Contract Summary SheetContract (PO) Number: 15262Specification Number: 59225Name of Contractor: W9 MLM REALESTATE LPCity Department: PLANNING &DEVELOPMENTTitle of Contract: Redevelopment Agreement:Diversey/Narragansett TIF DistrictDollar Amount of Contract (or maximum compensation if a Term Agreement) (DUR):PO Start Date: 1/30/2004$26,500,000.00 PO End Date: 12/31/2027Brief Description of Work: Redevelopment Agreement:Diversey/Narragansett TIF DistrictProcurement Services Contact Person: THOMASDZIEDZICVendor Number: 50802021Submission D ~ - 8 0200180011101808 JOURNAL--CITY COUNCIL--CHICAGO 6/4/2003DESIGNATION OF W9jMLM REAL ESTATE LIMITED PARTNERSHIPAS PROJECT DEVELOPER, AUTHORIZATION FOR EXECUTIONOF REDEVELOPMENT AGREEMENT AND ISSUANCE OFTAX INCREMENT ALLOCATION REVENUE NOTEFOR PROPERTY AT 6465 WESTDIVERSEY AVENUE.TheCommitteeonFinancesubmittedthefollowingreport:CHICAGO, June4, 2003.TothePresident andMembersof theCityCouncil:Your Committee on Finance, having had under consideration an ordinanceauthorizingtheexecutionofa redevelopment agreementandtheissuanceof twoCity of Chicago Tax Increment Allocation Revenue Notesfor the benefit of W9/WLMReal Estate Limited Partnership, amount of Series ANote not to exceed$19,500,000, amount of Series BNotenot to exceed$7,000,000, havinghadthesame under advisement, begsleavetoreport andrecommend that YourHonorableBodyPass theproposedordinancetransmittedherewith.This recommendation wasconcurred inbyaviva voce voteof the members of theCommittee.Respectfully submitted,(Signed) EDWARD M. BURKE,ChairmanOnmotionof AldermanBurke, thesaidproposedordinancetransmittedwiththeforegoingcommittee report wasPassedby yeas and nays asfollows:Yeas -- Aldermen Flores, Haithcock, Tillman, Preckwinkle, Hairston, Lyle,Beavers, Stroger, Beale, Pope, Balcer, Cardenas, Olivo, Burke, T. Thomas, Coleman,L.Thomas, Murphy, Rugai, Troutman, Brookins, Munoz, Zalewski, Chandler, Solis,Ocasio, E. Smith, Carothers, Reboyras, Suarez, Matlak, Mell, Austin, Colon, Banks,Mitts, Allen, Laurino, O'Connor, Doherty, Natarus, Daley, Tunney, Levar, Shiller,Schulter, M. Smith, Stone-- 48.6/4/2003Nays-- None,REPORTS OF COMMITTEES 1809AldermanBeaversmovedto reconsider theforegoingvote. Themotionwas lost.Thefollowingissaidordinance aspassed:WHEREAS, Pursuant toan ordinance adoptedby theCity Council ("City Council")of the City of Chicago (the "City") on February 5,2003, acertain redevelopment planand project (the "Redevelopment Plan") for the DiverseyI Narragansett T.LF.Redevelopment ProjectArea(the"RedevelopmentArea") wasapprovedpursuant totheIllinois Tax Increment Allocation Redevelopment Act, 65ILCS5111-74.4-1, etseq. (2000StateBarEdition), asamended(the"Act"); andWHEREAS, Pursuant to an ordinance adopted by the City Council onFebruary 5, 2003, the Redevelopment Area was designated as a redevelopmentproject areapursuant to theAct; andWHEREAS, Pursuanttoanordinance(the"T.LF. Ordinance") adoptedby theCityCouncil on February 5, 2003, tax increment allocation financing was adoptedpursuant to the Act as a means of financing certain Redevelopment Arearedevelopment project costs (as defined in the Act) incurred pursuant to theRedevelopment Plan; andWHEREAS, W9/MLM Real Estate Limited Partnership, a Delaware limitedpartnership("Developer") presentlyownsandoperatestheeight hundredseventy-eight thousandthreehundredthirty-eight (878,338) squarefoot BrickyardRetailCenter located at 6465 West Diversey Avenue, Chicago, Illinois, 60607 (the"Property"). Developerplanstocompletelydemolishall structuresonthePropertyand regrade the Property so it will be more accessible to vehicular trafficfromadjacent streets. Developer plans to construct an approximately live hundredseventy-five thousand (575,000) square foot retail center that will includeapproximately two thousand three hundred six (2,306) parkingspaces. The newretailcenter will incorporatemodernlayout and designfeaturesfavoredby today'ssuccessful retailers. The demolition, regrading and newconstruction work iscollectivelydefinedasthe"Project"; andWHEREAS, The Developer has proposedto undertakethe Project inaccordancewith the Redevelopment Plan and pursuant to the terms and conditions of aproposedredevelopment agreement to beexecutedbytheDeveloper andtheCity,to befinancedinpartbytheissuanceof notes (asdefinedbelow); andWHEREAS, Pursuant to Resolution 03-CDC-04 adopted by the CommunityDevelopment Commission of the City of Chicago (the "Commission") onJanuary 14,2003, theCommissionrecommended that theDeveloper bedesignated1810 JOURNAL--CITY COUNCIL--CHICAGO 6/4/2003astheDeveloperfortheProject, andauthorizedtheCity'sDepartment of Planningand Development ("D.P.D.") to negotiate, execute and deliver a redevelopmentagreementwiththeDeveloperfor theProject; andWHEREAS, In consideration of redevelopment project costs for the Projectincurred or tobe incurred by or on behalf of theDeveloper,the City agrees toissue,and the Developer agrees toacquire, according to certain terms and conditions, thenotes (asdefinedbelow) asa taxincrementrevenueobligations; andWHEREAS, TheCitywill receivenocashproceedsinexchangefor thenotes (asdefinedbelow) to beissuedpursuant to thisordinance; now, therefore,BeIt OrdainedbytheCityCouncil of theCity of Chicago:SECTION 1. Theaboverecitals are incorporated herein and madeapart hereof.SECTION 2. TheDeveloper is hereby designated as thedeveloperfor theProjectpursuantto Section5/11-74.4-4oftheAct.SECTION 3. TheCommissionerofD.P.D. (the"Commissioner") or a designeeofthe Commissioner are each hereby authorized, with the approval of the City'sCorporation Counsel as toformandlegality, to negotiate, executeanddeliver aredevelopment agreement betweentheDeveloper andtheCity insubstantially theform attached hereto as Exhibit A and made a part hereof (the "W9/MLMRedevelopment Agreement"), and such other supporting documents as may benecessary or appropriate to carry out and comply with the provisions of theW9/MLMRedevelopment Agreement, withsuchchanges, deletionsandinsertionsas shall be approved by the persons executing the W9/MLMRedevelopmentAgreement andsupportingdocuments.SECTION 4. TheCityCouncil herebyfindsthattheCityisauthorizedto issueits taxincrement allocation revenue obligations in an aggregate amount not toexceedTwenty-sixMillion FiveHundredThousandDollars ($26,500,000) for thepurposeof payinga portionof theeligiblecostsincludedwithintheProject.SECTION 5. There shall beborrowedfor and onbehalf of theCity anaggregateamount not to exceed Twenty-six Million Five Hundred Thousand Dollars($26,500,000) for the payment of aportionof theeligible costsincluded withintheProject andthenotesof theCityshall beissuedupto saidamountandshall bedesignated:a. Tax Increment Allocation Revenue Note (W9/MLMReal Estate LimitedPartnership Redevelopment Project), Series A, Registered Number R-I for aprincipal amount not toexceedNineteenMillionFive Hundred Thousand Dollars($19,500,000) (the"Redevelopment Note"), and6/4/2003 REPORTS OF COMMITTEES 1811b. Tax Increment Allocation Revenue Note (W9/MLMReal Estate LimitedPartnershipRedevelopment Project) TaxableSeries B, RegisteredNumberR-I foraprincipal amount nottoexceedSevenMillionDollars($7,000,000) (the "ProjectNote").TheRedevelopmentNote andtheProjectNote arealsoreferredtohereineach asa "Note", and collectively as the "Notes". The Notes shall be dated the date ofdeliverythereof, andshall alsobear thedateofauthentication, shall bein fullyregisteredform, shall beinthedenominationof theoutstanding principal amountthereof andshall becomedueandpayableasprovidedtherein.The Redevelopment Note shall bear interest at the rate as calculated in theW9/MLMRedevelopment Agreement but not to exceed eight and seventy-fivehundredths percent(8.75%) per annum computedonthebasisof athree hundredsixty (360) day year of twelve (12) thirty (30) day months. Interest on theRedevelopment Noteshall not besubject to federal incometaxes.The Notes shall be subject to such terms as are set forth in the W9/MLMRedevelopment Agreement and this ordinance, subject to such changes andadditionsasaresetforthina BondOrderof theCityexecutedbytheComptrollerandtiledwiththeCityClerk atthetimeof issuanceof eachNote. Theprovisionsoftherespective BondOrders shall besubject to theparametersset forth intheW9/MLMRedevelopment Agreement andthisordinance.The Project Note shall bear interest at therateas calculatedinthe W9/MLMRedevelopment Agreement but not to exceed nine and seventy-five hundredthspercent (9.75%) per annumcomputedonthebasisofa threehundredsixty(360)day year of twelve(12) thirty(30) day months. Interest ontheProjectNoteshall besubject tofederal incometaxes.Theprincipal of andinterestoneachNoteshall bepaidbycheckordraft of theComptroller ofthe City, as registrar andpayingagent (the "Registrar") (or, at theCity's sole election,by wire transfer of funds), payable in lawful money of the UnitedStates of America tothepersonin whose name suchNote isregistered at thecloseof business on the lifteenth (15th) day of the month immediately prior to theapplicablepayment date; provided, that the final installment of the principal andaccruedbut unpaidinterestof suchNoteshall bepayableinlawful moneyof theUnited States ofAmericaat the principal office of the Registrar or as otherwisedirectedby theCity.The seal of theCity shall be affixed toorafacsimilethereof printed oneachNote,andeachNote shall besignedby the manualor facsimilesignatureof theMayor oftheCity andattestedby themanual orfacsimilesignatureof theCityClerkof theCity, andincaseanyofficer whosesignatureshall appearonanysuchNoteshall1812 JOURNAL--CITY COUNCIL--CHICAGO 6/4/2003cease to be such officer before the delivery of the Note, such signature shallnevertheless be valid andsufficient for allpurposes, thesame asif suchofficer hadremained inoffice untildelivery.EachNoteshall havethereona certificateof authenticationsubstantiallyintheformhereinafterset forthdulyexecutedbytheRegistrar, asauthenticatingagentof theCity for suchNote, andshowing the dateof authentication. NoNoteshall bevalidorobligatoryfor anypurposeorbeentitledto anysecurityorbenefit underthisordinance unlessanduntilsuchcertificateof authenticationshallhavebeenduly executed by the Registrar by manual signature, and such certificate ofauthenticationupontheNoteshall beconclusiveevidencethattheNotehasbeenauthenticatedanddelivered underthisordinance.SECTION 6. TheCity shall cause books(the"Register") for theregistrationof theNotes(totheextent suchtransferispermitted under the W9/MLMRedevelopmentAgreement) asprovidedinthisordinanceto bekept at theprincipal officeoftheRegistrar, whichis hereby constituted and appointed the registrar of the City for theNotes. The Registrar shall maintain a list of the names and addresses of theregisteredowner(s) fromtimetotimeof eachNote and upontransfershall add thename and address of the new registered owner and eliminate the name and addressofthetransferor. The Cityis authorizedto prepare, andthe Registrar shall keepcustody of, multipleNote blanksexecutedby theCity for use inthe transfer of theNotes.Uponsurrenderfor transfer of anyNoteauthorizedunderthisordinance attheprincipal officeof theRegistrar, duly endorsedby, or accompaniedby: (i) awritteninstrument orinstruments oftransfer informsatisfactoryto the Registrar; (ii) aninvestment representationinformsatisfactorytotheCity and duly executedby theregistered owner or hisattorney duly authorized in writing; (iii) the written consentof theCity evidencedby the signature of the Commissioner(or hisor her designee)on the instrument of transfer, and(iv) any deliveries required under this ordinance,theCity shallexecute andtheRegistrar shall authenticate, date anddeliver in thenameof any suchauthorizedtransfereeor transferees, anewfullyregisteredNoteofthe samematurity, ofauthorizeddenomination, for a like aggregate principalamount. TheexecutionbytheCityofa fully registeredNote shall constitutefullanddueauthorizationof suchNoteandtheRegistrarshall therebybeauthorizedto authenticate, date and deliver the Note, provided, however, that the principalamount of theNoteauthenticatedbytheRegistrarshallnot exceedtheauthorizedprincipal amount of theNotelesspreviousretirements. TheRegistrarshall not berequiredto transfer or exchange anyNote during theperiod beginning at thecloseof business on the fifteenth ( 15th) day of the month immediately prior to thematuritydateof theNotenorto transferorexchangetheNoteafternoticecallingtheNotefor redemptionhasbeenmade, norduringa periodof five (5) daysnextpreceding mailing of anoticeforredemptionof principal of theNotes. No beneficialinterests intheNotesshallbeassigned, except inaccordancewiththeproceduresfor transferringthe Notes describedabove.6/4/2003 REPORTS OF COMMITTEES 1813Thepersonorentityinwhosenamea Noteshall beregisteredshall bedeemedandregardedas theabsoluteowner thereoffor all purposes, andpayment oftheprincipal of the Notes shall be made only to the order of the registered owner thereofor his legal representative. All such payments shall be valid and effectualtosatisfyand discharge the liability upon theNotestothe extent of the sum or sumssopaid.Noservicecharge shall bemadefor any transfer of theNotes, but theCity or theRegistrar may require payment of a sumsufficient to cover any tax or othergovernmental chargethatmaybeimposedinconnectionwithanytransferof theNotes.SECTION 7. The principal of the Notes shall be subject to determination,reduction and prepayment as provided in the formof the Notes attached to theW9/MLM Redevelopment Agreement as (Sub)Exhibit M- 1 and (Sub)Exhibit M-2, andas provided in the W9/MLM Redevelopment Agreement, including withoutlimitation, withrespecttotheProjectNote, Sections4.03, 4.05and15.21, thereof.As directed bythe Commissioner, the Registrar shall proceed with redemptionswithoutfurther noticeordirectionfromtheCity.SECTION8. The Redevelopment Note shall be preparedin substantiallytheform attached hereto as Exhibit B. The Project Note shall be prepared insubstantiallytheformattachedheretoas Exhibit C.SECTION9. pursuanttothe W9/MLMRedevelopment Agreement, theDeveloperhas agreed to performconstruction and redevelopment work on the propertynecessary for the project. The eligible costs of such construction and redevelopmentuptothe amount nottoexceed Twenty-sixMillionFive Hundred Thousand Dollars($26,500,000) shall be deemed to be a disbursement of the proceeds of therespective Notes, and the outstanding principal amount of aNote shall be increasedbytheamountof suchadvance. Theprincipalamountoutstandingofa Noteshallbetheamount of principal indicatedinsuchNoteonitsdateof issuance, orthesumof advances made pursuant to a form of certificate of expenditure (the"Certificateof Expenditure")executed by theCommissioner(or hisor her designee)and authenticated by the Registrar, in accordance with the W9/MLMRedevelopment Agreement, minus anyprincipal amount paidonsuchNote andother reductions in principal as provided in the W9/MLM RedevelopmentAgreement. ACertificateof Expenditureshall not bevalidorobligatory underthisordinance unlessor until authenticatedby theRegistrarby manual signature. TheCity shall not executeCertificatesof Expenditure that total in excessof Twenty-sixMillion Five Hundred Thousand Dollars ($26,500,000). Upon execution of aCertificate of Expenditure, the Registrar shall promptly send the Certificate ofExpenditure to the Registered Owner and retain a copywith the Register. TheCertificateof Expenditurefor theRedevelopment Noteshall beinsubstantiallytheformattachedheretoas Exhibit D. The Certificate of Expenditure for the ProjectNoteshall besubstantiallyintheformattachedheretoas Exhibit E.1814 JOURNAL--CITY COUNCIL--CHICAGO6/4/2003SECTION 10. The Registrar shall note on the payment schedule attached toeachNote the amount of any payment of principal or interest on such Note, including theamountof any redemption, and the amountof any reductioninprincipal pursuanttotheW9jMLMRedevelopment Agreement.SECTION 11. TheNoteshereby authorizedshall be executed asprovided inthisordinance and the W9jMLM Redevelopment Agreement and thereupon be depositedwiththeCommissioner, andbysaidCommissionerdeliveredto theDeveloper.SECTION 12. (a) Special Tax Allocation Fund. Pursuant to the T.I.F.Ordinance, the City has created a special fund, designated as theDiversey/Narragansett Redevelopment Project Area Special TaxAllocation Fund (the"DiverseyjNarragansett T.I.F. Fund").The Comptroller of the City is hereby directed to maintain theDiverseyjNarragansett T.I.F. Fund as a segregated interest-bearing account,separateandapart fromthe General Fundor anyother fund of theCity, with abank which is insured by the Federal Deposit Insurance Corporation or itssuccessor. Pursuant to the T.I.F. Ordinance, all incremental ad valoremtaxesreceived by the City for the Redevelopment Area are to be deposited into theDiverseyjNarragansett T.I.F. Fund.(b) Developer Account. There is hereby created withinthe Diversey/NarragansettT.I.F. Funda special account to beknownas the "W9 jMLMReal Estate LimitedPartnershipDeveloper Account". The City shall promptly designate and deposit intotheW9jMLMReal EstateLimitedPartnershipDeveloperAccount theincrementaltaxesdefined asthe"Available Incremental Taxes"inthe W9jMLM RedevelopmentAgreement whichhavebeendepositedintotheDiverseyjNarragansett T.I.F. Fundaftertheexecutionanddeliveryof theW9jMLMRedevelopmentAgreement.(c) Pledge Of W9jMLMReal Estate Limited Partnership Developer Account.TheCityherebyassigns, pledgesanddedicatestheW9jMLMReal EstateLimitedPartnership Developer Account, together with all amounts on deposit in theW9/MLMReal EstateLimitedPartnershipDeveloperAccount: (i) tothepayment oftheNotes, subject totheprovisions andlimitationsof the W9jMLMRedevelopmentAgreement. Any monies ondeposit inthe W9jMLM Real Estate Limited PartnershipDeveloper Account that are forfeited pursuant to the terms of the W9jMLMRedevelopment Agreement shall be transferred and deposited in theDiverseyjNarragansett T.I.F. Fund. Upon deposit, the monies on deposit in theW9/MLMReal EstateLimitedPartnershipDeveloper Account maybe investedashereinafter provided. Interest and income on any such investment shall bedepositedintheDiverseyjNarragansett T.I.F. Fund. All moniesondeposit intheW9/MLMReal EstateLimitedPartnershipDeveloper Account shall beusedto paythe principal of and interest on the Notes, at maturity or upon payment orredemptionpriorto maturity, eachinaccordancewithitsrespectiveterms, whichpayments fromthe W9jMLM Real Estate Limited PartnershipDeveloper Account are6/4/2003REPORTS OF COMMITTEES 1815herebyauthorizedandappropriatedbytheCity. Upon payment ofall amounts dueunder theNotes in accordance with their respective terms(orthe terminationof theCity's obligationtomake suchpayments), the amountsondeposit in the W9/MLMReal Estate Limited Partnership Developer Account shall be deposited in theDiversey/Narragansett T.I.F.Fund ofthe City and the W9/MLM Real Estate LimitedPartnershipDeveloperAccount shall beclosed.SECTION 13. The Notes are special limited obligations of the City andarepayable solely from amounts on deposit in the W9/MLMReal Estate LimitedPartnershipDeveloper Account (or suchotherfundsintheDiversey/NarragansettT.LF. Fund astheCity, initssole discretion, may determine), andshallbeavalidclaim of theregistered owner thereof only against said sources. TheNotesshall notbe deemed to constitute an indebtedness or a loan against the general taxingpowersorcredit of theCity, withinthemeaningofanyconstitutional orstatutoryprovision. Theregistered ownersof theNotesshall not have therighttocompel anyexercise of the taxing power of the City, the State of Illinois or any politicalsubdivisionthereofto paytheprincipal of orinterestontheNotes.SECTION 14. Monies on deposit in the W9/MLM Real Estate Limited PartnershipDeveloper Account may be invested as allowedunder Section 2-32-520of theMunicipal Code of the City of Chicago (the "Municipal Code"). Each suchinvestment shall matureona date prior to thedate onwhichsaidamounts areneededto pay theprincipal ofor interest ontheNotes.SECTION 15. TheRedevelopmentNote is not a"private activity bond" asdefinedinSection 141(a) of theInternal RevenueCodeof1986, asamended(the"Code").In support of such conclusion, the City certifies, represents and covenants asfollows:(a) Nodirect orindirect paymentsareto bemadeontheRedevelopment Notewith respecttoany private business useby any personother thanastate or localgovernmental unit.(b) None of theproceeds of the Redevelopment Note is to beused, directlyorindirectly, to make or finance loans to persons other than a state or localgovernmental unit.SECTION 16. As to the Redevelopment Note only, the City certifies andcovenants asfollowswith respecttothe requirementsofSection148(f) of theCode,relatingtothe rebateof "excess arbitrageprofits"(the "RebateRequirement") totheUnited States:1816 JOURNAL--CITY COUNCIL--CHICAGO 6/4/2003(a) Unless anapplicable exceptiontotheRebateRequirement isavailabletotheCity, theCitywill meet theRebateRequirement.(b) Relatingto applicable exceptions, the Comptroller is herebyauthorized tomake such elections under the Code as such officer shall deem reasonable and inthebest interests of theCity. If suchelectionmay result ina"penalty inlieuofrebate" as provided in the Code, and such penalty is incurred (the "Penalty"), thentheCityshall paysuchPenalty.(c) The officers of the City shall cause tobe established at such time and in suchmanner as they may deem necessary or appropriate hereunder, arebate fund, andsuch officers shall further, not less frequently than annually, cause to betransferredto therebatefundtheamountdeterminedto betheaccruedliabilityunder theRebateRequirement or thePenalty. Saidofficersshall cause tobe paidtotheUnited States, fromtimetotime as required, amountssufficienttomeet theRebateRequirement or to paythePenalty.(d) Interest earningsinthe W9/MLMRealEstateLimitedPartnershipDeveloperAccount are hereby authorized tobe transferred, without further order or directionfromtheComptroller, fromtime to time as required, to therebatefundfor thepurposeshereinprovided; andother fundsof theCityarealsohereby authorizedto beused to meet the Rebate Requirement or to paythe Penalty, but only ifnecessary after application of investment earnings as aforesaid and only ifappropriatedbytheCityCouncil.SECTION 17. TheCitycovenantsthat it: (i) will takethoseactionswhicharenecessary tobe taken (and avoid those actions which it is necessary toavoid taking)so that interest on theRedevelopmentNotewill not be or become included in grossincome for federal income tax purposes under existing lawincluding, withoutlimitation, theCode; (ii) will takethose actions reasonably withinitspower totakewhich are necessary to be taken (and avoid taking those actions which arereasonablywithinitspowertoavoidtakingandwhichit isnecessaryto avoid) sothatinterest ontheRedevelopment Notewill not beor becomeincludedingrossincome for federal incometaxpurposesunderthefederal incometaxlaws as ineffect fromtimetotime; and(iii) will takenoactioninthe investment of any fundor account of theCity which would result inmaking interest on theRedevelopmentNotesubject tofederal incometaxesby reasonof causing theRedevelopmentNoteto be an "arbitrage bond" within the meaning of Section 148 of the Code. Infurtherance oftheforegoing provisions, but without limitingtheir generality, theCity agrees: (a) through its officers, to make such further specific covenants,certificationsandrepresentationsas shall betruthful, andassurancesasmaybenecessary or advisable; (b) to comply with all representations, covenants andassurancescontained incertificates or agreements asmay be preparedby counsel6/4/2003 REPORTSOFCOMMITTEES 1817approving theRedevelopment Note; (c) toconsult withsuch counsel andtocomplywithsuchadvice as may begiven; (d)tofile suchforms, statements and supportingdocuments as may be required and in atimely manner; and(e) if deemed necessaryor advisable byits officers, to employ and pay fiscal agents, financial advisors,attorneysandotherpersonsto assisttheCityinsuchcompliance.SECTION 18. TheCityrecognizesthat Section 149(a) of theCoderequirestheRedevelopment Note tobe issued and toremain in fully registered form in order thatinterest thereonisexempt fromfederal incometaxation under lawsinforceat thetimetheRedevelopment Noteisdelivered. Inthisconnection, theCityagreesthatit will not takeanyaction to permit theRedevelopment Note to beissuedin, orconvertedinto, bearerorcouponform.SECTION 19. The provisions of this ordinance shall constitute a contractbetweentheCity andtheregisteredowner(s) of a Note. All covenantsrelatingto aNoteareenforceablebytheregisteredowner(s) ofsuchNote.SECTION 20. TheMayor, theComptroller, theCityClerk, theCommissioner (orhis or her designee)and the other officers of theCity are authorizedtoexecute anddeliver on behalf of the City such other documents, agreements and certificates andtodosuch other thingsconsistent withthe termsof thisordinance as suchofficersand employees shall deem necessary or appropriate in order toeffectuate the intentandpurposes of thisordinance.SECTION 21. If anyprovisionof thisordinanceshall beheldto beinvalidorunenforceablefor anyreason, theinvalidityorunenforceabilityof suchprovisionshall not affect anyof theotherprovisionsof thisordinance.SECTION 22. All ordinances, resolutions, motions or orders inconflict withthisordinanceareherebyrepealedto theextent of suchconflict. Noprovisionof theMunicipal Code or violation of any provision of the Municipal Code shall be deemedto impair the validity of this ordinance or the instruments authorized by thisordinance or toimpair thesecurity for or payment of the instruments authorized bythis ordinance; providedfurther, however, thattheforegoingshall not bedeemedtoaffect the availability of any other remedy or penalty forviolationof any provisionof theMunicipal Code.SECTION 23. This ordinance shallbeinfull forceandeffect immediately uponits passage.Exhibits "A", "8", "C", "0"and"E"referredtointhisordinanceread asfollows:r )Brrckvard RDAR-IO wpd01 BRICKYARD PROJECTDIVERSEYINARRAGANSETTREDEVELOPMENT PROJECT AREAW9IMLM REAL ESTATE LIMITED PARTNERSHIPANDW9IMLM BRICKYARD, L.L.c.REDEVELOPMENT AGREEMENTDATED AS OF JANUARY 30,2004BY AND BETWEENTHE CITY OF CHICAGOAND, JOINTLYAND SEVERALLY,W9/MLM REAL ESTATE LIMITEDPARTNERSHIP,a Delaware Limited PartnershipANDW9/MLM BRICKYARD, L.L.c.,a Delaware Limited Liability Companyf hI' \\J' prepared by.mdJth.:r rcuJru, ngrerurnto\\ I1liJm 1\ 'hherg, I'q( 11\ 01\ h,CJiJuIJ\\ DepartmentIcI '1l'r1hJ R,"Hn('h/Lago II. I)/INI]BRICKYARD PROJECTW9IMLM REAL ESTATE LIMITED PARTNERSHIPANDW9IMLM BRICKYARD, L.L.C.REDEVELOPMENT AGREEMENTTABLE OF CONTENTSPAGEARTICLE ONE: INCORPORATION OF RECITALS 3ARTICLE TWO: DEFINITIONS 3ARTICLE THREE: THE PROJECT 33.01 The Project 33.02 Scope Drawings and Plans and Specifications 33.03 Project Budget 43.04 Change Orders 43.05 DPDApproval 53.06 Other Approvals 53.07 Progress Reports and Survey Updates 53.08 Inspecting Agent or Architect 53.09 Barricades 53.10 Signs and Public Relations 63.11 Utility Connections 63.12 Permit Fees 63.13 Accessibility for Disabled Persons 63.14 Proiect Security 6ARTICLE FOUR: FINANCING 64.01 Total Project Cost and Sources of Funds 64.02 Developer Funds 74.03 City Funds 74.04 Sale or Transfer of the Property or Project by Developer 144.05 City Rightsto Discontinue or Suspend Payments under the Project Noteor Pay-As-You-Go Reimbursement 154.06 Treatment of Prior Expenditures 164.07 Cost Overruns 174.08 TIF Bonds 17ARTICLE FIVE: CONDITIONS PRECEDENT 175 01 Project Budget 175 02 Scope Drawings andPlans and Specifications 17ii5.03 Other Governmental Approvals 175.04 Financin(: 185.05 Acquisition and Title 185.06 Evidence of Clear Title 185.07 Surveys 195.08 Insurance 195.09 Opinions of Developer's Counsel 195.10 Evidence of Prior Expenditures 195.11 Financial Statements 195.12 Additional Documentation . 195.13 Environmental Audit 195.14 Entitv Documents 195.15 Liti(:ation 205.16 Preconditions of Acceptin(: Certificates of Expenditure 20ARTICLE SIX: AGREEMENTS WITH CONTRACTORS 216.01 Bid Requirement for General Contractor and Subcontractors 216.02 Construction Contract 226.03 Performance and Payment Bonds 226.04 Employment Opportunity 226.05 Other Provisions 22ARTICLE SEVEN: COMPLETION OF CONSTRUCTION 227.01 Certificate of Completion of Construction 227.02 Effect of Issuance of Certificate; Continuio& Obli(:atioos 237.03 Failure to Complete 237.04 Notice of Expiration of Term of A&reement 24ARTICLE EIGHT: REPRESENTATIONS, WARRANTIES AND COVENANTSOF DEVELOPER. 248.01 General 248.02 Covenant to Redevelop 268.03 Redevelopment Plan 268.04 Use of City Funds 268.05 Other Bonds 268.06 Employment Opportunity 278.07 Employment Profile 278.08 Prevailin, WaKe 278.09 Arms-LenKth Transactions 278.10 No Conflict of Interest 288.11 Disclosure of Interest 28R.t2 Financial Statements . 288.13 Insurance , 28iii8.14 Non-Governmental Charees 288.15 Developer's Liabilities 298.16 Compliance with Laws 298.17 Recordine and Filine 298.18 Real Estate Provisions 298.19 Reserved 318.20 Job Readiness Proeram 318.21 Reserved 318.22 Broker's Fees 318.23 No Business Relationship with City Elected Officials 318.24 Survival of Covenants 31ARTICLE NINE: REPRESENTATIONS, WARRANTIES AND COVENANTSOF CITY 319.01 General Covenants 319.02 Survival of Covenants 31ARTICLE TEN: DEVELOPER'S EMPLOYMENT OBLIGATIONS 3210.01 Employment Opportunity 3210.02 City Resident Construction Worker Employment Requirement 3310.03 Developer's MBEIWBE Commitment 35ARTICLE ELEVEN: ENVIRONMENTAL MATTERS 3711.01 Environmental Matters 37ARTICLE TWELVE: INSURANCE 3712.01 Insurance Requirements 37ARTICLE THIRTEEN: INDErvtNIFICATION " 3713.01 General Indemnity 37ARTICLE FOURTEEN: MAINTAINING RECORDS/RIGHT TO INSPECT 3814.01 Books and Records 3814.02 Inspection Rights 39ARTICLE FIFTEEN: DEFAULT AND REMEDIES 3915.01 Events of Default 3915.02 Remedies 4015.03 Curative Period 40ARTICLESIXTEEN: MORTGAGING OF THE PROJECT 4116.01 :\'fortesg;"g of the Proiect 41ARTICLE SEVENTEEN: NOTICES 4217.01 Notices 4217.02 Developer Requests for City or DPD Approval 44ARTICLE EIGHTEEN: ADDITIONAL PROVISIONS 4418.01 Amendments 4418.02 Complete Agreement. Construction. Modification 4418.03 Limitation of Liability 4418.04 Further Assurances 4518.05 Waivers 4518.06 Remedies Cumulative 4518.07 Parties in InterestlNo Third Party Beneficiaries 4518.08 Titles and Headings 4518.09 Counterparts 4518.10 Counterpart Facsimile Execution 4518.11 Severability 4618.12 Conflict 4618.13 Governing Law 4618.14 Form of Documents 4618.15 Assignment 4618.16 Bindinc Effect 4618.17 Force Majeure 4618.18 Exhibits and Schedules 4718.19 Business Economic Support Act 4718.20 Approval 4718.21 Construction of Words 4718.22 Date of Performance 4718.23 Survival of Agreements 4818.24 Eguitable Relief 4818.25 Venue and Consent to Jurisdiction 4818.26 Costs and Expenses 48SchedulesSchedule ASchedule BExhibitsExhibit AExhibit B-1Exhibit B-2Exhibit B-3Exhibit CExhibit D-lExhibit D-2Exhibit EExhibit FExhibit GExhibit HExhibit I-IExhibit 1-2Exhibit .rExhibit KExhibit LExhibit NI-lExhibit 1\1-2E'{hibit~BRICKYARD PROJECTW9IMLM REAL ESTATE LIMITED PARTNERSHIPANDW9/MLM BRICKYARD, L.L.c.REDEVELOPMENT AGREEMENTLIST OFSCHEDULES AND EXHIBITSDefinitionsInsurance Requirements"'Redevelopment Area Legal Description"Legal Description of the PropertyBusiness Planned Development No. 127, as amendedSite Planfor the ProjectRedevelopment Plan"Project Budget"'Construction (MBE/WBE) Budget"'TIF-Funded ImprovementsConstruction ContractApproved Prior ExpendituresPermitted LiensOpinion of Counsel for W9/MLM Real Estate Limited PartnershipOpinion of Counsel for W9/MLM Brickyard, L.L.C.ReservedForm of Payment and PerformanceBondReservedForm of Redevelopment Note and related Certificate of ExpenditureForm of Project Note and related Certificate of ExpenditureForm of Internal Rate of Return Worksheet(,'\n asteriskt "') indicates which exhibits arc to he recordcd.)[leaveblank J" ~ 5" 'pace for recorder's office)This agreement was preparedby andafter recordingreturn toWilhamANyberg,EsqCity of ChicagoLaw Department12J North LaSalle Street. Room 600Chicago, IL60602BRICKYARD PROJECTW9IMLM REAL ESTATE LIMITED PARTNERSHIPANDW9IMLM BRICKYARD, L.L.C.REDEVELOPMENT AGREEMENTThis W9/MLMReal Estate Limited Partnership and W9/MLM Brickyard, L.L.C.Redevelopment Agreement (the "Agreement") is made as of this 30th day of January, 2004, byand between the City of Chicago, an Illinois municipal corporation (the "City"), through itsDepartment of Planning and Development ("DPD"), and W9/MLM Real Estate LimitedPartnership, a Delaware limited partnership ("W9IMLM Real Estate Limited Partnership")andW9/MLMBrickyard, L.L.C.,a Delaware limited liability company, ("W9IMLM Brickyard,L.L.C."), jointly and severally as to all rights and liabilities under this Agreement. W9/MLMBrickyard, L.L.C. is substantially wholly-owned by and is an Affiliate (as defined in thisAgreement) ofW9/MLM Real EstateLimited Partnership. For purposes of this Agreement,W9/MLMReal Estate LimitedPartnership and W9!MLM Brickyard. L.L.c. are defined, jointlyand severally, as "Developer".RECITALS:A. Constitutional Authority: As a home rule unit of government under Section6(a), Article VII of the1970 Constitution of the State of Illinois (the "State"), the City has thepower to regulate for the protection of the public health, safety, morals, and welfare of itsinhabitants and, pursuant thereto, has the oo\\'cr to eneournonri'f'lt... ,1,,,,,1,, __ .-...,-,.enhance the local tax base and create employment opportunities, and to enter into contractualagreements with private parties in order to achieve these goals.B. Statutory Authority: The City is authorized under the provisions of the TaxIncrement Allocation Redevelopment Act, 65 ILCS 5/11-74.4-1et seg. (2002' State Bar Edition),as amended from time-to-time (the"Act"), to finance projects that eradicate blighted conditionsthrough the use of tax increment allocation financing for redevelopment projects.C. City Council Authority: To induce redevelopment under the provisions of theAct, the City Council of the City (the "City Council") adopted the following ordinances onFebruary 5, 2004: (I) "An Ordinance of the City of Chicago, Illinois Approving aRedevelopment Plan for the Diversey/Narragansett Redevelopment Project Area"; (2)"AnOrdinance of the City of Chicago, Illinois Designating the Diversey/Narragansett RedevelopmentProject Area as a Redevelopment Project Area Pursuant to Tax Increment AllocationRedevelopment Act"; and (3) "An Ordinance of the City of Chicago, Illinois Adopting TaxIncrement Allocation Financing for the Diversey/Narragansett Redevelopment Project Area" (the"TIF Adoption Ordinance"). Collectively the three ordinances are defined as the "TIFOrdinances". The redevelopment project area (the "Redevelopment Area") is legally describedin Exhibit A.D. The Project: Developer presently owns and operates the 878,338 square footBrickyard retail center located at 6465W. Diversey Avenue, Chicago, Illinois (the "Property").Legal title to the Property is held by W9/MLM Brickyard, L.L.c. The Property is approximately50 acres, and is located wholly within the Redevelopment Area. A legal description of theProperty is stated in Exhibit B-1. The Property is subject to the zoning requirements stated inBusiness Planned Development No. 127 dated July 24,1975, as amended, (the "PD"). ThePDis Exhibit B-2. The Property is significantly under-occupied at present because several anchortenants have closed their stores and because the Property is characterized by an antiquated layoutandfunctionally obsolete structure. Developer plans to completely demolish all structures on theProperty and regrade the Property so it will be more accessibleto vehicular trafficfromadjacentstreets. Developer plansto construct an approximately 575,000 square foot retail center that willinclude approximately 2,306 parking spaces. The new retail center will incorporate modemlayout and design featuresfavored by today's successful retailers. The demolition, regrading andnew construction work is collectively defined as the "Project". A site plan for the Project datedDecember17,2002 (the "Site Plan") is Exhibit B-3. As part of the overallProject, Developerplansto conveytwo of the proposed anchor sites (referred to as Anchor BuildingI andAnchorBuilding 2 on the Site Plan)upon the completion of the anchorbuildingsto the identified end-users, When completed, the Project will be managed and operated by Mid-America AssetManagement, an affiliate of Mid-America Real Estate Corp. The completion of the Projectwouldnot reasonablybe anticipated to occur without the financing contemplated in thisAgreement.E. Redevelopment Plan: The Project will be carried out in accordance with thisAgreement and the City of Chicago Diverscy/Narragansett Redevelopment ProjectAreaTax1agreed to approve them as a post-closing item. After such initial approval. subsequent proposedchanges to theScope Drawings or Plans andSpecifications within the scope of Section 3.04 willbe submitted to DPD as a Change Order under Section 3.04. The Scope Drawings and Plans andSpecifications will at alltimes conform to the Redevelopment Plan as in effect on the date of thisAgreement, and all applicable Federal, Stateandlocal laws, ordinances and regulations.Developer willsubmit all necessary documents to the City's Department of Buildings,Department of Transportation, andto such other City departments or governmental authorities asmaybe necessaryto acquire building permits andother required approvals for the Project.3.03 Project Budeet. Developer has furnished to OPO, andDPD hasapproved, aProject Budget which is Exhibit 0-1, showing totalcosts for the Project in an amount not lessthan $109,959,532. Developer hereby certifies to the City that: (a) it hasLender Financingand/or Equity in an aggregate amount sufficient to pay for all Project costs; and(b) the ProjectBudget is true, correct and complete in all material respects. Developer will promptly deliver toDPD copies of anyChange Orders with respect to the Project Budget as provided in Section 3.04.3.04 Chanee Orders.(a) Except as provided in subparagraph (b) below, all Change Orders (anddocumentation substantiating the needandidentifying the source of funding therefor)relating to material changes to the Project must be submitted by Developer to DPDconcurrently with the progress reports described in Section 3.07;provided, however, thatany Change Orders relating to any of the following must be submitted by Developer toOPD for OPD's prior written approval: (i) a reduction by more than five percent (5%) inthe square footage of the Project, or (ii) a change in the basicuse of theProperty andimprovements, (iii) an increase in the Project budget by morethan10% or (iv) a delay inthe Project completion date of morethan120 days. DPO will respond to Developer'srequest for written approval within 30 days from receipt of such request by granting ordenying such request or by requesting additional information fromDeveloper. If DPDdoesnot respond to Developer's request, and if Developer has complied with therequirements for notice stated in Section 17.02, then Developer's request will be deemedto havebeenapproved by DPD. Developer willnot authorize or permit the performanceof any work relating to any Change Order requiring DPD's prior written approval or thefurnishing of materials in connection therewith prior to the receipt by Developer of OPO'swritten approval. TheConstruction Contract, and each contract between theGeneralContractor andanysubcontractor, will contain a provision to this effect. AnapprovedChange Order will notbe deemed to implyanyobligation on the part of theCity toincrease the amount of CityFundsor to provide anyother additional assistance toDeveloper.(b) Notwithstanding anything to the contrary in this Section 3.04, ChangeOrders costing lessthan TwoHundred Fifty Thousand Dollars ($250,000) each, to anaggregate amount of Two ~ t i l l i o n Dollars ($2,000.000). do not requireDPD's priorwrittenapproval as statedin this Section J 04, but DPD must be notified in writing of allsuch Change Orders and Developer, in connection with such notice,mustidentify to OPDthe source of fundingthereforin the progress reports describedin Section 3.07.3.05 OrD Approval. Any approvalgranted by OPO under this Agreement of theScope Drawings, Plans and Specifications and the Change Orders is for the purposes of thisAgreement only, and any such approval does not affect or constitute any approval required byany other City department or under any City ordinance, code, regulation, or any othergovernmental approval, nor does any such approval by OPD under this Agreement constituteapproval of the utility, quality, structural soundness, safety, habitability, or investment quality ofthe Project. Developer will not make any verbal or written representation to anyone to thecontrary .3.06 Other Approvals. Any DPD approval under this Agreement will haveno effectupon, nor will it operate as a waiver of, Developer's obligations to complywith the provisions ofSection 5.03 (Other Governmental Approvals).3.07 rroeress Reports and Survey Updates. After the Closing Date, on or before the15th day of each reporting month, Developer will provide DPD with written quarterlyconstruction progress reports detailing the status of the Project, including a revised completiondate, if necessary (with any delay in completion date being considered a Change Order, requiringDPD's written approvalunder Section 3.04). Developer must also deliver to the Citywrittenprogress reportsby draw, but not less than quarterly, detailing compliance with the requirementsof Section 8.08 (Prevailing Wage), Section10.02 (CityResident Construction WorkerEmployment Requirement) and Section10.03 (Developer's MBE/WBE Commitment). If thereports reflect a shortfall in compliance with the requirements of Sections 8.08. 10.02 and10.03,thenthere must also be included a written plan from Developer acceptableto DPD to address andcure such shortfall. At Project completion, upon the request of DPD, Developer will provide 3copies of an updated Survey to DPD reflecting improvements made to the Property.3.08 Inspectine Aeent or Architect. The independent agent or architect (other thanDeveloper's architect) selectedby the lender providing Lender Financing will also act as theinspecting agent or architect for DPD for the Project, and any fees and expenses connected withits work or incurredby such independent agent or architect will be solely for Developer's accountand will be promptly paid by Developer. The inspecting agent or architect will perform periodicinspections with respect to the Project, providingwritten certificationswith respectthereto toDPD,prior to requests for disbursements for costs related to the Project.3.09 Barricades. Developer has installed a construction barricade of a type andappearance satisfactory tothe City and which barricade'Was constructedin compliance withallapplicable Federal,State or City laws, ordinances, rules and regulations. DPO retainsthe righttoapprovethe maintenance, appearance, color scheme, painting, nature, type, content, and design ofall barricades (other than the name and logo of the Project) installed after the date of this.vgrcerncnt.3.10 Sit:ns andPublic Relations. Developer will erect in a conspicuous location onthe Property duringthe Project a sign of commercially reasonable size and style, indicating thatfinancing has been provided by the City. The Cityreserves the right to include the name,photograph, artisticrendering of the Project and any other pertinent, non-confidential informationregarding Developer and the Projectin the City's promotional literature and communications.3.11 Utility Connections. Developer may connect all on-site water, sanitary, stormand sewer lines constructed as a part of the Project to City utility lines existing on or near theperimeter of the Property, provided Developer first complies with all Cityrequirementsgoverning such connections, including the payment of customary fees and costs related thereto.3.12 Permit Fees. In connection with the Project, Developer is obligated to pay onlythose building, permit, engineering, tap on, and inspection fees that are assessed on a uniformbasis throughout the City of Chicago and are of generalapplicability to other property within theCity of Chicago.3.13 Accessibility for Disabled Persons. Developer acknowledges thatit is in thepublic interest to design, construct and maintain the Project in a manner which promotes,enables, and maximizes universal access throughout the Project. Plans for all buildings on theProperty and relatedimprovements have been reviewed and approved by the Mayor's Office forPeople with Disabilities ("MOPD") to ensure compliance with all applicable laws andregulations related to accessfor persons with disabilities and to promote the highest standard ofaccessibility.3.14 Project Security. Prior to the issuance of the Certificate, Developer willberequired to submit a plan for 24-hour security for the Project to DPD for its review and approval.DPD wiUrespond to Developer's security plan submission within 30 days from receipt of suchplan by approving such plan, disapproving such plan or requesting additional information fromDeveloper. IfDPD does not respond to Developer's security plan submission, and if Developerhas complied with the requirements for notice stated in Section 17.02, then Developer's securityplan submission will be deemed to have been approved by DPD.ARTICLE FOUR: FINANCING4.01 Total Project Cost and Sources of Funds. The cost of the Project is estimatedto be $109,959,532 to be appliedin the manner statedin the Project Budget. Such costs willbefundedfrom the followingsourceswhen all anticipated Project financing has been completed:Equity (subject to Section 4.07)Lender FinancingTrF Financing NotesESTIMATED TOTAL$18,459.53265,000,00026,500,000 (J )SI09,959,532 (1)NOTE (I): All Project costs will be front-funded by Developer. All payments ofprincipal and interest on the Notes will occur after issuance of a Certificate of Completionas provided in Section 7.01, and subject to the terms and conditions of this Agreement.4.02 Developer Funds. Equity and Lender Financing, ifany, willbe used to pay allProject costs, including but not limited to costs ofTIF-Funded Improvements.4.03 City Funds.(a) Uses of CityFunds.(i) Any principal or interest paid under the Notes, and any other fundsexpended by the City under this Agreement or otherwise related to the Project orto the TIF-Funded Improvements are defined as "City Funds".(ii) CityFunds may be used to reimburse Developer onlyfor costs ofTIF-Funded Improvements that constitute Redevelopment Project Costs. Exhibit Estates, by line item, the TIF-Funded Improvements for the Project contingent uponreceipt by the City of documentation satisfactory in form and substance to DPDevidencing such costs and their respective eligibility as a Redevelopment ProjectCost. Reimbursement of costs through City Funds will be in the form of paymentof principal and interest under the Notes.(b) Sources of City Funds - Citv Notes. Subject to the terms and conditions of thisAgreement, including but not limited to this Section 4.03 and ArticleFive, theCity hereby agreesto issue two Notes to Developer: the Project Note for up to$7.000,000 to be issued on the Closing Date, and the Redevelopment Note for upto $19,500,000 to be issued on even date with the Certificate as provided inSection 7.01. The principalamount of each Note will be in an amount not greaterthan the costs of the TIF-Funded Improvements which have been incurredbyDeveloper (and which have not previously been countedin determining thebalance of the other Note) and are to be reimbursedby the City through paymentsof principaland interest on the Notes, subject to the provisions of this Agreement.Any payments under the Notes are subject to the amount of Available IncrementalTaxes and Incremental Taxes for the Redevelopment Area, as applicable, beingsufficient for such payments. The total principal amount of City Funds willbe thelesser of $26.500.000 or 25.37 % of total Project costs.(c) Issuance of the $7.000.000 Project Note. On the ClosingDate. the City will issueto Developer the Project Note with the following terms and conditions:(i) Principal. The principal balance for the Project Note will be equalto thecost of lIF-Fundcd Improvements incurred by Developer priorto the issuancedate. up to a maximumamount of $7.000.0000. Such balancewill bc determinedby the Certificate{s) of Expenditure issuedby the City in the form of Exhibit M-2,uponDeveloper providing satisfactory evidence of expenditures for TlF-FundedImprovements and compliance with the applicable requirements andterms andconditions of this Agreement. After issuance of the Project Note, if theprincipalbalance of the Project Note is less that $7,000,000, then the principal balance ofthe Project Note will be increased when the Cityissues additional Certificate(s) ofExpenditure in the form of Exhibit M2 up to a maximum amount of $7,000,000.(ii) Interest. The interestrate on the Project Notewill be set at a rate equal tothe 20 year Treasury rate as published in the dailyFederal Reserve StatisticalRelease (vindex") plus a margin of375 bps, but in no event greater than 9.75%.(iii) Term. The Project Notewill be issued on the Closing Date andwill havea term of 20 years.(iv) Payments of Principal and Interest.(A) Interest on the Project Notewill begin to accrue at the date ofissuance. Amortization of principal will be over the term of 20yearsas provided in the debt service schedule attached to theProject Note. Payments of principal andinterest will be madeannually on February 1.(B) No payments of principal or interest on the Project Note will bemade until a Certificate for the Project hasbeen issued by theCity.(C) Except as may be otherwise provided in this Agreement, AvailableIncremental Taxes only will be used to pay the principal of andinterest on the Project Note and on unpaid interest, ifany. In theordinance authorizing the issuance of the Project Note, theCitywill establish an account denominated the: "W9/MLM Real EstateLimited Partnership Developer Account" within theDiversey/Narragansett Redevelopment Project Area Special TaxAllocation Fund. All Available Incremental Taxeswillbedeposited into the W9/MLM Real Estate Limited PartnershipDe, eloper Account.(D) Payments of principal and interest on the Project Note andtheRedevelopment Note will be madefrom Available IncrementalTaxes depositedinto the W 9 / N t L ~ t Real EstateLimitedPartnership Developer Account asfollows:(I) First to interest due under the Redcv clopmcnt Note;8(II) Next to scheduledprincipal payments on theRedevelopment Note(III) Next to interest due under the Project Note;(IV) Next to payment of principal of the Project Note.(E) After the principaland interest on the Redevelopment Note andProject Note have been paid in full and each Note canceledaccording to its terms, and any applicable Pay-As-You-GoReimbursement (as defined below) has been paid, then theW9/MLMReal Estate Limited Partnership Developer Account willbe closed and all subsequent AvailableIncremental Taxes willbedeposited by the City in the DiverseylNarragansett RedevelopmentProject Area Special Tax Allocation Fund.(v) Insufficient Available IncrementalTaxes. If the amount of AvailableIncremental Taxes pledged under this Agreement is insufficient to makeany scheduled payment on the Project Note, then: (1) the City willnot bein default under this Agreement or the Project Note, and (2) duebutunpaid scheduled payments (or portionsthereof) on the Project Note willbe paid as provided in this Section 4.03 as promptly as funds becomeavailable for their payment. Interest per annum at the rate set when theProject Note is issued will accrue on any principal or interest paymentswhich are unpaid because of insufficient Available Incremental Taxes.(vi) Prepayment. The Project Note may be prepaid at any time withoutpremium or penalty.(vii) Reduced Amount of Prepayment by the City.(A) If the City eJects to prepay the Project Note within 12 months fromthe date of issuance of the Certificate,then the principal amountowed by the City on the Project Note will be reduced by 5% of theprincipal balance at the date of prepayment. For example, if theprincipal balance is $7,000,000, then the City can prepay theProject Note by paying $6,650,000, (i.e. $350,000 (5%1less thanthe $7.000,000principal balance). Accrued interest on the ProjectNote during such period will be paid in full throughthe date ofprepayment.(B) If the City elects to prepay the Project Note beginning withmonthIJfrom the date of issuance of the Certificate throughandincluding month~ 4 following the date of issuance of theCertificate, then the principal amount owedby the City on theProject Note will be reduced by 2.5% of the principal balance atthe date of the prepayment. For example, if the principal balanceat the date of prepayment is $7,000,000, thenthe City can prepaythe Project Note by paying $6,825,000, (i.e. $175,000 [2.5%] lessthan the $7,000,000 principal balance). Accrued interest on theProject Note will be paid in full through the date of prepayment.(viii) Sale or Transfer of the Project Note. After the issuance of the ProjectNote, the Project Note may be sold or assignedin a Qualified Transfer ofthe Project Note. Thereafter, the Project Note may againbe sold in aQualified Transfer of the Project Note.(ix) Cessation of Project Note Payments. If an Event of Default occurs, theCity will have no further obligations to make any payments with respect tothe Project Note and the City will have the remedies stated in Sections7.03 and15.02.(d) Issuance of the $19,500,000 Redevelopment Note. The Redevelopment Notewillbe issued on even date with the Certificate with the followingterms andconditions:(i) Principal. The principalbalance of the Redevelopment Note willbe established by the Certificate(s) of Expenditure issued by the City in theform of Exhibit M-l at the date of issuance, upon Developer providingsatisfactory evidence of expendituresfor TIF-Funded Improvements andcompliance with the applicable requirements and terms and conditions ofthis Agreement. After issuance of the Redevelopment Note, if theprincipal balance of the Redevelopment Note is less than $19,500,000,then the principal balance of the Redevelopment Note may be increasedwhen the City issues additionalCertificate(s) of Expenditure in the form ofExhibit M-l up to a maximum amount of $19,500,000.(ii) Interest. When issued, the interest rate for the Redevelopment Notewill be set as follows: On the date of issuance of the RedevelopmentNote, the interest rate will be equal to the AAA 20 year G. O. Bond rateas publishedby Bloomberg in effect on the date of issuance plus a marginof 300 bps, (the "Redevelopment Note Interest Rate") but in no eventwill such interest rate be greater than 8.75%.(iii) Term. IheRedevelopment Note will be issued on even date withtheCertificate and will have a term of 20 years.(iv) Payments of Principal and Interest.(A) Interest on the Redevelopment Note will begin to accrue atthe date of issuance. Amortization of principal will be over theterm of 20 years as provided in the debt service schedule attachedto the Redevelopment Note. Payments of principal andinterest willbe made semi-annually on FebruaryI and August I of each year.(B) Except as may be otherwise provided in this Agreement, AvailableIncremental Taxes only will be used to pay the principal of andinterest on the Redevelopment Note and on unpaid interest, if any.In the ordinance authorizing the issuance of theRedevelopmentNote, the City will establish an account denominated the:"W9IMLM Real Estate Limited Partnership Developer Account"within the Diversey/Narragansett Redevelopment Project AreaSpecial Tax Allocation Fund. All available Incremental Taxes willbe deposited into the W9/MLM Real Estate Limited PartnershipDeveloper Account.(C) Payments of principal and interest on the Project Note and theRedevelopment Note will be made from Available IncrementalTaxes deposited into the W9/MLM Real Estate LimitedPartnership Developer Account as follows:(I) First to interest due under the Redevelopment Note;(II) Next to scheduled principalpayments on theRedevelopment Note(Ill) Next to interest due under the Project Note;(IV) Next to payment of principal of the Project Note.(D) After the principal and interest on the Redevelopment Noteand the Project Note have been paid in full, and each Notecanceledaccording to its terms, and any applicable Pay-As- You-Go Reimbursement (as defined below) has been paid, thentheW9/MLMReal Estate Limited PartnershipDeveloper Account willbe closed and all subsequentAvailable Incremental Taxeswillbedeposited by the City in the Diversey.Narragansert RedevelopmentProject Area Special Tax Allocation Fund.(v) lnsufficient AvailableIncremental Taxes. If the amount of AvailableIncrementalTaxes pledged under this Agreement is insufficient to makeany scheduledpayment on the Redevelopment Note, then: (I) the Citywillnot be in defaultunder this Agreement or the Redevelopment Note, andJ J(2) duebutunpaid scheduled payments (or portions thereot) on theRedevelopment Notewillbe paid as provided in thisSection 4.03aspromptly as fundsbecome available for their payment. Interest per annumat therateset when the Redevelopment Noteis issued willaccrue on anyprincipal or interest payments whichare unpaid because of insufficientAvailable Incremental Taxes.(vi) Prepayment of the Redevelopment Noteby the City andRelated Lock OutPeriod. TheCitymay prepaythe Redevelopment Note at anytime withoutpremium or penalty, subject to the following conditions:(A) Prepayment Within 12 Months From theDate of Issuance of theCertificate. If the City elects to prepay theRedevelopment Notewithin12 months from the date of issuance of the Certificate, thenthe principal amount owed by the City on theRedevelopment Notewill be reduced by 5% of the principal balance at thedate ofprepayment. For example, if the principal balance is $19,500,000,then the City can prepay the Redevelopment Note by paying$18,525,000, (i.e, $975,000 [5%] less than the $19,500,000principal balance). Accrued interest on theRedevelopment Noteduring such period will be paid in full through thedate ofprepayment.(8) Prepayment Within Month 13 Through and Including Month 24from the Date of Issuance of the Certificate. If the City elects toprepay the Redevelopment Notewithin month 13 through andincluding month 24 from the date of issuance of the Certificate,then the principal amount owedby the City on theRedevelopmentNotewill be reduced by 2.5% of the principal balance at thedate ofthe prepayment. For example, if the principal balance at the dateof prepayment is $19,500,000, then the City can prepay theRedevelopment Noteby paying$19,012,500, (i.e.$487,500 [2.5%]less than the $19,500,000 principal balance). Accrued interest ontheRedevelopment Note will be paidin full through the date ofprepayment.(C) Redevelopment Note Lock-Out Period. A five year (60month)period (the "Redevelopment NoteLock-Out Period") forprepayment will begin on the earliest to occur of:(I) The beginning of the 25th monthafter the date of issuanceof the Redevelopment Note; or11(II) Formal notice by the City to Developer that the City doesnot plan to prepay the Redevelopment Note in the 24 monthperiod between the date of issuance of the RedevelopmentNote and the beginning of the 25th month after the date ofissuance.During the Redevelopment Note Lock-OutPeriod, the City will notprepay the Redevelopment Note, unless this Redevelopment NoteLock-Out Period restrictionis formally waived by theRedevelopment Note holder(s). Upon expiration of theRedevelopment Note Lock-Out Period, the City may prepay thethen current balance of the Redevelopment Note without anyrestrictions or conditions, together with any accrued interest.(vii) Sale or Transfer of the Redevelopment Note. After the issuance of theRedevelopment Note, the Redevelopment Note may be sold or assigned ina Qualified Transfer of the Redevelopment Note. Thereafter, theRedevelopment Note may again be sold in a Qualified Transfer of theRedevelopment Note.(viii) No Cessation of Redevelopment Note Payments. Notwithstandinganything to the contrary contained in this Agreement, after a QualifiedTransfer of the Redevelopment Note in compliance with Section4.03(d)(vii) above, if an Event of Default occurs, the City will,notwithstanding such Event of Default, continue to make payments withrespect to the Redevelopment Note.(ix) Costs of Issuance of the Redevelopment Note. Developer will beresponsible for paying all legal and issuance costs in relation to theRedevelopment Note, including all costs of bond counsel.(e) Pay-As- You-GoReimbursement.(i) Unpaid Balance at End of Note Term. If there is an unpaid balance at theexpiration of the term of either Note, then the holder(s) of any suchexpired Note will be entitled to pay-as-you-goreimbursement fromAvailable Incremental Taxes ("Pay-As-You-Go Reimbursement") untilsuch unpaid balance on such expired Note is paid in full. In any suchevent, any Pay-As-You-Go Reimbursementis subject to:(A) the availability of unused costs ofTIF-Funded Improvementswhich have not been used to establish the principal of either Note;and13(B) there being no Notes outstanding.If both Notes are qualified for Pay-As-You-Go Reimbursement forunpaidbalances, then such funds as are available for Pay-As-You-GoReimbursement will be applied first to amounts unpaid on theRedevelopment Note until paid in full,andthenthe amounts unpaid ontheProject Note. In no event shall City Funds paid under thissubsection beinthe aggregate principal amount greater than$26,500,000.(ii) Smaller Note Balances. If theProject Noteis issued for less than$7,000,000, or if theRedevelopment Note is issued forlessthan$19,500,000, in either instance for anyreason, then Pay-As-You-GoReimbursement will be available under thissub-section to Note holder(s)subject to thefollowing conditions:(A) the availability of unused costs ofTiF-Funded Improvementswhich have notbeen used to establish the principal of either Note;and(B) there being no Notes outstanding.If both Notes are qualified forPay-As-You-Go Reimbursement forsmallernote balances, then such funds as are available forPay-As-You-GoReimbursement will be applied firstto amounts needed to pay theprincipal balance of the Redevelopment Note untilpaid in full, and then toamounts needed to paythe principal balance of the Project Note. In noevent shall City Funds paid under thissubsection be in the aggregategreater than the sum of the principal balances of the Notes together withinterest dueon such Notes.4.04 Sale or Transfer of the Property or Project by Developer.(a) Prior to the5thAnniversary of the Date ofIssuance of theCertificate. Developermust obtain theprior approval of theCity for anysale or transfer of anypart of theProperty ortheProject duringtheperiod fromthe date of the Certificate to the 5th anniversary of thedate oftheCertificate. Such approvalby the City will be subject to the reasonable discretionrequirement stated in Section18.20. Theforegoing restriction doesnot apply to thesale ofAnchor sites to end-users referred to as Anchor Building1and Anchor Building 2 on theSitePlan.(b) After the5th Anniversary of the DateofIssuance of the Certificate, But Prior totheDate\\ henthe ;\iotesarePaid. After the 5th anniversary of the date of the Certificate, butprior to the date\\ hentheNotes arcpaid, Developer neednot obtain prior approval foranysaleor transfer of anypart of theProperty ortheProject. Developer must, however. notify theCityllot less than60 Jaysbefore an}dosing of sale of Developer's intention to sell anypart of the1,1Property or the Project. Developer must provide the City with true and correct copies of anycontract for sale and related documents as part of such notice.(c) At any Time Prior to the10th Anniversary of the Date ofIssuance of theCertificate. If Developer sells or transfers any part of the Property or Project at any timeprior tothe10th anniversary of the Certificate, then:(i) Not less than 60 days prior to the closing of any sale or transfer, Developer willprepare and submit for the City's review and approval an internalrate ofretumcalculation worksheet substantially in the form of Exhibit N, (the "JRRWorksheet") calculating Developer's internal rate ofretum on such proposedsale or transfer. The IRR Worksheet will take into account the following items:(i) the total of$26,500,OOO in TIF assistance (or any lesser aggregate amount); (ii)any profits realized by Developer (or any Affiliate of Developer) from theintended pre-disclosed sales of anchor sites to end-users referredto as AnchorBuilding 1 and Anchor Building 2 on the Site Plan; and (iii)be based on an equityat risk of $40,200,000.(ii) Ifthe IRRWorksheet reflects an internal rate of return to Developer of greaterthan 22.5%, then Developer will be deemed to have received "excess profits" onsuch proposed sale or transfer.(iii) If Developer has been deemed to have received excess profits, and Developercompletes the proposed sale or transfer of any part of the Property or Project, thenthe Cityis entitled to reduce the Project Note by an amount equalto 35% of anysuch excess profits. If the Project Note principal balance will not support a full35% reduction, then Developer will pay cash to the City at closing in suchamount, which when added to the Project Note principal reduction, will be equalto 35% of any such excess profits. If the Project Note has been paid at the time ofclosing of any such sale or transfer, then Developer will pay cash to the City atclosing, in an amount equal to 35% of any such excess profits.(d) Sales of Assets or Equity. For purposes of this subsection, the phrase: "sale ortransfer of any part of the Property or Project" includes any sales or transfers which are a part ofthe sale or transfer of all or substantially all of Developer's assets or equity. The foregoingrestriction doesnot apply to the planned sale of: (i) 5% of the equity in W9/MLMBrickyard,L.L.c.to Mars Brickyard, L.L.c.. an Illinoislimited liability company ("Mars Brickyard I"), or(ii) 5% of the equityin W9/MLMBrickyard,L.L.c.to Mars Brickyard II, L.L.c.. an Illinoislimitedliability company ("Mars Brickyard II"). Mars Brickyard I and Mars Brickyard II areeach an affiliate of Mid-America Real Estate Corp.4.05 City Riehts toDiscontinue or Suspend Payments under the Project ~ o t e orI)av-As- You-GoReimhursement. The City has the nght to discontinue or suspend payrnentsapplicable to the ProjectNote or Pay-As- You-Go Reimbursement under the followingcircumstances:(a) Net Leaseable Square FootRequirement. Exclusive of intended pre-disclosedsales of anchor sites to end-users referred to as Anchor BuildingI and Anchor Building 2 on theSite Plan, if Developer fails to maintain on an annualbasis a minimum occupancy of 60% of theremaining net leaseable area of the Project (the "Net Leaseable Square Foot Requirement")for 10years from the date of issuance of the Certificate.(b) Consequences of Non-Maintenance of the Net LeaseableSquare FootRequirement.(i) IslYear. In the first year that Developer fails to maintain the NetLeaseableSquareFoot Requirement, Developer will receive principal and interest paymentson the Project Note and interest will accrue on the Project Note.(ii) 2ndYear. If there is a second year that Developer fails to maintain the NetLeaseable Square Foot Requirement, and such second year neednotbeconsecutive to the first year, then Developer will not receive principal andinterestpayments on the Project Note for the period including the second year of non-maintenance, and interest will not accrue on the Project Notefor such period.(iii) 3rdYear. If there is a third year that Developer fails to maintain the Net LeaseableSquareFoot Requirement, and such third year need not be consecutive to thesecond year,then: Developer will not receive principal and interest payments onthe Project Note for the period including the third year of non-maintenance;interest will not accrue on the Project Note for such period; and the City may electto terminate the Agreement and the Project Note.(iv) Non-Comoliance Years Not Counted. A year that Developer is out of compliancewith the Net Leaseable Square Foot Requirement does not count towardfulfillment of Developer'slO-year requirement stated in subparagraph (a) above.(c) Retail Center Requirement. After theIO-yearrequirement for maintenance of theNet Leaseable Square Foot Requirement has expired, if Developer fails to maintain the Propertyas a retail center until the Project Note is paid.(d) Sale Requirements. If Developer fails to comply with the approval requirementin Section 4.04(a), the noticerequirement in Section 4.04(b) or the accountingandsettlement of"excess profits" under Section 4.04 (c).(e) PermittedUses. If Developer fails to comply with the permitted usestor thePropertyunder the PO or other applicable zoningrequirements.4 06 Treatment of Prior Expenditures, Only those expenditures madeby Developerwith respect to the Project prior to the ClosingDate, evidenced by documentation satisfactory toDPD and approvedby OPO as satisfyingcosts covered in the Project Budget. willbe consideredprcv101Isly contributed Equity or Lender Financing, if any, hereunder (the "Prior1Expenditure(s)"). DPD has the right, in its sole discretion, to disallow any such expenditure(notlisted onExhibit G) as a Prior Expenditure as of the date hereof. Exhibit G states the priorexpenditures approved by DPD as Prior Expenditures. Prior Expenditures made for items otherthan TIF-Funded Improvements will not be reimbursed to Developer, but will reduce the amountof Equity and/or Lender Financing, if any. required to be contributed by Developer under Section4.01.4.07 Cost Overruns. If the aggregatecost of the TIF-Funded Improvements exceedsCity Funds available under Section 4'.03, Developer will be solely responsible for such excesscosts. and willhold the City harmless from any and all costs and expenses of completing the TIF-Funded Improvements in excess of City Funds and from any and all costs and expenses ofcompleting the Project in excess of the Project Budget.4.08 TIF Bonds. The Commissioner of DPD may, in his or her sole discretion,recommend that the CityCouncil approve an ordinance or ordinances authorizing the issuance ofTIF Bonds in an amount which, in the opinion of the City Comptroller, is marketable under thethen current market conditions. The proceeds of TIF Bonds may be used to pay the outstandingprincipal and accrued interest (through the date of prepayment) under the Notes and for otherpurposes as the City may determine in all instances subject to the restrictions applicable duringthe Redevelopment Note Lock-Out Period. The costs of issuance of the TIF Bonds wouldbeborne solely by the City. Developer will cooperate with the City in the issuance of the TIFBonds, as provided in Section 8.05.ARTICLE FIVE: CONDITIONS PRECEDENTThe following conditions precedent to closing must be complied with to the City'ssatisfaction within the time periods set forth below or, if no time periodis specified, prior to theClosing Date:5.01 Project Budget. Developer will have submitted to DPD, and DPD will haveapproved, a Project Budget in accordance with the provisions of Section 3.03.5.02 Scope Drawings and Plans and Specifications. Developer will have submittedto DPD, and DPD will have approved, the Scope Drawings and Plans and Specifications asprovided in Section 3.02 or DPD has agreed to approve them as a post-closing item.5.03 Other Governmental Approvals. Developer will have secured or applied for allother necessaryapprovals and permitsrequired by any Federal, State. or local statute. ordinance,rule or regulation to begin or continue construction of the Project. and will submit evidencethereof to DPD.1'75.04 FinancinK.(a) Developer will have furnished evidence acceptable to the City that Developer hasEquityand Lender Financing, ifany, at least in the amounts statedin Section 4.01 to completethe Project and satisfy its obligations under this Agreement. If a portion of such financingconsists of Lender Financing, Developer will have furnished evidence as of the Closing Datethatthe proceeds thereof are available to be drawn upon by Developer as neededand are sufficient(alongwith the Equityand other financingsources, if any, stated in Section 4.01) to complete theProject.(b) Prior to the Closing Date, Developer will deliver to DPD a copy of theconstruction escrow agreement enteredinto by Developer regarding Developer's LenderFinancing, if any. The construction escrow agreement must provide that the City willreceivecopies of all construction draw request materialssubmitted by Developer after the date of thisAgreement.(c) Any financing liens against the Property and Project in existence at the ClosingDate will be subordinated to certain encumbrances of the City statedin this Agreement under asubordination agreement, in a form acceptable to the City, executed on or prior to the ClosingDate, which is to be recorded,at the expense of Developer, in the Office of the Recorder ofDeeds of Cook County.(d) The City agreesthat the Notes may be assigned on a collateral basis to any lenderor lenders providing Lender Financing, if any.5.05 Acquisition and Title. On the Closing Date, Developer will furnishthe City witha copy of the Title Policy for the Property, showing Developer as the named insured. TheTitlePolicy will be dated as of the Closing Date and will contain only those title exceptions listed asPermitted Liens on Exhibit H and will evidence the recording of this Agreement under theprovisions of Section 8.17. The Title Policy will also contain the following endorsements asrequired by Corporation Counsel: an owner's comprehensive endorsement and satisfactoryendorsements regarding zoning(3.1 with parking), contiguity, location, access,and survey.5.06 Evidence of Clear Title. Not less than 5 Business Days prior to the ClosingDate, Developer, at its own expense, will have provided the City with currentsearches under thenames of each of the entities comprising Developer as follows:Secretary of State (IL)Secretary of State (Il.)Cook CountyRecorderCook CountyRecorderCook CountyRecorderCook CountyRecorderCook CountyRecorderC;.S District Court (N.D. IL)10uccsearchFederal tax lien searchucc searchFixtures searchFederal tax lien searchState tax lien searchMemoranda ofjudgments searchPending suits and judgmentsClerk of Circuit Court,Cook CountyPending suits and judgmentsshowing no liensagainst Developer, the Property or anyfixtures now or hereafter affixed thereto,except for thePermitted Liens.5.07 Sunreys. Developer will havefurnished the City with 3 copies of theSurvey.5.08 Insurance. Developer, atits own expense, will have insured the Property and theProject as required under Article Twelve. Prior to the Closing Date, certificates required underArticlefwelve evidencing the required coverages will havebeen delivered to DPD.5.09 Opinions of Developer's Counsel. On the Closing Date, Developer willfurnishtheCity with an opinions of counsel, substantially in the form of Exhibits I-Iand 1-2, with suchchanges as may be required by or acceptable to Corporation Counsel. If Developer hasengagedspecial counsel in connection with the Project, and such special counsel is unwilling or unable togive some of the opinions stated in Exhibits I-I and 1-2, such opinions shall be obtained byDeveloper fromits general corporate counsel.5.10 Evidence of Prior Expenditures. Developer willhave provided evidencesatisfactory to DPD of the Prior Expenditures as provided in Section 4.04.5.11 Financial Statements. Developer will have provided Financial Statements toDPD for its 200 I and 2002 fiscal years, if available, and its most recently available unauditedinterim Financial Statements.5.12 Additional Documentation. Developer willhave provided documentation toDPD, satisfactory in formandsubstance to DPD concerning Developer's employment profileand copies of any ground leases or operating leases and other tenant leases executed byDeveloper for leaseholds in the Project, if any.5.13 Environmental Audit. Developer will haveprovided OPD with copies of allphase I environmental audits completed with respect to the Property, if any, and a letter fromtheenvironmental engineer(s) whocompleted such audit(s), authorizing the City to rely on suchaudits. If environmental issues exist on the Property, the Citywill require written verificationfromthe Illinois Environmental Protection Agency that all identified environmental issues havebeen or will be resolved to its satisfaction.5.14 EntityDocuments.(a) Developer will provide a copy of the current Certificate of Limited Partnership forW9/\tIL\t1Real EstateLimited Partnership. with all amendments, containing the originalcertification of the Secretary of State of its state of organization; certificates of good standingfromthe Secretary of State of its state of organization and all other states in whichDeveloper isquali tiedto do business;the agreement of limitedpartnership by and amongthe partners of19W9/MLM Real Estate Limited Partnership; a secretary's certificate in such form and substance asthe Corporation Counsel may require; and such other organizational documentation as the Citymay request.(b) Developer will provide a copy of the current Certificate of Formation forW9/MLMBrickyard, L.L.C., with all amendments, containing the original certification of theSecretary of State of its state of organization; certificates of good standing from the Secretary ofState of its state or organization and all other states in which Developer is qualified to dobusiness;the current Amended and Restated Limited Liability Company Agreement forW9/MLM Brickyard, L.L.c.; a secretary's certificate in such form and substance as theCorporation Counsel mayrequire; and such organizational documentation as the City mayrequest.5.15 Litieation. Developer will provide to Corporation Counsel and DPD adescription of all pending or threatenedlitigation or administrative proceedings involving theDeveloper or any Affiliate of Developer specifying, in each case, the amount of each claim, anestimate of probable liability, the amount of any reservestaken in connection therewith, andwhether (and to what extent) such potential liabilityis coveredby insurance.5.16 Preconditions of Acceptine Certificates of Expenditure. Prior to theacceptance by DPD of any Certificate of Expenditure under the Notes,Developer must submit toDPD documentation of such expenditures (in the form of waivers of lien, canceled checks,closing statements, or such other documentation as DPD may reasonably require), which will besatisfactory to DPD. Delivery by Developer to DPD of any Certificate of Expenditure hereunderwill, in addition to the items therein expressly set forth, constitute a certification to the City, as ofthe date of such request for disbursement, that:(a) the total amount of the disbursement request representsthe actual amount payable to(or paid to) the General Contractor and/or subcontractors for work performed on the Project,and/or their payees;(b) all amounts shown as previous payments on the current certificate have been paid tothe parties entitled to such payment;(c) Developer has approvedall work and materialsfor the current certificate and, to thereasonable belief of Developer, such work and materials conformto the Plans and Specifications;(d) the representations and warranties of Developer containedin this Agreement aretrueand correct and Developer is in compliancewith all covenantscontained herein;(c) Developer has received no notice and has no knowledge of any liens or claim of lieneither tiled or threatenedagainstthe Project except for the PermittedLiens; and(f) no Event of Default or condition or event which, with the giving of notice or passageof time or both, would constitute an Event of Default exists or has occurred.(g) theProject is In Balance. TheProject willbe deemed to be in balance ("InBalance") only if the total of the available Project fundsequals or exceeds the aggregate of theamount necessary to pay allunpaid Project costs incurred or to be incurred in the completion oftheProject. "Available Project Funds" as usedherein means: (i) theundisbursed LenderFinancing, if any;(ii) the undisbursed Equity; and (iii) any other amounts deposited by Developerunder this Agreement. Developer agrees that, if the particular phase of theProject is notInBalance, Developer will, within10 days after a written request by the City, deposit either withthe lender providing any of the Lender Financing or withthe construction escrow agent, cash inan amount that willplace the particular phase of theProject In Balance, which deposit shall firstbe exhausted upon the request of such lender before any further acceptance of a Certificate ofExpenditure shall be made.The City will not execute any Certificate of Expenditure for the Notes unless Developerhas satisfied the City thatDeveloper has complied, or is implementing a plan to comply, with therequirements of Sections 8.08. 10.02 and10.03. The City will havethe right, in its reasonablediscretion, to require Developer to submit further documentation as the City mayrequire in orderto verify thatthe matters certified to above are trueand correct, and any acceptance of aCertificate of Expenditure by the City willbe subject to the City's review and approval of suchdocumentation and its satisfaction that such certifications are true and correct. In addition,Developer will havesatisfied all other preconditions of disbursement of City Funds for eachdisbursement. including but not limited to requirements not inconsistent with thisAgreement andstated in the TIFBond Ordinance, if any, the Bonds, if any,the TIF Bonds, if any, the TIFOrdinances, the Notes. andthis Agreement.ARTICLE SIX: AGREEMENTS WITH CONTRACTORS6.01 Bid Requirement for General Contractor and Subcontractors.(a) DPD acknowledges thatDeveloper has selected Pepper Construction Company asthe General Contractor for the Project. Developer will cause the General Contractor to solicitbids for work on the Project solely from qualified subcontractors eligible to do business with theCity of Chicago.(b) Developer must submit copies of the Construction Contract to DPD as requiredunder Section 6.02below. Uponthe writtenrequest ofDPD, Developer will provide photo-copies of all subcontracts entered or to be entered intoin connection withthe Project within five(5)Business Days of the execution thereof. The Developer must ensure that the GeneralContractor will not (andmust causethe General Contractor to ensure that the subcontractors willnot) beginworkon theProject (or any phasethereot) until the applicable Plans andSpecifications for that phase havebeen approved by DPO and all requisite permits havebeenobtained.,16.02 Construction Contract. Prior to the execution thereof. Developer must deliverto DPD a copy of the proposed Construction Contract with the General Contractor selected towork on the Project,for DPD's prior written approval. Following execution of such contract bythe Developer, the GeneralContractor and any other parties thereto, Developer must deliver toDPD and Corporation Counsel a certified copy of such contract together with any modifications,amendments or supplements thereto.6.03 Performance and Payment Bonds. Prior to commencement of construction ofany work in the publicway. Developer will require that the General Contractor and anyapplicable subcontractor(s) be bonded (as to such work in the public way) for their respectivepayment and performance by sureties having an AA rating or better using thebond formattachedas Exhibit K. The City will be named as obligee or co-obligee on such bond.6.04 Employment Opportunity. Developer will contractually obligate and cause theGeneral Contractor to agree and contractually obligate each subcontractor to agree to theprovisions of Article Ten; provided, however,that the contracting, hiring and testingrequirements associated with the MBE/WBE and the City resident obligations in Article Tenshallbe applied on an aggregatebasis and the failure of the General Contractor to require eachsubcontractor to satisfy or the failure of anyone subcontractor to satisfy. such obligation shall notresult in a default or a termination of this Agreement or require payment of the City residenthiring shortfall amountsso long as such ArticleTen obligations are satisfied on an aggregatebasis.6.05 Other Provisions. In addition to the requirements of this Article Six, theConstruction Contract and each contract with any subcontractor must contain provisions requiredunder Section 3.04 (Change Orders), Section 8.08 (PrevailingWage), Section 1O.0ICe)(Employment Opportunity). Section 10.02 (City ResidentConstruction Worker EmploymentRequirement), Section10.03 (Developer's MBE/WBE Commitment), ArticleTwelve (Insurance)andSection14.01 (Books and Records).ARTICLE SEVEN: COMPLETION OF CONSTRUCTION7.0I Certificate of Completion of Construction.(a) Upon completion of the construction of the Project in compliance withthetermsand conditions of this Agreement. and upon Developer'swritten request. DPD will issuetoDeveloper a certificate of completion of construction in recordable form (the "Certificate")certifying that Developer has fulfilled its obligation to complete the Projectin compliance withthe terms and conditions of this Agreement. DPD will respond to Developer'swrittenrequest fora Certificate within 30 daysby issuing either a Certificateor a written statement detailing theways in which the Project does not conformto this Agreement or has not been satisfactorilycompleted and the measureswhich must be taken by Developer in order to obtainthe Certificate.Developer may resubmit a written request for a Certificate upon completion of suchmeasures,and the City will respondwithin 30 daysin the same way as the procedure for the initialrequest.Suchprocessmay repeat until the Cityissues a Certificate. .(b) Developer acknowledges and understandsthat the City will not issue a Certificateuntil the followingconditions have been met:(i) A combined minimum of 70% of the gross leasable area of the Project hasbeen contracted for lease and/or the anchor sites referred to as Anchor Building1 andAnchorBuilding 2 on the Site Plan have been transferred through sale to identified endusers; and(ii) The City's Monitoring and Compliance unit has determined in writing thatthe Developer is in complete compliance with all City requirements (MlWBE, Cityresidency and prevailing wage) as requiredin this Agreement.7.02 Effect of Issuance of Certificate;Continuing Obligations.(a) The Certificate relates only to the construction of the Project, and upon itsissuance,the City will certify that the terms of the Agreement specifically related to Developer'sobligation to complete such activities have been satisfied. After the issuance of a Certificate,however, all executory terms and conditions of this Agreement and all representations andcovenants contained herein will continue to remain in full force and effect throughout the Termof the Agreement as to the parties described in the following paragraph, and the issuance of theCertificate must not be construed as a waiver by the City of any of its rights and remedies undersuch executory terms.(b) Those covenants specifically described at Section 8.02 (Covenant to Redevelop)as covenants that run with the land are the only covenants in this Agreement intended to bebinding upon any transferee of the Property (including an assigneeas described in the followingsentence) throughout the Term of the Agreement. The other executory terms of this Agreementthat remain after the issuance of a Certificate will be binding only upon Developer or a permittedassignee of Developer who, as provided in Section18.15 (Assignment) of this Agreement, hascontracted to take an assignment of Developer's rights under this Agreement and assumeDeveloper's liabilities hereunder.7.03 Failure to Complete. If Developerfails to timely complete the Project incompliance with the terms of this Agreement, then the City will have, but will not be limited to,any of the foII 0\\ ing rights and remedies:(a) the right to terminate this Agreement and cease all disbursement of CityFunds notyet disbursed under this Agreement;(b) the right (but not the obligation) to completethose TlF-Funded Improvements thatarc public improvements and to pay for the costs of such TlF-FunJeJ Improvements (includinginterest costs) out uf City Funds or other City monies. If the aggregatecost of completing the23TlF-Funded Improvements exceeds the amount of City Funds available under Section 4.01,Developer will reimburse the City for all reasonable costs and expenses incurred by the City incompleting such TlF-Funded Improvements in excess of the available City Funds;and(c) the right to seek reimbursement of the City Funds from Developer, provided thatthe City is entitled to rely on an opinion of counsel that such reimbursement will not jeopardizethe tax-exempt status, if any, of any TIF Bonds.7.04 Notice of Expiration of Term of AKreement. Upon the expiration of the Termof the Agreement, DPD will provide Developer, at Developer's written request, with a writtennoticein recordable formstatingthat the Term of the Agreement has expired.ARTICLE EIGHT:REPRESENTATIONS, WARRANTIES ANDCOVENANTSOF DEVELOPER.8.01 General. Developer represents, warra