursuant to the Purchase Agreement; and (b) Seller and Purchaser shall enter
into a land sale contract pursuant to which Purchaser shall pay the remainder of the Purchase Price to Seller;
WHEREAS, the Closing occurred on July 22, 2005;
WHEREAS, at the Closing, Purchaser paid to Seller a portion of the Purchase Price equal
to $116,000.00;
WHEREAS, the remaining amount of the Purchase Price (the "Original Purchase Price
Remainder ") at the Closing was $874,000.00;
WHEREAS, at the Closing, the parties entered into that certain Land Sale Contract (the "Land
Sale Contract ") pursuant to which Purchaser was to pay the Original Purchase Price Remainder;
WHEREAS, the Land Sale Contract was amended by that certain First Amendment to Land
Sale Contract dated August 3, 2006 (collectively with the Land Sale Contract, the "Original Contract ");
WHEREAS, as of the Execution Date, the Contract Balance (as defined in the Original
Contract) is $ 6 79, x,76 - 3 (the "Current Purchase Price Remainder "); and
WHEREAS, the parties desire to enter into this Contract to replace the Original Contract;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, Seller and Purchaser agree as follows:
1. Current Purchase Price Remainder. Purchaser shall pay the Current Purchase Price Remainder
as follows:
(a) interest. Interest shall accrue on the unpaid principal balance of the Current
Purchase Price Remainder remaining from time to time (the "Principal Balance "), with such
interest accruing: (i) from the Execution Date until the Purchase Price is paid in full; and (ii) at
the rate of 8.00%, The Principal Balance and the accrued but unpaid interest (the "Accrued
Interest "), collectively, are the "Contract Balance ".
(b) Payment.
(i) On the first day of the first full calendar month following the
Execution Date, and continuing on the first day of each of the next 66
calendar months thereafter, Purchaser shall pay $10,000.00 to Seller. Each
monthly payment shall be applied: (A) first, to Accrued Interest; and
(B) second, to reduce the Principal Balance,
(ii) On the first day of the 67th full calendar month following the
Execution Date (the "Final Payment Date "), Purchaser shall pay to Seller a
balloon payment in the amount equal to the Contract Balance.
(c) Prepayment. Purchaser may make prepayments of any amount of the Contract
Balance at any time without penalty or premium. All payments made by Purchaser, including
prepayments, shall be applied first to Accrued Interest, and then to reduce the Principal
Balance.
(d) Seller's Prepayment Option. Notwithstanding anything set forth to the contrary in this
Section, so long as Seller is not in default under this Contract, Seller may demand payment
of the Contract Balance in full by Purchaser (the "Seller's Prepayment Option") upon written
notice to Purchaser (the "Seller's Prepayment Option Notice "). Within 90 days after delivery
of Seller's Prepayment Option Notice, Purchaser shall pay the Contract Balance to Seller;
provided that, during such 90 -day period, Purchaser shall continue to make the monthly
payments described in Subsection 1(b)(i) to Seiler.
2. Taxes and insurance.
(a) Taxes. Purchaser assumes and agrees to pay: (i) aft general and special
governmental and utility assessments (the "Assessments ") first becoming due after the
date of the Original Contract (the "Original Contract Date "); and (ii) real estate taxes
assessed for and becoming a lien against the Property (the "Real Estate Taxes "),
beginning with the installment of Real Estate Taxes first becoming due in November 2005
(the "November Installment"); accordingly, there shall be no proration of Real Estate
Taxes, and Purchaser shall pay all installments becoming due after the Original Contract
Date, including the November Installment. Seller shall pay: (i) all Assessments first
becoming due prior to the Original Contract Date, and any other assessments of any
nature that first became due prior to the Original Contract Date; and (if) all installments
of Real Estate Taxes due prior to the November Installment. Purchaser, at its expense
and upon written notice to Seller, may contest on its and Seller's behalf any changes of the
assessed valuation of the Property. Seller shall cause all statements for Assessments and
installments of Real Estate Taxes payable by Purchaser pursuant to this Subsection to be
sent directly to Purchaser, and Purchaser, upon written request by Seiler, shall provide to
Seller evidence that Purchaser has paid such Real Estate Taxes.
(b) Insurance. Purchaser shall maintain fire and extended coverage insurance with a
responsible insurer covering all improvements located on the Property in a minimum amount
equal to the amount of the Principal Balance (the "Casualty insurance "). The Required
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Insurance shall be issued in the name of Seiler and Purchaser, as their respective interests
may appear. Purchaser shall maintain standard liability insurance, in customary amounts,
which insurance (the "Liability Insurance") shall name Seller as an additional insured.
. Purchaser, upon written request by Seller, shall provide to Seller evidence that Purchaser is
maintaining the Casualty Insurance and the Liability Insurance (the "Required Insurance ").
(c) Payment. If: (1) Purchaser fails to: (A) pay any Assessments or Real Estate Taxes;
or (B) maintain the Required Insurance; and (ii) such failure continues for ten days after
written notice from Seller; then Seller may pay such Assessments or Real Estate Taxes or
maintain the Required Insurance, as the case may be, and add the amount paid to the
Principal Balance.
3. Possession and Title. Seller and Purchaser acknowledge that: (a) on the Original Contract Date,
Seller gave to Purchaser full and complete possession of the Property; (b) as of the Original Contract Date,
Purchaser has the right to any income from the Property; and (c) Purchaser has obtained, from Hamilton Title
Security, LLC (the "Title Insurer "), a and contract purchaser's policy of title insurance satisfactory to Purchaser
(the "Land Contract Title Policy "). After the Original Contract Date, Seller has not encumbered, and shall not
encumber, the Property with a mortgage or any other lien.
4. Damage. All proceeds of the Casualty Insurance received by Purchaser and Seller as payment for
any loss of, or damage to, the Property shall be applied as determined by Purchaser either: (a) to restoration
and /or repair of the Property; or (b) toward prepayment of the Contract Balance; provided that, if an uncured
Event of Default (as defined in Section 9) exists on the date of receipt of such proceeds, then Seller may
require such proceeds to be applied toward prepayment of the Contract Balance, with any excess to be paid
to Purchaser.
5. Mechanics' Liens. Purchaser shall not suffer or cause the filing of any mechanic's lien against the
Property. If any mechanic's lien is filed against the Property, or any part thereof, for work claimed to have
been done for, or materials claimed to have been furnished to, Purchaser, then Seller, at its option, may
compel the prosecution of an action for the foreclosure of such mechanic's lien by the llenor. if; (a) any such
mechanic's lien is filed; and (b) an action is commenced to foreclose the lien; then, upon receipt of written
demand from Seller, Purchaser, at its expense, shall cause such mechanic's lien to be released by: (a) filing
a written undertaking with a surety approved by the Court; and (b) obtaining a court order releasing the
Property from such mechanic's. lien. Nothing in this Contract shall be deemed or construed to constitute
consent to, or a request of any party for, or as giving Purchaser the right or authority to contract for, authorize,
or permit, the performance of any work or the furnishing of any materials that would permit the attaching of
a valid mechanic's lien.
6. Indemnification. Purchaser hereby assumes all risk and responsibility for accidents, injuries, or
damages to persons and property arising from its use and control of the Property and the improvements
located thereon, Each party shall indemnify and hold harmless the other from and against any and ail claims,
judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees
and court costs) arising from,, or connected with, such party's control or use of the Property (including without
limitation, any damage or injury to person or property); provided that these indemnifications shall not include
any matter against which Seiler or Purchaser effectively's protected by insurance. If either party, without fault,
becomes a party to litigation commenced by or against the other party, then the party by or against whom
litigation is commenced shall indemnify and hold harmless the other party.
7. Use. Purchaser may use the Property for any legal purpose. If Purchaser: (a) obtains, from an
independent MAI appraiser, an appraisal that values the Parcel and the Improvements separately (the
"Appraisal "); and (b) pays down the Principal Balance so that it is no more than 80% of the value of the Parcel,
as set forth in the Appraisal; then Purchaser shall have the right to demolish the Improvements. Except to
the extent that Purchaser is permitted to demolish the Improvements, Purchaser shall: (a) use the Property
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in a careful manner; (b) keep the Property in good repair; and (c) not commit waste on the Property. In
connection with its use of the Property, Purchaser shall comply with all applicable federal, state, or local
laws, statutes, or ordinances, or governmental rules, regulations, or orders. Until the Contract Balance is
paid in full, Seller, from time to time, at reasonable times, and upon prior written notice to Purchaser, may
enter upon and inspect the Property.
8. Purchaser Defaults. Each of the following shall constitute an "Event of Default" for purposes of this
Contract:
(a) Failure by Purchaser to make any payment within 10 days after the date on which
such payment is due;
(b) Failure by Purchaser to observe or perform any term or condition of this Contract to
be observed or performed by Purchaser with respect to insurance, and the continuance of
such failure for 15 days after delivery of written notice by Seller;
(c) Failure by Purchaser to perform or observe any other term or condition of this
Contract, and the continuance of such failure for 30 days after delivery of written notice by
Seller; provided that, if such failure is of a nature that it reasonably cannot be cured within 30
days, then no Event of Default shall be deemed to have occurred so long as Purchaser:
(1) commences to cure such failure within 30 days; and (ii) diligently pursues such cure to
completion;
(d) The making of any levy on, or any seizure or attachment of, the Property;
(e) Purchaser: (i) institutes or consents to any proceedings: (A) in insolvency; (B) for the
adjustment, liquidation, extension, or composition or arrangement of debts; or (C) for any
other relief under any insolvency law or laws relating to the relief or reorganization of debtors;
(ii) 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 its
inability to pay debts as they become due; or
(d) Any part of the Property, or all or a substantial part of the property or assets of
Purchaser, is placed in the hands of any appointed receiver, trustee or other appointed
officers or representatives of any court, and the appointment of such receiver, trustee, or
other officer or representative is not vacated or set aside within 90 days of the appointment,
or Purchaser consents, agrees or acquiesces to the appointment of any such receiver or
trustee.
9. Seller Remedies. If an Event of Default occurs and is continuing, then: (a) at the option of Seiler:
(1) the entire Contract Balance shall become immediately due and payable by delivery of written notice to
Purchaser; and (ii) Seiler shall have the right to exercise any and all remedies available at law or in equity to:
(A) collect the Contract Balance; (B) foreclose this Contract; and (C) protect Seller's interest under this
Contract and in and to the Property; or (b) Seller may exercise any and all remedies available at law or in
equity to enforce the observation or performance by Purchaser of the terms and conditions of this Contract.
All of the remedies available to Seller shall be cumulative and not exclusive, and the failure by Seller to
exercise any remedy at any time shall not operate as a waiver of the right of Seller to exercise any remedy
for the same or any subsequent Event of Default at any time thereafter. If an Event of Default occurs under
Subsection 8(a), then, in addition to the foregoing remedies, Purchaser shalt pay to Seller an amount equal
to 10% of the late payment, which amount shall riot be applied to the Principal Balance.
10. Transfer of Title. On the Final Payment Date, and upon payment by Purchaser of the Contract
Balance, Seller shall convey to Purchaser fee simple title to the Property by general warranty deed, subject
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only to: (a) easements and restrictions of record as of the Original Contract Date, as disclosed in the Land
Contract Title Policy, except for those caused by, through, or under Purchaser; (b) the rights of persons in
possession of the Property claiming by, through, or under Purchaser; (c) the lien of all Real Estate Taxes
payable by Purchaser hereunder; and (d) any other encumbrances which, by the terms and conditions of this
Contract, are to be paid by Purchaser. In addition to the foregoing, Seller shall deliver the following to
Purchaser:
(a) a vendor's affidavit, in form and substance reasonably satisfactory to Purchaser and
the Title insurer;
(b) an affidavit that Seller is not a "foreign .person ", in form and substance similar to
that delivered to Purchaser at the Closing; and
(c) an affidavit that the Parcel is not "property" under the Indiana Responsible
Property Transfer Law, as amended, in form and substance similar to that delivered to
Purchaser at the Closing.
11. Notices. All notices permitted or required to be given hereunder shall be in writing, and shall be
deemed to be delivered when: (a) delivered personally; (b) sent by facsimile, with electronic confirmation of
receipt; or (c) sent by national overnight courier; in all events to the following addresses: to Purchaser 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., W ailack Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana
46204, Facsimile: 317 - 231 -9900; or (b) to Seller at 3057 Sugar Maple Court, Carmel, Indiana 46033, with a
copy to Curtis J. Butcher, Esq„ Law Offices of Curtis J. Butcher, 8 West Main Street, Carmel, Indiana 46032,
Facsimile: 317 -846 -2597. Either party may change its address for notice by written notice delivered to the
other party as provided above.
12. Assignment. Purchaser shall not sell, assign, pledge, mortgage, encumber, or transfer its rights and
interests in and to the Property and under this Contract without the written consent of Seller; provided that
Purchaser, without the written consent of Seller, shall have the right, without the consent of Seller, to:
(a) assign this Contract to any agency or instrumentality of the City of Carmel, Indiana; or (b) sell, assign,
pledge, mortgage, encumber, lease, subcontract, or transfer its rights and interests in and to the Property and
under this Contract to a party that has committed to Purchaser that it will redevelop the Property; provided
that, in either case, Purchaser shall remain obligated hereunder until the Contract Balance is paid in full. This
Contract otherwise shall be binding upon, and shall inure to the benefit of, Seiler and Purchaser and their
respective heirs, personal representatives, successors, and assigns.
13. Authority. The undersigned persons executing this Contract on behalf of Seller and Purchaser
represent and certify that: (a) they are fully empowered and duly authorized by all necessary action of Seller
and Purchaser, respectively, to execute and deliver this Contract; (b) they have full capacity, power, and
authority to enter into and carry out this Contract; (c) the execution, delivery, and performance of this Contract
have been duly authorized by Seller and Purchaser, respectively; and (d) this Contract is the legal, valid and
binding obligation of Seiler and Purchaser, respectively.
14. Miscellaneous. The terms and conditions of this Contract shall be governed by and construed in
accordance with the laws of the State of Indiana. If Seller fails to observe or perform any term or condition
of this Contract to be observed or performed by Seiler, and such failure continues for 30 days after receipt of
written notice from Purchaser, then: (i) Seiler shall be deemed to be in default; and (ii) Purchaser may
exercise any and all remedies available at law or in equity (including, without limitation, the remedy of specific
performance); provided that, if such failure is of a nature that it reasonably cannot be cured within 30 days,
then no default shall be deemed to have occurred so long as Seller: (I) commences to cure such failure within
30 days; and (ii) diligently pursues such cure to completion. This Contract replaces and supersedes the
Purchase Agreement and the Original Contract in their entirety, and is the final expression of the complete
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and exclusive agreement between Seller and Purchaser with respect to the Property. No agreement by and
between Seller and Purchaser to modify or amend this Contract shall be binding and enforceable, unless all
terms and conditions of the modification or amendment are set forth in writing and signed by Seller and
Purchaser. At the request of either party; (a) both parties shall execute a memorandum of this Contract, in
form and substance reasonably satisfactory to both parties; and (b) CRC, at its expense, shall record the
same.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Contract as of the day
and year first written above.
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THE CITY OF CARMEL
RE' V. t EN C
f
By:
SSION
Ronald Carter, President
15Feb10