Old Towne Properties LLCLAND SALE CONTRACT
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LLC (the "Seller"), and The City of Carmel Redevelopment Commission ("CRC"), this Uday
of
November, 20O8.VV|TNE8SE8:
Recitals
WHEREAS, Seller and CRC have entered nto that certain Purchase Agreement dated
September 25.2DOS (the "Purchase Agveemunt");
WHEREAS, pursuaritto the Purchase Agreement, Selier has agreed to ccinveyto CRC, arid
CRC has agreed to purchase from Seller, certain real estate owned by Seller and more particularly described
and/or depicted on Exhibit A. attached hereto and incorporated herein (the "Parcel"), together with and
including all mfSeller's right, t|Na, and interest in and to: (a) aJI buildings and improvements located on the
Parcel (the "Improvements"); and (b) all rights, interests, privileges, and easements in any way appertaining
to the hmrogn[ng, or used in connection fhurevvdh, including, without limitation, the Liquor License (as
hereinafter defined) (the "Rights");
WHEREAS, the Parcel, the Improvements, and the Rights, collectively, are the "Property";
VVHEREAG, pursuant to the Purchase Agnenmnnt, the purchase price for the Property is
54DD.Q00.O0 (the "Purchase Price");
WHEREAS, pursuant to the Purchase Agreement: (a) the purchase price for the Property is
*48D.OUO.O0 (the "Purchase Prioo^); and (b) $2O.0OO.00of the Purchase Price shall bo allocated oo the Liquor
License (as hereinafter defined) (the "Liquor License Purchase Price");
WHEREAS, the Purchase Agreement contemplat o that, at the closing of the transaction
contemplated in the Purchase Agreement (the "Closing"); (a) CRC shall pay to Seller $00.000.0O of the
Purchase Price; and (b) Seller and CRC shall enter into a land sale contract pursuant tu which CRC shall pay
the remaining $840.000.00 of the Purchase Price;
WHEREAS, notwithstanding the Purchase Agreement, CRC shall pay $320,000.00 of the
Purchase Price (the "Purchase Price Remainder") pursuantto the terms and conditions of this Contract, which
Purchase Price Remainder represents $340'000.00 less the Liquor License Purchase Price;
WHEREAS, pursuant to Subsection 1(d), the Liquor License Purchase Price may be added
to the Principal Balance (as hereinafter defined);
WHEREAS, the Closing occurred on the date hereof; and
WHEREAS, Seller and CRC desire to enter into this Contract;
Agreement
NOW , THEREFORE, for good and valuable connidonatiom, the receipt and sufficiency of
which are acknowedged hereby, Solier and CRC agree as foliows:
1. Purchase Price Remainder. CRC shall pay the Purchase Price Remainder as folio :
(a) Interest. Interestshall accrue on the unpad principal balance ofthe Purchase Price
Remainder remaining from time to time (the "Principal Balance"), with such interest accruing:
(i) from the date hereof (the "Execution Date") until the Purchase Price is paid in full; and
(ii) at the rate of 6.00% per annum (the "Interest Rate"). The Principal Balance and the
accrued but unpaid interest (the "Accrued Interest"), collectively, are the "Contract Balance".
(b) Payment.
(1) On the first day of the first foil calendar month following the
Execution Date, CRC shall pay to First Merchants Bank, National
Anonoiat|on, as holder of the first mortgage on the Property (the
"Mortgagee") the Accrued Interest for the period: (A) commencing on the
Execution Date; and (B) ending on the last day of the calendar month in
which the Execution Date occurred,
(ii) Commencing on the first day of the second full calendar month
following the Execution Dota, and continuing thereafter on the first day of
each month, CRC shaU pay to Mortgagee 83 equal monthly payments of
principal plus interest in the am nwh|ch is the amount
necessary to fully amortize the Purchase Price Remainder over a 20imer
period at the Interest Rate. Each monthly payment paid to Mortgagee shall
be applied: (A) first, as described in those certain loan documents by and
between Seller and Mortgagee on even date herewith with respect to the
mortgage loan issued by Mortgagee to Seller (the 'Loan Documents");
(B) second, to Accrued Interest; and (C) th|nd, to reduce the Principal
Balance.
(iii) On the first day of the 85m full calendar month following the
Execution Date (the "Final Payment Date"), CRC shall pay to: (A) the
Mortgagee an amount required for the Mortgagee to release its first
mortgage ort (he Parcel (the Mortgage"), the principai balarice owed under
any Loan Documents, in any event, shall not exceed $800.OUO.0D; and (B)
SelIer a balloon payrnent in an amount equal to the Contract Baiarice after
the payment to Mortgagee described in this Subsection.
(c) Prepayment. CRC may make prepaynients of any amount ofthe Contract Balance
at any time without penalty or premium, which prepayments shall be: (i) applied: (A) first, as
described in the Loan Documents; (B) second, to Accrued Interest; and (C) third, to reduce
the Principal Balance; and (ii) made to the Mortgagee.
(d) Liquor License. Pursuant to the Purchase Agreement, CRC, at the Closing,
purchased Seller's liquor license, No. RR2A2558O (the "Liquor Lioomso^). The parties hereby
acknowledge that the transfer of the Liquor License has not been completed.
Notwithstanding anything to the contrary herein, if the Liquor License ultimately is transferred
to CRC or its dauignom, then the Principal Balance immediately shall be increased by
$20.000.00.
2. Taxes and lnsurance.
(a) Taxes. Pursuantto the Purchase Agreernent, Seller and CRC agreed to a proration
of: (i) all general and special governmental and utility assessments (the "Assessm ents"); and
(ii)the real estate taxes: (A) payable during 2010; (B) assessed for and first becoming a lien
against the Property during 2009; and (C) assessed for and first becoming a lien against the
Property after 2009 (all of the foregoing real estate taxes, collectively, are the "Real Estate
Toxeo^). CRC acknowledges that: (i) it received a credit against the Purchase Price at
closing in the arnount of the Assessments and Real Estate Taxes that were not: (A) to be
assumed by CRC; and (B) due and payable at the time of closing; (ii) Seller shall not be
further liable for such Assessments or Real Estate Taxes; and (iii) CRC shall be responsible
to pay all such Assessments or Real Estate Taxes. Acoordingly, from and after the date
hereof, CRC shall pay all Assessments and Real Estate Taxes due after the Execution Date.
CRC, at its expense and upon written notice to Selier, may coritest on its and SeHers behalf
any changes of the assessed valuation of the Property. Seller shall cause all statements for
Assessments and installments of Real Estate Taxes to be sent directly ho CRC, and CRO,
upon written request by Selier, shall provide to Selier evidence that CRC has paid such
Assessments and Rea Estate Taxes.
(b) Insurance. CRC shall maintain, or cause to be maintained, types and arnounts of
insurance with respect to the Property as required by the Loan Documents (the "Required
meunonue~). All policies of insurance required to be maintained by CRC hereunder shall
name Selier and the Mortgagee as an additional insureds. CRC, upon written request by
Seller, shall provide to Seller evidence that CRC is maintaining the Required Insurance. The
Required insurance may be maintained under a "blanket policy" insuring other parties and
other locations so long as the minimum insurance policy requirements and limits set forth
herein are maintained.
(c) Payment. If: (|) CRC 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 obtain
the Required Insurance, as the case may be, and add the amount paid to the Principal
Balance
3. Possession and Title. Seller and CRC acknowledge that: (a) on the Execution Qate, Seller has
given CRC full and complete possession of the Property; (b) as of the date hereof, CRChoo@hehghttoamy
incomefrorn the Property; and (c) Seller has provided to CRC a land contract owner's policy of title insurance
issued by Hamilton Title Security, LLC (the 'Title Insurer"), and satisfactory to CRC (the "Land Contract Title
Policy"). After the date hereof, Seller shall not encumber the Property with a mortgage or any other lien,
except for the Mortgage.
Damage. All proceeds of the Casualty Insurance received by CRC and Seller as payment for any
loss of, or damage to, the Property shall be applied as determined by CRC 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 Seiler may require
such proceeds to be applied: (a) fimt, toward prepayment of the Mortgage Loan; and (b) second, toward
prepayment of the Contract Balance to the Mortgagee, with any excess to be paid to CRC.
5. Mechanics' Lions. CRC shall not suffer or cause the filing of any mechanic's lien against the
Property. If any mechanic's lien is filed against the Pmpedy, or any part thereof, for work claimed to have
been done for, or materials claimed to have been furnished to, CRC, then Seller, at its option, may compel
the prosecution of an action for the foreclosure of such mechanic's lien by the lienor. 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 SaUur. CRC, at its oxpaoue, 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 CRC 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. CRC hereby assumes all risk and responsibility for accidents, injuries, or damages
to persons and property arising from its use and control of the Property, Each party shall indernnify and hotd
harmless the other from and against any and all claims, judgments, liabilities, |oaoea, oouta, and expenses
(including, without limitation, reasonable attorneys' fees and court costs) arising from, or connected with, such
party's: (a) failure to perform any of its obligations under this Contract; or (b) control or use of the Property
(including, without limitation, anydamage orinjuryto person orproperty); provided that these indemnifications
shall not include any matter against which Seller or CRC is protected (or is required by the terms of this
061■Iov0o
Contract toba protected) by insurance. If either party, without fauit, becomes o party to litigation commenced
by or against the other partY, then the party by or agains whom litigation is commenced shall indemnify and
hold harmless the other party.
7. Use. CRC may use the Property for any legal purpose. CRC shati have the right to demolish that
portion of the Improvements depicted and/or described on Exhibit B, attached hereto and incorporated herein.
Except to the extent that CRC is permitted to demolish the |mpmvemen1o. CRC shall: (a) use the Property
in a careful manner; (b) keep the Property in good repair; and (c) not comrnit waste on the Property. In
connection with its use of the Pmpmrty. CRC shall comply with all applicable hadenm|, utate, or local |ama,
statutes, or ordinances, or governmental rules, regulations, or orders. tJntil the Contract Balance is paid in
full, Seller, from time to time, at reasonable times, and upon prior written notice to CRC, may enter upon and
inspect the Property.
8. CRC Defaults. Each of the following shall constitute an "Event of Default" for purposes of this
Contract:
(a) Failure by CRC to make any payment, including, without limitation, any payment due
under Sections 1 or 2, within 10 days after delivery of written notice by Seller; provided that
Seller shall not be required to give, and CRC shall not be entitled to oonaivn, such notice
more than two times in a given calendar year;
(b) Failure by CRC to observe or perform any term or condition of this Contract to be
observed or performed by CRC with respect to insurance, and the continuance of such failure
for 30 days after delivery of written notice by Seller;
(c) Failure by CRC to perform or observe any ether 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 CRC: (i) commences
to cure such failure within 30 days; and (H) diligently pursues such cure to completion;
(c)
The making of any levy on, or any seizure or attachment of, the Property;
(d) CRC: (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;
(|i) files an answer admitting bankruptcy or insolvency, or in any manner is adjudged
insolvent; (|0 makes an assignment for the benefit of creditors; or (iv) admits in writing its
inability to pay debts as they become due; or
(e) Any part of the Property, ur all oro substantial part of the property nrmnoetocf CRC,
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 oppoinbnent, or CRC
ooneantu, agrees or acquiesces to the appointnient of any such receiver or trustee.
9. Seller Remedies. If an Event of Default occurs and is continuing, then: (a) at the option of Seller:
(i) the entire Contract Balance shall become immediately due and payable without any notice or demand of
any kind; and (ii) Seller 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) Selier may exercise any and all remedies available at Iaw or in
equity to enforce the observation or performance by CRC of the terms and conditions of this Contract. All 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 ofthe right of Seier to exercise any remedy for the same
or any subseqLient Event of Default at any time thereafter.
10. Transfer mfTitle. Upon paynient by CRC ofthe Contract Balance, Selier shall convey to CRC tee
sim ple title to the Property by general warranty deed, subject only to: (a) easements and restrictions of record
as of the Execution Date (other than the Mort0age), as disclosed in the Land Contract Title Policy; (b) the
rights of persons in possession of the Property claiming by, through, or under CRC; (c) the lien of all Real
Estate Taxes payable by CRC hereunder; and (d) any other encumbrances which, by the terms and conditions
of this Cuntrent, are to be paid by CRC. In additon to the forogaing, Seller shall deliver the following to CRC:
(a)
a vendor's affidavit, in form and substance satisfactory to CRC and the Title Insurer;
(b) an affidavit that Seller is not a "foreign person", in form and substance similar to that
deliveied to CRC at the Cosing; and
(c) an affidavit that the Parcel is not ^pnoporty under the Indiana Responsible Property
Transfer Law, as amended, in form and substance similar to that delivered to CRC at the
Closing.
11. Notices. All notices permitted or required to be given hereunder shall be in wdtimg, 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 CRC at City of
Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Facsimile: 817-844-3488, Attn: Les OIds, with
a copy to: Karl P. Haaa, VYa|laok Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana
46204, Facsimile: 317.231-Q080;nrta Seller c/o Barker Law Offices, 05O North RangeUna Road, Carmel,
Indiana 40032^Facsimile: 317-575-6260, Attn: David J. Barker. Either party may change its address for notice
by written notice delivered to the other party as provided above.
12. Assignment Rights. CRC shall not sell, assign, pledge, mortgage, encumber, ortransfer ts rights
and interests in and under this Contract without the written consent of Seiler; provided that CRC, without the
written consent of Seller, shall have the right to: (a) assign this Contract to any agency or instrumentality of
the City of Carmel, Indiana; or (b) sell, anoign, pledgo, mortgage, encumber, |eaxe, oubconbaot, or transfer
its rights and interests in and to the Property to a party that has committed to CRC that it will utilize and/or
redevelop the Property. Notwithstanding any sale, ooaignmnont, p|adQe, mortQogu, ennumbnenve, lease,
subcontract, or transfer by CRC permitted under this Section, CRC 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, Seller and CRC and their respective he|ro, personal naprooemtoUvea, oucueasono, and assigns.
13. Authority. The undersigned persons executing this Contract on behalf of Seller and CRC represent
and certify that: (a) they are fully empowered and authorized by all necessary action of Seller and CRC,
respectively, to execute and deliver this Contract; (b) they have full capacity, power, and authority bo enter into
and carry out this Contract; (c) the exeuution, da|ivory, and performance of this Contract have been duly
authorized by Selier and CRC, respectively; and (d) this Contract is the |age|, valid and binding obligation of
Selier and CRC, respectively.
14. Miscellaneous. The ternis and conditions of this Contract shali be governed by and construed in
accordance with the laws of the State of lndiana. This Contract supersedes the Purchase Agreement, and
is the final expression of the complete and exclusive agreement between Seller and CRC with respect to the
Property. No agreement by and between Seller and CRC 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 SelIer and CRC. At the request of either party: (a) both parties shall execute a memorandum of this
Contract; and (b) CRC, at its expense, shall record the same.
[Signature page to follow.]
IN WITNES WHEREOF, Selierand CRC have executed ths Contractasofthe dayand year
first written above.
SELLER:
OLD TOWN PROPERTIES, LLC
By: Carmel Develop ent.LLC.Member
By:
CRC:
Tho ging
Mem r
THE CITY OF CARMEL REDEVELOPMENT
CO
Ronald E. Carter President
STATE OF INDIANA
COUNTY OFHAMILTON
)
)
)
ACKNOWLEDGMENTS
SS:
Before me, a Notary Public in and for the State of Indiana, personally appeared Thomas J. Lazzara,
the Managing Member of Carmel Development, LLC, a Member of 0|g Town Properties, LLC, who
acknowiedged the oxecution of the foregoing Land Contract onbehL�__ such entity.
i.
BY: _
WITNESS my hand and Notarial Soal this
1 am a resident of
My cornmission expires
STATE OF INDIANA
COUNTY OF HAMILTON
County, Indiana.
)
)
)
SS:
er, 2009.
Printed Name:
o oryPub|ic
Before me, a Notary Public in and for the State of Indiana, personally appeared Ronald E. Carter, the
President of the City of Carmel Redevelopment Commission, who acknowledged the execution of the
foregoing Land Sale Contract ori behalf of such entity.
WITNESS my hand and Notarial Seal t ' /Oday of November, 2009.
'`
BY:
(l
Printed Name: �/o��' / /' /
|mmo resident of 14:fr7/ County, Indiana.
My commission expires /
This instrument was pr ponmdbyRyanR.VV|knodng.Attorney-\t-Low.VYallackGomerw&Hoou.8no|ndiano
Square, Suite 15DO. Indianapolis, Indiana 48204. 1 affirm, underthe penalties for perjury, that 1 have taken
reasonable care to redact each Social Security number n this document, unless required by law.
Ryan R.VYi|rnehng
-7'
EXHIBIT A
Depiction and/or Description of the Parcel
Part of Lo Number 15 in Warren and Phelps Addition of Bet lehem, now Carmel, Hamilton County, Indiana,
as per plat thereof, recorded in Deed Record H, page 258 in the Offiee of the Recorder of Hamilton County,
Indiana, described as foliows, to-wit:
Begin 2 1/2 feet East of the Northwest corner of said Lot and run thence South 132 feet; thence East 28 feet;
thonuuNodh132foetthennaVVeot28feattofhnp|oonofbogimning.
EXHIBIT B
Description and /or Depiction of Improvements That May Be Demolished
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Parcels: November 2009
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Minor Roads
Subdivision Roads
New Subdivision Roads
Private Road or Drive
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Parcels: November 2009
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— US Highway
— Major Roads
Minor Roads
Subdivision Roads
New Subdivision Roads
Private Road or Drive
Color Ortho Photo 2009
Ity Council Districts 2009
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