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Home My WebLink AboutApplication Preliminary u 0 DEVELOPME1\T'f PLAN APPLICATION (Amendmentl Fee: $700.00 plus $35.00 per acre ($630.00) DOCKET NO. g ~ () z, X Public Hearing Required 1- to - 02-. ~ DATE: )( Final Received By/Date Amended or Changed l Checked By k L Name of Project: f) m Lt' () ; d -r;.,~UJ rL/ Project Address: . ~ .sle {J iJnl.f.r 7l2tLft7 SIred /1/7 on oYV 'lra..Le, Legal Description: (To be typewritten on separate sheet and attached) Name of Applicant: /fmL-/ I?es./d en;f,'d Address: 56'75' r14sfie Gr.et'er( Par-kwcu; /Ibrth J)n'v<t - JI.,{'J0 3/0 JntJUr I NL/h '2. S7) Contact Person: 01m ThDYYlcLS Telephone: 5l:3-if-,R5(,)3 Name of Landowner: JtttyU!./ Telephone: Address: Plot Size: Zoning Classification: (! - 2.. Present Use of Property: vac tlI7r Proposed Use of Property: ;- eltLj /c>If1'C-& tee sidud-,'d ) !Jftuiraud r-kw/I /tn71e.- r ~.. ' v- ~ u u NOTE: This application must be filed in duplicate and accompanied by: a) Two (2) copies of the development plan which the applicant will be responsible for distribution among TAC members; b) All necessary supporting materials. The undersigned agrees that any construction, reconstruction, enlargement, relocation or alteration of structures, or any change in the use of land or structures requested by this application will comply with and conform to all applicable laws of the State of Indiana and the zoning ordinance of Carmel, Indiana, adopted under the authority of Acts of 1979, Public Law 178, Sec. 1, et seq., General Assembly of the State of Indiana, and all Acts amendatory thereto. Signed: Agent Owner (Typed) (Typed) ST A TE OF INDIANA S8: County of Before me the undersigned, a Notary Public for (county of residence) County, State of Indiana, personally appeared (name of person) and acknowledged the execution of the foregoing instrument this day of , 20 (Notary Public Signature) (Printed or Typed) My Commission Expires: s: \forms\devplan.app Rev. Oct. 2000 V eI)"; I=: 0 S ';l . = '.:l I/J ~ ~ =~ ~ o ~ - ~ === .... .., ~ = - ~ ~ ~ b rJ) 0 ,5 ~ C'j ~ Q - Q,) S l-. ~ U u \i --~'W \\ \\ \, \\ \~, . .~:' , \ . .----::'~- ~ "::;" <- --~~ - -~ ~:..:- .\ . -0:--- :-- .\':.;..-~_. :;:::;-- - ~. .~ ,\ R o Sample text. Actual text will be developed with input of Carmel-Clay Historical. Society. i .." ~', 'B" ,....1d.... .' ,/. '\ .itlllulfl': 1..".. . :,@. '. " ,;," ";", i:\..C. ..,:.,.L.'~"..m:.:'" I! ' '" fi.:! 1 ...""t, '. 'r..; IV " .,' \;E~:;lO~ ',.:'.'. .....'.:. .s!,:.JP2 ..3...~....~y ,.n: ': f::.Y3~/.g'>r ,. ". ~. $tEili'~;y~tl;Q.Q, "Ghos{(' Signs to be pa,nt applied to building. .:' (Podions may be sandblasted to add effect of agingJ $: "'C Q,) > o L- 0.. 'f, 0..1 COi "'(1,)'0'1' .c o t:n c.: .".",,,.,,,,,,~--:- """"t::J' ::J -C o -+- -c QJ .- - -c a... -c a... 0 c 0 -- -+- -c Ie ~ .- -- c ..... a......2 --C CJ-c .....0 5 ..... o -+- $; ""0 C co ~ +-' ..c 0'>,' . en ',b ~~',.';"" rojg > '(0 +-' ~ "CJ) co ,t: EO- -.; 'Ib" 0)>< +-' i' >< i' +-' (]) : . CJ)~, : 0.. co :0- E~~ +-' ',' CJ)CO <(0 ;.f9,., ',',. :(.1)" Relall iii ~ c o c o ::;; BUILDING # 1 round Floor nd Floor Unll Type UpgradeslFP Unit # Unit Type Upgra<leslfP Unit" Un~ Type UpgradeslfP Unil # 3rd Floor Unit Type UpgradeslFP Unit # Unit Type UpgradeslFP Unit # Unil Type UpgradeslFP Unit # <II ol(9D \~'t AMLI at Old Town Carmel Address Plan, Buildings Unit Types 125 .~ ~ 326 327 ioN 2 +~ 329 loft 1 ~-r ~3210 W Mein Street M t... " ~1~11~~1~1~1~1~1~1~1 ~lfjj4 325 325 324 323 ..)l~G~~v 322 321 2210 229 228 227 226 225 224 BUILDING # 3 (321-3210) BUILDING # 2 (221-2210) Iof 2 # 33B IoN 2 ~ 339 -S loft I ,,)33101' loft 1 loll 1 loti 1 loft I loti I loti 2 latt2 ~ C; - ~ c 3~ r 239 23B 237 235 235 234 233 232 loft 1 ~31 BUILDING # 3 (331-3310) BUILDING /I 2 (231-2310) s I A AI,JS-r. \\ w. r\ . Iolt 2 iaN 2 s (,..(. . 7'e lVas-. 6~~. t " RECElVEO JUN 14 2002 DOCS I I \ \::.\ c t.ro 223 222 loft I .LA 221 1/1 " I 73-r: III ()J rlA1fU 611412002 c ...-; _.-r_l_~ /' c BUILDING # 4 Unit Type UpgradesJFP Unilli Unit T ypa UpgradeslFP Un;1 # Unit Typa UpgradeslFP Unit # Unit Type UpgradeslFP Unit # Unit Type UpgradeslFP Unil# Unit Type UpgradeslFP Unit # Unil Type UpgradeslFP Unit # Ground Floor m ~ 411 ~ TH -:::t- 412 t Tft 413 ~ TH 414 <?;: TH 415 ~ TH 416 loft 1 d- ~ He 417 - 1st Stre.' Sow. .~ t-- c o c o ::;: ": AMlI at Old Town Carmel Address Plan, Buildings Unit Types 6/1412002 2nd Floor 3rd Floor ~ loft2 \() 431 ~ loft 2 ~ 432 loft 2 U tV) 433 ~ loft 2 ~ 234 \>> loft 2 \C') 435 * loft 2 436 ~IOftl 437 c N W~E ,,- + RECENED j~\i \4 2QQ2 noes s On; ~ S c o ::;: 0(0 /4>~ ~C(Jv A >it. X c BUll DING /I 5 Unit Type UpgradoslFP Unit. Unit Type UpgradeslFP Unit. Unit Type UpgradeslFP Unit. Unit Type U pgradeslF P Unit ~ UOlt Type UpgradeslFP Unit I! Unit Type UpgradeslFP Unit I! Unit Type Upgrade"FP Unit I! Unit Type UpgradeslFP Unit/l Unil Type UpgradeslFP Unit II Umt Type UpgradeslFP Unil II Unit Type UpgradeslFP Unit. Unit Type UpgredeslFP Unil' Unit Type UpgradaslFP Unit /I Unit Type Upgrade "'F P Unit. Ground Floor 515 LoN 1 s: oj ~ ~ c ~ > <t "C C '" '-.. ~ 2nd Floor 'st Street S.W. AMLI at Old Town Carmel Address Plan, Buildings Unil Types Jrtl Floor Loll 2 <[ 521 ~ LoN 1 1:0 522 ~ LollI 523 Loft 1 524 Loft 1 525 LollI ~ vi .. ~ c .. > <( "C ~ N ~ ""'" Loft 2 531 Loft 1 ~ 532 .., Loft 1 533 Loft 1 534 Loft 1 I 535 Loft , 536 Loft , 537 Loft 2 538 Loft 2 539 Loft 2 5310 LoN 2 53'1 Lolt2 5312 Loft 2 1: 5313 "0 Loft 2 6314 -z ~ ~ vi .. ~ c .. < "C ~ '" 6/14/2002 Building # I .. AMLI al Old Town Carmel Address Plan, Buildings Unit Types 6/14/2002 , Carmel, IN 46032 Wesl Main Street, Suile Carmel, IN 46032 Leasing Office: Building" 2 Building # 3 Building. 4 2nd Avenue S,w., Carmel, IN Gro nd Floor: Building # 5 WeS! Main Street, Suita 119 Carmel. IN 46032 121 Wesl Main Street, Apt. Cannel. IN 46032 121 Wesl Main Str..l, Apt. 231, 232, 233, 234, 235 Carmel, IN 46032 121 Wesl Main Streel, Api Carmel, IN 46032 c 121 2 Avenue S,w., Apt. 411, 412, 413, 414. 415, 416, 417 armel, IN 46032 \ t.-U ~t.-\"t.~ ~1 J~\\ \~ ~ ~fJC~ 2nd Avenue S.w., Apt. 427 Carmel, IN 46032 2nd Avenue S.w., Apt 431,432,433,434.435.436,437 Carmel, IN 46032 46032 2nd Avenue S.W., Apt. Carmel, IN 46032 2nd Avenue S. W.. Carmel, IN 4603 2nd Avenua Sw.. Apt. 531,532,533,534,535,536,537,536,539,5310,5311, 5312, 5313, 5314 c u . ) U' PROJECT AGREEMENT This Project Agreement (the "Agreement"), by and between The City of Carmel Redevelopment Commission ("eRe") and AMLI Residential Properties, L.P" a Delaware limited partnership, or the assignee of AMLI Residential Properties, L.P., as permitted under Section 16 (the "Developer"), executed as of the _ day of , 2002, WITNESSES: Recitals WHEREAS, Developer owns the Lumberyard Parcel; WHEREAS, CRC owns the CRC Site; WHEREAS, CRC intends to lease or sell the CRC Site to a developer that will construct the Project on the Project Site; WHEREAS, eRe is required to comply with the Statute and conduct a public offering prior to any lease or sale of the CRC Site; WHEREAS, in compliance with the Statute, CRC prepared the Notice of Sale; WHEREAS, in compliance with the Statute, the Notice of Sale: (a) was published; (b) stated that CRC would open and consider written offers for the lease or sale of the CRC Site at the Designated Time; and (c) stated the general location of the CRC Site, identified the Required Use, and required bidders to submit certain information, including, without limitation, all information required by the Statute; WHEREAS; in compliance with the Notice of Sale, Developer submitted the Development Proposal to CRC for its consideration; WHEREAS, in compliance with the Statute, and at the Designated Time, CRC opened and considered the bids that had been submitted (including, without limitation, the Development Proposal); WHEREAS, in compliance with the Statute, CRC conditionally accepted the Development Proposal, based upon a determination that the lease of the CRC Site to Developer, and the development of the CRC Site by Developer, will best serve the ihterest of the community, from the standpoint of both human and economic welfare; and WHEREAS, Developer desires to: (a) lease the CRC Site from CRC; and (b) construct the Project upon the Project Site, as generally shown on the Project Site Plan and in general accordance with the Development Proposal, as conditionally accepted by CRC; Aqreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC and Developer agree as follows: 1. Defined Terms. Additional Contribution Fundinq shall mean the contribution of additional funds made by Developer in lieu of a permitted Additional Project Contribution if CRC elects not to make an Additional CRC Contribution. All funds contributed by Developer as Additional Contribution Funding shall: (a) be added to the Preference Amount; and (b) be used for the same purposes as an Additional Project Contribution I ,\2002\3\PROJECT A G RI"'~"ISYIVB. FIN AL.DOC QI':UJ02 0- , u) Additional CRC Contribution shall mean CRC's pro rata portion of any Additional Project Contribution, which shall be determined by multiplying the CRC Percentage by the Additional Project Contribution. Additional Developer's Contribution shall mean the Developer's pro rata portion of any Additional Project Contribution, which shall be determined by multiplying the Developer Percentage by the Additional Project Contribution. Additional Proiect Contribution shall mean the contribution of additional funds by CRC and/or Developer for the payment of: (a) Operating Expenses; and/or (b) Debt Service on an Approved Construction Loan and/or an Approved Permanent Loan; provided that neither party may make an Additional Project Contribution to the extent that payment of Operating Expenses and Debt Service can be made out of Total Revenues, Total Proceeds, and/or Project Reserves. Affiliate shall mean: (a) any person or entity that directly or indirectly: (i) controls, is controlled by, or is under common control with CRC or Developer, as the case may be; (ii) holds a material (defined as greater than 5%) equity interest in CRC or Developer, as the case may be; (iii) manages or operates CRC or Developer, as the case may be; (iv) manages or operates an entity that is described in clause (a)(i), (a)(ii), or (a)(iii); (v) holds an ownership or equity interest in an entity that is described in clause (a)(i), (a)(ii), (a)(iii), or (a)(iv); or (vi) controls, is controlled by, or is under common control with an entity described in clause (a)(i), (a)(ii), (a)(iii), (a)(iv), or (a)(v); (b) any person who is related by blood or marriage to a person described in clause (a); or (c) any entity controlled, managed, or operated by a person who is related by blood or marriage to a person described in clause (a) or (b). Approved Construction Loan shall mean a Construction Loan: (a) the principal balance of which does not exceed 80% of Project Costs; (b) the proceeds of which are used exclusively to pay Project Costs and Closing Costs; and (c) that is obtained through an arms-length transaction with a commercial lender that is not an Affiliate of Developer. Approved Loan Uses shall mean: (a) paying off the principal balance and accrued interest of an Approved Construction Loan, an Approved Permanent Loan and/or Additional Contribution Funding; (b) paying Project Costs not previously paid by the Approved Construction Loans; (c) paying Closing Costs, deferred Operating Expenses, and deferred Debt Service; (d) funding Project Reserves; (e) paying current interest that has accrued on the Preference Amount; (f) reducing the principal balance of the Preference Amount; (g) reducing the outstanding balance of the Base Amount; and (h) making payments to CRC and/or the Developer as provided in Subsection 4(d). Approved Permanent Loan shall mean a Permanent Loan: (a) the proceeds of which are used exclusively for Approved Loan Uses; and (b) that is obtained through: (i) an arms-length transaction with a commercial lender that is not an Affiliate of Developer; or (ii) an Affiliate of Developer approved in writing by eRe, which approval shall be not be unreasonably withheld; provided that, if Developer and/or its Affiliates obtain a Permanent Loan that: (a) is secured by a mortgage lien on the Project; and (b) otherwise qualifies as an Approved Permanent Loan, except that a portion of the proceeds of such Permanent Loan are used for purposes other than Approved Loan Uses; then: (a) to the extent that the proceeds of the Permanent Loan are used for Approved Loan Uses, such Permanent Loan shall be deemed to be an Approved Permanent Loan; and (b) Debt Service with respect to such Permanent Loan shall be calculated solely based on the usual, required, legitimate, and documented debt service payable by Developer and/or its Affiliates with respect to the portion of the Permanent Loan deemed to be an Approved Permanent Loan; provided that: (a) for purposes of such calculation, debt service with respect to the Permanent Loan shall be fairly and equitably allocated to the portion of the Permanent Loan deemed to be an Approved Permanent Loan based on the portion of the principal balance of the Permanent Loan used for Approved Loan Uses to the portion of the principal balance of the Permanent Loan used for purposes other than Approved Loan Uses; and (b) if a Permanent Loan is secured by a mortgage lien on the Project and one or more other projects owned by Developer and/or its Affiliates, then no portion of the Permanent Loan shall be deemed to be an 1,\2002\3\PROJEC"'T ^ em.;!'::- [~:YrV8.1;1^ AL.DOC 2 9.LHl02 CL r WI Approved Permanent Loan, unless such other projects are underwritten by the Mortgage Lender making the Permanent Loan as presenting substantially the same risk as, or less risk than, the Project. Notwithstanding anything to the contrary set forth herein, to qualify as an Approved Permanent Loan, any Permanent Loan obtained from any Affiliate of Developer must contain terms that are the same as, or better than, those that would be obtained through an arms-length transaction with a commercial lender that is not an Affiliate of Developer. Base Amount shall mean a total amount of Project Rent and/or Capital Transaction Proceeds paid to CRC from Net Revenue Part S, which, when each payment of Project Rent and/or Capital Transaction Proceeds is discounted from its date of payment to the Closing Date using a monthly discount rate of .721 % (equating to an effective compounded interest rate of 9% per annum), has a total net present value of $600,000.00 BuildinQs shall mean two or three story buildings: (a) containing at least: (i) 85 residential apartment units; and (ii) 17,500 square feet of first floor retail space; provided that the entire first floor of the Building that fronts Main Street shall be retail space; and (b) being more particularly described on Exhibit H. Capital Transaction shall mean the closing of any: (a) Construction Loan or Permanent Loan; (b) sale, transfer or conveyance of all or any: (i) portion of the Project, the Project Site, the Buildings, and/or the Parking Facility; or (ii) right, title, interest or estate in or to all or any portion of the Project, the Project Site, the Buildings, and/or the Parking Facility; (c) sale, transfer or assignment of partnership interests, membership interests, shares of stock or other equity interests in Developer or an Affiliate of Developer if such sale, transfer or assignment is a Shell Assignment; (d) ground sublease of all or any portion of the Project, the Project Site, the Buildings, and/or the Parking Facility or other sublease that has substantially the same effect as a ground lease; or (e) any single transaction or series of transactions that: (i) has substantially the same effect as any of the sales, transfers, conveyances, assignments, ground subleases or other subleases descrfbed in clauses (b), (c) or (d); (ii) would be characterized or treated as a capital transaction by: (A) other owners of multi-family residential projects or retail projects that are located in the greater Indianapolis metropolitan area; or (B) generally accepted accounting principles. Capital Transaction Proceeds shall mean, with respect to respect to a specific Capital Transaction: (a) the Total Proceeds from, or with respect to, that Capital Transaction; less (b) amounts used from such proceeds for Approved Loan Uses; provided that Capital Transaction Proceeds shall not include any amount that all Parties agree shall be applied for the further development of the Project. Cash Payment shall mean a $600,000 payment comprised of the Earnest Money and cash, which payment has been deposited into the Escrow Account. Chanqe Order shall mean a change order executed by CRG and Developer finalizing the inclusion into the Final Developer Plans of a change proposed in a Change Order Request by Developer that is approved by CRC; provided that, in the case of a Permitted Change, such change order shall be effective if executed only by Developer. Chanqe Order Request shall mean a written request for a change to the Final Developer Plans. City shall mean the City of Carmel, Indiana. ClosinQ shall mean the closing with respect to the lease of the CRCSite to Developer, which closing shall include the execution of the Lease. ClosinQ Costs shall mean: (a) Developer's reasonable, actual, out-of-pocket costs incurred to: (i) conduct due diligence with respect to the CRC Site prior to the execution of the Lease (including, without limitation, obtaining a leasehold policy of title insurance, a minimum standard detail land title t\ZOO~^,3\PROJECT ,\GREEMEi'ilV8-Fli\,\L.DOC 3 '9jau()2 u~ (JI survey, an environmental site assessment, anda physical inspection); (ii) negotiate and obtain a commitment for an Approved Construction Loan or an Approved Permanent Loan (including, without limitation, points, fees, and loan costs paid to the Mortgage Lender); and (iii) negotiate the loan documents required to close an Approved Construction Loan or an Approved Permanent Loan; (b) customary fees and expenses for or of customary professional services incurred in connection with: (i) the due diligence with respect to the Project; (ii) negotiation and execution of the Lease; (iii) construction, redevelopment or restoration of the Project; and (iv) preparation and negotiation of documents incident to an Approved Construction Loan or an Approved Permanent Loan (including, without limitation, architectural, engineering, and legal fees and expenses); and (c) the following actual costs incurred as required to close an Approved Construction Loan or an Approved Permanent Loan: (i) fees paid to appraisers and inspecting architects and engineers that are not Affiliates of Developer; (ii) commissions paid to loan brokers that are not Affiliates of Developer; (iii) other financing costs paid to an Affiliate of Developer if such amounts are approved by a third-party equity investors in comparable transactions; (iv) costs to obtain a mortgagee's policy of title insurance, a survey, an environmental site assessment, and a physical inspection; and (v) amounts required to fund escrows for taxes or insurance, Closing Costs shall not include any of the Closing Cost Exclusions, Closinq Cost Exclusions shall mean: (a) Project Costs; (b) Operating Expenses; (c) Debt Service; (d) Reserve Costs; (e) any costs or expenses paid from an Additional Project Contribution or Additional Contribution Funding; (f) any costs or expenses paid directly by, or reimbursed by, any other party; and (g) any compensation paid by Developer to any Affiliate for the performance of services or the provisions of materials, if such compensation exceeds the amount of the compensation that Developer would have paid under a joint venture agreement with an unrelated third-party as a result of an arms-length negotiation in which Developer has not agreed to a reduced ownership interest in exchange for increased fees, Closinq Date shall mean the date of the Closing. Conditions for Development shall mean the conditions imposed by CRC in jts offer of the CRC Site for lease or sale and redevelopment, as set forth in the Notice of Sale, as the same have been or shall be amended by this Agreement Construction Loan shall mean a loan to fund the construction, restoration, replacement, or redevelopment of the Project. Construction Manaqement Fee shall mean a customary fee paid to Developer, or a general contractor that isan affiliate of Developer; provided that the Construction Management Fee shall not exceed 5% of the total costs incurred by Developer to construct the Project (other than the Construction Management Fee). Construction Trade shall mean any trade or other discrete aspect of construction of the Project. Conveyance Payment shall mean payment of an amount equal to the CRC Percentage applicable at the time, mu Itiplied by the Capital Transaction Proceeds; provided that the amount of the Conveyance Payment shall be reduced by any amounts paid by the successful bidder to CRC for the CRC Interest pursuant to the Offering. CRC Construction Plans shall mean the plans and specifications for completion of the CRC Site Work approved by Developer and set forth on Exhibit C; provided that: (a) such plans and specifications are subject to modification by eRC upon completion of the Final Developer Plans, so that CRC can coordinate completion of the CRC Site Work with construction of the Project; and (b) all modifications to such plans and specifications (including, without limitation, modifications contemplated pursuant to clause (a) of this definition) shall be subject to the approval of Developer, which approval shall not be withheld or delayed unreasonably. IWD02\,,\PRc\JEGI' AGI{Eb\lENCIV&-I1'1c"cL,DOC 4 9J:1ll02 u'- u CRC Construction Schedule shall mean the schedule for completion of the CRC Site Work approved by Developer and set forth on Exhibit D; provided that: (a) such schedule is subject to modification by CRC upon completion of the Final Developer Plans, so that CRC can coordinate completion of the CRC Site Work with construction of the Project; and (b) all modifications to such schedule (including, without limitation, modifications contemplated pursuant to clause (a) of this definition) shall be subject to the approval of Developer, which approval shall not be withheld or delayed unreasonably. CRC Interest shall mean fee simple title to the CRC Site, together with all of the rights of CRC as landlord under the Lease. CRC's Knowled!:le shall mean the knowledge of the following individuals with respect to the following corresponding matters: (a) the members of CRC and Steve Engelking as to all applicable matters; and (b) Kate Boyle Weese, John Duffy, and Dave Klingensmith as to: (i) applicable contamination, pollution, and other environmental and site matters; and (ii) applicable matters within the purview of their respective day-to-day responsibilities as employees of the City. CRC Percentaqe shall be: (a) 100%; minus (b) the then-applicable Developer Percentage. CRC Site shall mean that certain real estate located generally on Main Street, and bounded by First Street SW, First Avenue SW, West Main Street, and the Monon Trail, in the City, as more particularly described and/or depicted on Exhibit A-1. CRC Site Work shall mean: (a) that site work described in Exhibit B; and (b) causing the City on behalf of CRC to rezone the Lumberyard Parcel to the C-2 zoning classification of the City of Carmel/Clay Township, Indiana Zoning Ordinance. Cure Period shall mean a period of 30 days after a party failing to perform or observe any term or condition of this Agreement to be performed or observed by it receives notice specifying the nature of the failure; provided that: (a) if: (i) CRG fails to timely perform any element of the CRC Site Work; or (ii) Developer fails to timely perform any element of construction of the Project; then CRC or Developer, as the case may be, shall commence to remedy such failure within ten days after its occurrence; and (b) if any failure, other than a failure to pay any amount of money due, is of such a nature that it cannot be remedied within 30 days, despite reasonably diligent efforts, then the 30 day period shall be extended as reasonably may be necessary for the defaulting party to remedy the failure, so long as the defaulting party commences to remedy the failure within the 30 day period (or, in the case of a failure specified in clause (a) of this definition, within the ten day period), and diligently pursues such remedy to completion. Debt Service shall mean customary, mandatory, legitimate, and documented debt service periodically payable by Developer with respect to accrued interest on, and the principal balance of: (a) Approved Construction Loans; and (b) Approved Permanent Loans. Debt Service Break Even Date shall mean the date on which Total Revenue has been sufficient to pay all Operating Expenses, Project Reserve deposits, and Debt Service for three consecutive months. DesiQnated Time shall mean September 13, 2000, at 7:00 p.m. local time. DesiQn Development Documents shall mean detailed design development documents that describe and establish systems, equipment, and finishes for the Project, which documents shall be consistent in all material respects with the Project Site Plan, the Development Guidelines, the Conditions for Development, the Development Proposal, and the Laws. Developer Construction DrawinQs shall mean construction drawings with respect to the construction of the Project in accordance with the Design Development Documents, which drawings shall be I ,\2002\R\PRO.l rTrA C 1l1,r:.\I EN 1 V8.FL'-' AL DOC 5 !UnllO~ w , u consistent in all material respects with the Design Development Documents and the Developer Construction Schedule approved by CRC. Developer Construction Schedule shall mean a detailed schedule for construction of the Project in accordance with the Final Developer Plans, which schedule shall reflect that Developer shall: (a) commence construction of the Project by June 1, 2002; and (b) complete construction of the Project by December 31,2003. Developer PercentaQe shall mean a percentage, which percentage shall depend on whether Developer uses a Construction Loan and Permanent Loan to fund the Project Costs. If Developer uses a Construction Loan to fund the Project Costs, then the Developer Percentage shall be: (a) 80% until the Base Amount is paid in full; and (b) 90% after the Base Amount is paid in full. If Developer does not use a Construction Loan to fund the Project Costs, then the Developer Percentage shall be: (a) calculated at Project Stabilization; and (b) equal to a fraction: (i) the numerator ofwhich is the total Project Costs, minus $600,000.00; and (ii) the denominator of which is the total Project Costs; provided that such percentage shall be applicable until the Base Amount is paid in full, at which time the Developer Percentage shall be increased by Yz of the CRC Percentage applicable prior to the payment of the Base Amount. Development Fee shall mean a customary fee paid to Developer, or a contract developer that is an affiliate of Developer; provided that the Development Fee shall not exceed 3% of the total costs incurred by Developer to construct the Project (other than the Development Fee and the Construction Management Fee). Development Guidelines shall mean those guidelines for development of the CRe Site set forth on Exhibit E. Development Proposal shall mean that certain proposal, and all related materials, submitted by Developer to CRC, as conditionally accepted by CRC (including, without limitation, the elevation renderings and descriptions attached hereto as Exhibit F). Earnest Money shall mean the amount of $25,000.00, which was deposited by Developer with CRC at the time that Developer submitted the Development Proposal. Eliqible Buver shall mean a person or entity that is not an Affiliate of Developer. Escrow Account shall mean the escrow account established by the Escrow Agent: (a) into which the Cash Payment has been deposited; and (b) in which the Cash Payment is held pursuant to the Escrow Agreement. Escrow A!:lent shall mean Chicago Title Insurance Company, or such other escrow agent on which the parties mutually may agree. Escrow A!:lreement shall mean the agreement executed by and among eRC, Developer and the Escrow Agent with respect to the escrow and release of this Agreement and the Cash Payment. Event of Default shall have the meaning set forth in Subsection12(a). Final Developer Plans shall mean the aggregated Final Documents and Drawings. Final Documents and Drawinqs shall mean final schematic design drawings, final design development documents, the final construction schedule, and final construction drawings, as each is finalized and approved or reviewed by CRC pursuant to Section 8. Force Majeure shall mean: (a) an .act of the other party; (b) an omission of the other party to perform 1:\;lOO:l',;,IP ~OJ r-;c I' AGHE:E:.\ll"YrV~-FI"}\ L.DOC 6 m;i.Il02 u I U a required act; or (c) any other cause that is not within the reasonable control of such party, including, without limitation: (i) any act of God; (ii) any fire, explosion, or other casualty; (iii) inclement weather; (iv) war, insurrection, riot, or police action; (v) restraint by of governmental, civil or military authorities; (vi) sabotage; (vii) the unavailability of materials, equipment, services, or labor, so long as such unavailability does not result from the act or omission of the party claiming Force Majeure; (viit) strike, lockout, or other industrial or labor disturbance; and (ix) utility or energy shortages or acts or omissions of public utility providers. InspectinQ Architect shall mean an architect chosen by CRC, at its sole expense, for purposes of inspecting construction of the Project. Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and/or decrees. Lease shall mean the lease with respect to the CRC Site to be executed by and between CRC and Developer at the Closing, which lease shall: (a) be consistent with the terms and conditions of this Agreement; (b) contain customary terms and conditions for a pure net ground lease of commercial property; (c) be subordinate to easements, agreements, and other instruments necessary to develop and construct the Project consistent with the terms and conditions of this Agreement; and (d) otherwise contain the terms and conditions set forth in Section 4. Leasehold Policy shall mean a leasehold policy of title insurance with respect to the CRC Site, which leasehold policy of title insurance shall: (a) be issued by the Title Insurer; (b) insure the leasehold interest of Developer under the Lease; and (c) be subject only to the Permitted Exceptions. Lum bervard Parcel shall mean that certain real estate more particularly described and/or depicted on Exhibit A-2. Monthlv Payment Date shall mean the 20th day of each month during the term of the Lease. Mortqaqe Lender shall mean: (a) a commercial lender that makes or advances an Approved Construction Loan or an Approved Permanent Loan; (b) the successor or assign of such lender; provided that, if the Mortgage Lender is an Affiliate of Developer, then, for the Affiliate of Developer to qualify as a Mortgage Lender, the Approved Construction Loan or the Approved Permanent Loan, and any advances thereunder, must be on terms that are the same as, or better than, those that would be obtained through an arms-length transaction with a commercial lender that is not an Affiliate of Developer. Net Revenue shall mean, with respect to a specified period, Total Revenue for that period, less amounts paid during that period for the following purposes: (a) first, for payment of DebtService and Operating Expenses; and (b) second, for payment into the Project Reserves. Net Revenue Part A shall mean the portion of the Net Revenue and Capital Transaction Proceeds that, as provided in Subsections 4(b) and (d), are allocated to the account of Developer. Net Revenue Part B shall mean the portion of the Net Revenue and Capital Transaction Proceeds that, as provided in Subsections 4(b) and (d), are allocated to the account of CRC. Notice of Sale shall mean that certain Notice of Purchase or Lease of Property for the Carmel Old T own Redevelopment Project. OfferinQ shall mean an offer by CRG of the CRC Interest, which offering shall be made on the condition that: (a) the Conveyance Payment satisfies in full all future rent obligations of the tenant under the Lease; (b) the winning bidder shall pay all Real Estate Taxes payable after the CRC Interest is conveyed to the winning bidder; and (c) the Lease shall be modified as necessary to incorporate the I'WOO~\3\I'Hl)IJo:CT AGRH"\lLY1V3-Fl;>;^I,DOC 7 9J~nO',? u o foregoing conditions. Operatino Expenses shall mean reasonable, customary, legitimate, and documented costs and expenses that Developer incurs to operate the Project (including without limitation: (a) after Project Stabilization, management fees (not to exceed 5% of gross rental amounts from the Project); (b) wages, salaries, and benefits of maintenance personnel (not to exceed the amount fairly and equitably allocated to the Project based on the proportion of the working time such personnel spent at the Project to the working time spent at other premises); (c) charges under maintenance and service contracts; (d) costs and expenses to perform or provide maintenance or repairs with respect to the Project (including, without limitation, maintenance and repairs required by this Agreement); (e) premiums for customary insurance with respect to the Project (including, without limitation, coverages required by this Agreement); (f) costs and expenses to provide heat, ventilation, air conditioning, and other utility services for the Project; (g) payments of Real Estate Taxes after construction of the Project is completed; (h) costs to sublease premises within the Project to Subtenants (including, without limitation, costs for subtenant improvements, subtenant allowances, and leasing commissions); (i) costs to satisfy the obligations of the sublandlord or sublessor under Subleases; and U) costs for advertising with respect to, and promotion of, the Project. Capital repairs, replacements, and improvements shall be treated as capital items, and the portion of the costs of such capital repairs, replacements, and improvements that cannot be paid from Project Reserves shall be capitalized or expensed in accordance with generally accepted accounting principles consistently applied. Operating Expenses shall not include any of the Operating Expenses Exclusions. Notwithstanding anything to the contrary set forth herein, if: (a) Developer compensates an Affiliate for the performance of services or the provision of materials; and (b) such compensation exceeds the amount of the compensation that Developer would have paid under a joint venture agreement with an unrelated third-party as a result of an arms-length negotiation in which Developer has not agreed to a reduced ownership interest in exchange for increased fees; then 200% of the excess compensation paid to such Affiliate for such services or materials shall be deducted from the total amount of Operating Expenses. OperatinQ Expenses Exclusions shall mean: (a) Closing Costs; (b) Project Costs; (c) Debt Service; (d) Reserve Costs; (e) any costs or expenses paid from Additional Contribution Funding; (f) expenses that are paid directly by, or reimbursed by, a subtenant or any other party; (g) any amounts for depreciation; (h) costs or expenses to pay the general overhead of Developer or its Affiliates; (i) commissions to Developer and/or Affiliates of Developer, except in the case of a sharing or splitting arrangement with a broker that is not an Affiliate of Developer where the total commission paid (including the amount paid to Developer and/or its Affiliate) does not exceed a customary commission payment; m payments of principal, interest, or any other amounts required by any financing or refinancing (including, without limitation, Debt Service); (k) income, profit, franchise, or other taxes (including, without limitation, taxes an Subtenant's personalty); (I) late fees, penalties, or fines of any nature; (m) wages salaries, and benefits of personnel above the grade of vice-president; (n) any amounts paid as damages for breaches of Subleases or any other agreements; {oj costs of removing hazardous substances from, or remediating environmental contamination with respect to, the Project Site, to the extent that such hazardous substances or environmental contamination exist on the Project Site as a result of, or in connection with, the negligent activities of Developer and/or its Affiliates on the Project Site; (p) any expenses of any nature properly or equitably allocable or attributable to premises other than the Project; (q) compensation paid by Developer to any Affiliate for the performance of services or the provisions of materials, if such compensation exceeds the amount of the compensation that Developer would have paid under a joint venture agreement with an unrelated third-party as a result of an arms-length negotiation in which Developer has not agreed to a reduced ownership interest in exchange for increased fees; and (r) any other cost or expense that, in accordance with generally accepted accounting principles, consistently applied, would not be included as an operating expense. Parkino Facility shall mean a surface and/or structured parking facility, or parking deck that, in conjunction with the immediately adjacent on-street parking, provides: (a) between 1.0 and 1.5 !:\20IJ2\J\PROJECT ,\GREE~I EN.l"S.FlNAL. DOC 8 ~U~n()'d u u parking spaces for each one-bedroom residential apartment unit located in the Buildings; (b) at least 2.0 parking spaces for each two-bedroom residential apartment unit located in the Buildings; and (c) at least four parking spaces per 1,000 square feet of retail space located in the Buildings. Permanent Loan shall mean a financing or refinancing of or for the Project that is not a Construction Loan. Permitted ChanQe shall mean any change to that portion of the Final Developer Plans consisting of the final Developer Construction Drawings, so long as such change is: (a) consistent with the Design Development Documents approved by CRC; and (b) permitted by the Laws. Permitted Exceptions shall mean any exceptions to title reflected in the Title Commitment: (a) that are not Title Defects; or (b) with respect to which Developer: (i) does not object within 20 days after receipt of the Title Commitment, all title exception documents, and the Survey (except the lien of any mortgage or other security instruments to be released at or before the Closing); (ii) agrees in writing to accept; or (iii) waives any objections pursuant to the terms and conditions of the Escrow Agreement. Phase One Environmental Assessment shall mean a new Phase One Environmental Assessment of the CRC site to be provided to Developer by CRC pursuant to the Escrow Agreement. Plan Refinement Process shall mean the process for refining the Final Developer Plans set forth in Section 8. Preference Amount shall mean an initial principal amount of $500,000.00, together with the amount of any Additional Contribution Funding. The principal balance of the Preference Amount shall bear interest at .792% per month. All accrued but unpaid interest on the Preference Amount shall be added to, and become a part of, the principal balance of the Preference Amount if not paid: (a) as provided in Subsection 4(b) on the last day of the month in which such interest accrued; or (b) as provided in Subsection 4(d) on the day of closing an Approved Permanent Loan. Proiectshall mean the Buildings, the Parking Facility, and related improvements to be constructed in accordance with the Final Developer Plans. Proiect BudQet shall mean a preliminary budget of the Project Costs, which preliminary budget is attached as Exhibit J. Proiect Costs shall mean: (a) Developer's reasonable, actual, out-of-pocket costs incurred to: (i) design and develop the Project (including, without limitation, the Development Fee); (ii) sublease premises in the Project to Subtenants (including, without limitation, costs for subtenant improvements, subtenant allowances, and leasing commissions); (Iii) perform site preparation work, as required to construct the Project in accordance with the Final Developer Plans; (iv) construct the Project in accordance with the Final Developer Plans (including, without limitation, the Construction Management Fee, costs for general conditions, temporary utilities, equipment rental, and wages, salaries, and benefits of construction personnel (not to exceed the amount fairly and equitably allocated to the Project based on the proportion of the working time such personnel spent at the Project to the working time spent at other premises)); (v) redevelop, restore or replace the Project in accordance with plans and specifications approved by CRC and Developer (which approval shall not be unreasonably withheld, delayed or denied), net of any insurance or condemnation proceeds received by Developer in connection with a casualty or condemnation, the effects of which casualty or condemnation are the cause of such redevelopment, restoration, or replacement; (vi) provide customary insurance with respect to the Project (including, without limitation, coverages required by this Agreement), or fund escrows for insurance until construction of the Project is completed; (vii) pay Real Estate Taxes, or fund escrows for Real Estate Taxes, until construction of the Project is completed; (viii) pay Debt SerVice until the Debt Service Break Even Date; and (ix) pay management fees (not to exceed 5% of gross rental amounts from the Project) prior to Project Stabilization; (b) 1\20D2\Cl\I'HOJFCT AGHEF.l1ENTVR-FJz.lAlllOC 9 9J;uI02' u u carry costs on the Lumberyard Parcel, calculated at 9% per annum from the date that Developer acquired the Lumberyard Parcel until the date that Developer closes on the Construction Loan (or the date hereof if Developer does not use a Construction Loan to fund Project Costs); and (c) soft and hard costs (including redevelopment, restoration and replacement costs) of a nature identified in the Project Budget. Project Costs shall not include any of the Project Costs Exclusions. Notwithstanding anything to the contrary set forth herein, if: (a) Developer compensates an Affiliate for the performance of services or the provisions of materials; and (b) such compensation exceeds the amount of the compensation that Developer would have paid under a joint venture agreement with an unrelated third-party as a result of an arms-length negotiation in which Developer has not agreed to a reduced ownership interest in exchange for increased fees; then 200% of the excess compensation paid to such Affiliate for such services or materials shall be deducted from the total amount of Project Costs; provided that past approval by CRC of such an arms-length transaction with an unrelated third- party shall serve as prima facie evidence that the price paid for the services performed and/or materials provided in such transaction was commercially reasonable. Proiect Costs Exclusions shall mean: (a) Debt Service after Debt Service Break Even Date; (b) Reserve Costs after Debt Service Break Even Date; (c) any costs or expenses paid from an Additional Project Contribution or Additional Contribution Funding; (d) any costs or expenses paid directly by, or reimbursed by, any other party; (e) unexpended amounts of contingency except for a warranty reserve of $150.00 per apartment unit; provided that, when such warranties expire, the full amount remaining in such reserve shall be included in Total Revenue; (f) costs or expenses to pay the general overhead of Developer or its Affiliates, which costs or expenses are not shown on the Project Budget; (g) any fee paid to Developer, or a general contractor that is an Affiliate of Developer, to the extent that such fee exceeds the Construction Management Fee; (h) any development fee paid to Developer, or a contract developer that is an Affiliate of Developer, to the extent that such fee exceeds the Development Fee; or (i) any compensation paid by Developer to any Affiliate for the performance of services or the provisions of materials, to the extent that such compensation exceeds the amount of the com pensation that Developer would have paid under a joint venture agreement with an unrelated third-party as a result of an arms-length negotiation in which Developer has not agreed to a reduced ownership interest in exchange for increased fees; provided that past approval by CRC of such an arms-length transaction with an unrelated third-party shall serve as prima facie evidence that the price paid for the services performed and/or materials provided in such transaction was commercially reasonable. Proiect Debt shall mean: (a) all accrued but unpaid interest on the Approved Construction Loans and/or Approved Permanent Loans on which debt service qualifies as Debt Service; and (b) the outstanding principal balance of such Approved Construction Loans and/or Approved Permanent Loans. Proiect Rent shall mean all payments made by Developer to CRC pursuant to Section 4. Proiect Reserves shall mean accounts maintained by Developer at one or more federally-insured national banks into which Developer deposits funds for capital repairs, replacements and improvements to or of the Buildings and the Parking Facility; provided that: (a) Developer shall fund and maintain such accounts so that the balances in such accounts are adequate to pay for capital repairs, replacements and improvements to or of the Buildings and the Parking Facility when and as such capital repairs, replacements and improvements reasonably would be expected to be necessary; and (b) if Developer funds or maintains such accounts so that the balances in such accounts exceed the 110% of the greater of: (i) the customary amounts of reserves maintained by other owners of multi-family residential projects and retail projects that are: (A) of similar age and size; and (B) located in the greater Indianapolis metropolitan area; or (ii) the amounts actually required to pay for capital repairs, replacements and improvements to or of the Buildings and the Parking Facility when and as such capital repairs, replacements and improvements reasonably would be expected to be necessary; then, at the election of CRC, the full amount of such excess shall be added to Total Revenue or Total Proceeds for purposes of this Agreement. !;\2002\3\I']{O,JECI' AGREDIENTV8-FINALDOC 10 9.LlJl02 u u Proiect Site shall mean the eRe Site and the Lumberyard Parcel. Proiect Site Plan shall mean the site plan for the Project that has been approved by eRe and Developer, which site plan is attached hereto as Exhibit G. PrOiect Stabilization shall mean the time at which at least 85% of the Project has been occupied by rent-paying tenants for at least two consecutive months. Real Estate Taxes shall mean all real estate taxes, assessments, fees, levies, or charges of any nature levied or imposed by any governmental or quasi-governmental agency, department, or body on, against, or with respect to the real property comprised of the Buildings and the Project Site; provided that Real Estate Taxes shall not include fees or penalties of any nature for late payment of any such levy or imposition. Release Conditions shall mean the conditions to the release of this Agreement from the escrow created pursuant to the Escrow Agreement. Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for the construction, operation and/or use of the Project by Developer and/or the Subtenants. Required Use shall mean the use of the Project consistent with, and pursuant to, the terms and conditions of, this Agreement. Reserve Costs shall mean costs and expenses paid from the Project Reserves for capital repairs, replacements and improvements to or of the Buildings and the Parking Facility when and as such capital repairs, replacements and improvements are required. Schematic Desi!::jn Drawinqs shall mean detailed schematic design drawings for the Project, which drawings shall be consistent in all material respects with the Project Site Plan, the Development Guidelines, the Conditions for Development, the Development Proposal, and the Laws. Shell Assiqnment shall mean a sale, transfer or assignment of partnership interests, membership interests, shares of stock, or other equity interests in Developer or an Affiliate of Developer, if: (a) such sale, transfer, or assignment occurs prior to Project Stabilization; or (b) the effect of such sale, transfer or assignment is substantially the same as a sale, transfer, or conveyance of: (i) all or substantially all of the Project, the Project Site, the Buildings, and/or the Parking Facility; or (ii) right, title, interest or estate in or to all or substantially all of the Project, the Project Site, the Buildings, and/or the Parking Facility (including, without lim itation, a transaction in which more than 66% of the partnership interests, membership interests, shares of stock, or other equity interests in Developer are sold, transferred or assigned). Notwithstanding anything to the contrary set forth herein, a transaction, or a series of related transactions, in which 66% or fewer of the partnership interests, membership interests, shares of stock, or other equity interests in Developer or an Affiliate of Developer are sold, transferred, or assigned shall not be deemed to be a Shell Assignment. Statute shall mean IND CODE ~36-7-14-22. Sublease shall mean a written sublease of premises within the Project to a Subtenant. Subtenant shall mean a party that: (a) subleases from Developer premises within the Project; and (b) is not an Affiliate of Developer; provided that an Affiliate of Developer may be a Subtenant if such Affiliate: (i) subleases, for terms not to exceed two years, 20% or fewer of the apartment units available for rent in the Buildings for corporate apartments; and (ii) pays rent for the subleased apartment units at market rates, which market rates shall be determined as of the date that the term of the applicable sublease commences. Notwithstanding anything to the contrary set forth herein, if: !:\20D2\:3\I'ROJ EGl' AGREl~\IEi'd,'g-FI"AL.D OC 11 9j;JJ102 u u (a) an Affiliate of Developer subleases any of the apartment units; and (b) the rent paid by such Affiliate for its apartment units is less than the market rates; then 200% of the market rate for such apartment units shall be included in Total Revenue; provided that the rent being charged to other new tenants that are not Affiliates of Developer for similar apartment units at the time that an apartment un it is leased to an Affiliate of Developer shall serve as prima facie evidence of the market rate of rent for the apartment unit leased to the Affiliate of Developer. Survey shall mean a survey of the CRC Site that: (a) complies with the Minimum Standard Detail Requirements for AL TNACSM Land Tille Surveys; (b) complies with Indiana Administrative Code Title 865, Article 1, Rule 12; and (c) is certified as of a date that is no earlier than 45 days prior to the Closing Date. Tille Commitment shall mean a commitment for the Leasehold Policy, together with all exception documents referenced in such commitment. Tille Defects shall meah conditions or defects disclosed in the Tille Commitment, or by the Survey, that, in the sole determination of Developer, materially and adversely interfere with the development of the Project on the CRC Site or the use of the CRC Site for the Required Use; provided that, the lien of any mortgage or other security instruments to be released at or before the Closing shall not be a Title Defect. Title Insurer shall mean Chicago Title Insurance Company, or such other title insurer on which the parties mutually may agree. Total Proceeds shall mean the total amount of all proceeds from, or with respect to, any Capital Transaction; provided that, if (a) Developer pays an Affiliate of Developer for goods or services at more than the market rate for such goods or services; and (b) the effect of paying for such goods or services is to reduce the amount of proceeds from, orwith respect to, a Capital Transaction; then the amount paid for such goods or services shall be included in Total Revenue. Total Revenue shall mean: (a) the total amount of all rents and other payments received by Developer or its Affiliates pursuant to leases for the Project; and (b) any other revenues or income of any nature received by Developer or its Affiliates from, or with respect to, the Project; provided that, if: (a) for the purpose of diverting the amount of rents received by Developer or its Affiliates from the Project, Developer or its Affiliates: (i) provides a Subtenant with a rental rate for premises in the Project that is lower than the market rate for such premises; and (ii) provides the same Subtenant, or an Affiliate of such Subtenant, with a rental rate for premises owned or controlled by Developer or its Affiliate that is higher than the market rate for such premises; then the average of the amount of rent received for the premises in the Project and the amount of the rent received for such other premises shall be included in Total Revenue; (b) Developer provides a subtenant that is an Affiliate of Developer with a rental rate for premises in the Project that is lower than the market rate for such premises, then 200% of the difference in the market rental rate for such premises shall be included in Total Revenue; or (c) Developer provides an Affiliate of Developer with goods or services at less than the market rate for such goods or services, and the effect of providing such goods or services is to reduce the amount of revenues or income received by Developer or its Affiliates from, or with respect to, the Project, then 200% of the difference in the market rate for such goods and services shall be included in Total Revenue; provided that Total Revenue shall not include any Total Proceeds or Additional Project Contributions. Vacation shall mean the vacation by CRC of all public rights-of-way within the CRC Site. Yearlv ReportinQ Date shall mean each March 30th during the term of the Lease. 2. Obligations of Parties. CRC shall: (a) lease the CRC Site to Developer pursuant to the Lease; (b) complete the CRC Site Work in accordance with the CRG Construction Plans and the eRC 1:\2002\3\PROJECT AGHEDI [".lV8.FI".Al..DOC 12 Q.J~111)2 u u Construction Schedule; (c) pursuant to the provisions of the C-2 zoning classification of the City of Carmel/Clay Township, Indiana Zoning Ordinance, cause the City on behalf of CRG to rezone the Lumberyard Parcel to the C-2 zoning classification on of before the date of completion of the CRC Site Work; and (d) complete the Vacation on or before January 31, 2002; all subject to the terms and conditions of this Agreement. Developer shall: (a) lease the CRC Site from CRC pursuant to the Lease; and (b) construct the Project in accordance with the Development Guidelines and the Final Developer Plans; all subject to the terms and conditions of this Agreement. 3. Closing Date. Subject to the terms and conditions of this Agreement, the Closing shall occur within 15 days after satisfaction of the Release Conditions; provided that, in the event that the Closing has not occurred on or before February 28, 2002, then either party shall have the right to terminate this Agreement and the Escrow Agreement. The Closing shall take place at the office of the Title Insurer, or at such other place as CRC and Developer mutually agree. At the Closing, the Gash Payment shall be released from the Escrow Account, and paid to CRC in cash or by wire transfer. 4. Lease. In addition to the standard terms and conditions for a triple net ground lease of commercial property in the greater Indianapolis metropolitan area, the Lease shall contain the following terms and conditions: (a) Term. The initial term of the Lease shall be 50 years. Developer shall have the option to extend the term of the Lease for five periods of ten years each; provided that the term of the Lease automatically shall be extended for each ten year period, unless Developer provides written notice to GRG of its intent not to extend the term of the Lease at least twelve months prior to the expiration of the initial term or the then current extension term. (b) Allocation and Payment of Net Revenue. The Developer Percentage of the Net Revenue as of the last day of the calendar month immediately preceding the Monthly Payment Date shall be: (i) allocated to Net Revenue Part A; and (ii) paid 10 Developer on the Monthly Payment Dale. The CRC Percentage ofthe Nel Revenue as of the last day of the calendar month immediately preceding the Monthly Payment Date shall be: (i) allocated to Net Revenue Part B; and (ii) paid on the Monthly Payment Date to: (A) Developer, until payments from Net Revenue Part B have paid the Preference Amount (including Ihe portion of the Preference Amount comprised of accrued interest); and (B) GRG, after payments from Net Revenue Part B have paid the Preference Amount (including the portion of the Preference Amount comprised of accrued interest). Notwithstanding anything to the contrary set forth herein, prior to Project Stabilization: (i) all Net Revenue shall be paid 10 Developer; and (ii) the Net Revenue allocated to Net Revenue Part 8 shall be applied on a dollar for dollar basis to payment of the Preference Amount (including the portion of the Preference Amount comprised of accrued interest); provided that, if, prior to Project Stabilization, the Preference Amount has been reduced to $0, then, until Project Stabilization, all Net Revenue shall be allocated and paid as otherwise provided by the terms and conditions of this Subsection. (c) Net Revenues Reporting and Payment. (i) On or before each Monthly Payment Date, Developer shall: (A) provide to CRC financial information with respect to the Project that is certified to CRG by an officer of Developer and sets forth the following with respect to the immediately preceding period: (1) the amounts of Total Revenue, Project Debt, Debt Service, Operating Expenses, and Net Revenue; and (2) the current balance of the Preference Amount (including the balances of the portions of the Preference Amount comprised of principal and accrued interest); ] \2002\0\1' HOI EG I' AG H EE\l ~'.N'l Y8-r"lNAL DOC 13 9Jan02 u u (3) the current balance of the Base Amount; and (4) the balances in Net Revenue Part A and Net Revenue Part B; and (B) pay to CRC and/or Developer any amounts due and owing to CRC and/or Developer pursuant to Subsection 4(b). (ii) On or before each Yearly Reporting Date, Developer shall provide to eRe certified, audited financial information with respect to the Project that sets forth the following with respect to the immediately preceding calendar year: (A) amounts of Total Revenue, Project Debt, Debt Service, Operating Expenses, and Net Revenue; and (B) the balances in Net Revenue Part A and Net Revenue Part B. If such financial information shows an underpayment to eRC of amounts due and owing to CRC from Net Revenue Part B pursuant to Subsection 4(b) for the immediately preceding calendar year, then Developer shall pay the full amount of such underpayment to CRC when Developer provides to eRe the financial information with respect to that calendar year. If such financial information shows an overpayment to CRC of amounts due and owing to eRe from Net Revenue Part B pursuant to Subsection 4(b) for the immediately preceding calendar year, then Developer may apply the full amount of such overpayment to the next payments of amounts due and owing to CRC from Net Revenue Part B pursuant to Subsection 4(b). (d) Allocation and Payment of Capital Transaction Proceeds. The Developer Percentage of the Capital Transaction Proceeds shall be: (]) allocated to Net Revenue Part A; and (ii) paid to Developer upon closing the Capital Transaction. The CRC Percentage of the Capital Transaction Proceeds shall be: (i) allocated to Net Revenue Part B; and (ii) paid upon closing the Capital Transaction to: (A) Developer, until payments from Net Revenue Part B have paid the Preference Amount and any interest thereon; and (B) CRC, after payments from Net Revenue Part B have paid the Preference Amount and any interest thereon. Notwithstanding anything to the contrary set forth herein, Developer shall not enter into, agree to, or close any Capital Transaction until after Project Stabilization. (e) Capital Transaction Reporting and Payment. (i) At least 15 days before each Capital Transaction, Developer shall provide to eRC accurate information with respect to the Capital Transaction that sets forth: (A) the projected amounts of: (1) Total Proceeds from that Capital Transaction; (2) Project Debt being paid off with the Total Proceeds from that Capital Transaction; (3) Project Costs, Closing Costs, Operating Expenses, and/or Debt Service being paid with Total Proceeds from that Capital Transaction; and (4) Capital Transaction Proceeds from that Capital Transaction; (B) the projected balances in Net Revenue Part A and Net Revenue Part B after the occurrence of the Capital Transaction and before the payment to CRC of any Capital Transaction Proceeds pursuant to Subsection 4(d); and (C) the projected payment of Capital Transactions Proceeds to eRe pursuant to Subsection 4(d) as,a result of the Capital Transaction. (ii) On the date that each Capital Transaction occurs, Developer shall provide to CRG: (A) a certified copy of the closing statement with respect to the Capital Transaction; and (B) certified I ,\~[){)2Vi\PROJEcr A r; RJ:Lvl J:N" JV8- FINAL.DOC 14 9J;UI02 u u information with respect to the Capital Transaction that sets forth: (1) the actual amounts of: (a) Total Proceeds from that Capital Transaction; (b) Project Debt being paid off with the Total Proceeds from that Capital Transaction; (c) Project Costs, Closing Costs, Operating Expenses, and/or Debt Service being paid with the Total Proceeds from that Capital Transaction; and (d) Capital Transaction Proceeds from that Capital Transaction; (2) the actual balances in Net Revenue Part A and Net Revenue Part B after the occurrence of the Capital Transaction and before the payment to CRC of any Capital Transaction Proceeds pursuant to Subsection 4(d); and (3) the payment to CRC of any Capital Transaction Proceeds pursuant to Subsection 4(d) as a result of the Capital Transaction. (f) Lender Protection. The Lease shall contain the Mortgage Lender protections set forth on Exhibit K. (g) Offering. If Developer has entered into a contract with an Eligible Buyer for the transfer or conveyance of Developer's right, title, and interest in and to the Project, then Developer shall have the right to require CRe to conduct the Offering; provided that, if CRC conducts the Offering, then, contemporaneously with the closing of its transaction with the Eligible Buyer, Developer shall pay the Conveyance Payment to CRC. At the closing of the conveyance of the CRC Interest to the successful bidder, CRC and/or the successful bidder, as the case may be, shall execute and deliver: (i) a limited warranty deed conveying to the successful bidder fee title to the CRC Site subject to: (A) the Lease, if applicable; (B) any exceptions to title shown on the Leasehold Policy; (C) any other exceptions to title that do not materially and adversely interfere with the development of the Project on the CRe Site or the use of the eRe Site for the Required Use; and (D) any exceptions to title arising under, by, through or based upon the actions of the Developer; (ii) an assignment assigning to the successful bidder all of the right, title, and interest of CRe in and to the Lease; provided that, if Developer is the successful bidder, then CRC and Developer shall execute a termination of the Lease; (iii) a bill of sale conveying all of the right, title, and interest of GRG in and to any personal property comprising the GRG Interest; provided that, if a document other than a bill of sale is required for conveyance of any such property, then GRG shall execute and deliver such other document; (iv) an affidavit that CRC is not a "foreign person", in form and substance required by the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder; (v) a fully executed confirmation by eRG of the representations and warranties set forth in Subsection 7(a)(ii), 7(a)(iii), and 7(a)(iv) in form and substance reasonably satisfactory to eRe and the successful bidder, modified as appropriate; (vi) representations and warranties: (A) stating that CRG has: 1:\2ll11~V1\Pl{QI ~Gr AC I{EE,~1.l:l'\;'rVK-FJi\'AL.DOC 15 9Jan02" u lJ (1) held all necessary meetings; and (2) taken all necessary actions in accordance with the Laws; in each case with respect to the conveyance of the GRG Interest; and (B) as reasonably may be necessary to allow the Title insurer to insurer fee simple title to the CRe Site in the name of the successful bidder, subject only to: (1) the Lease, if applicable; (2) any exceptions to title shown on the Leasehold Policy; (3) any other exceptions to title that do not materially and adversely interfere with the development of the Project on the eRC Site or the use of the CRG Site for the Required Use; and (4) any exceptions to title arising under, by, through or based upon the actions of the Developer; and (vii) such other customary documents as: (A) CRG or the successful bidder, as the case may be, or the Title Insurer reasonably may request in connection with the closing of the conveyance; or (B) reasonably may be necessary to allow the Title insurer to insure fee simple title to the CRC Site in the name of the successful bidder, subject only to: (1) the Lease, if applicable; (2) any exceptions to title shown on the Leasehold Policy; (3) any other exceptions to title that do not materially and adversely interferewith the development of the Project on the CRC Site or the use of the CRC Site for the Required Use; and (4) any exceptions to title arising under, by, through or based upon the actions of the Developer Notwithstanding anything to the contrary set forth herein, Developer shall not have the right to require the Offering until after Project Stabilization. (h) Rent Modification. At any time, Developer shall have the right to pay to CRC an amount equal to the greater of: (i) the Base Amount on the date of the payment; or (ii) $300,000.00. Upon receipt by CRC of such payment, CRC and Developer shall enter into an amendmentto the Lease providing that: (i) such payment satisfies in full all future rent obligations of the tenant under the Lease; and (ii) the Lease otherwise remains in full force and effect in accordance with its terms, 5. Closing Documents. At the Closing, Developer and/or GRC, as the case may be, shall execute and deliver the following documents: (a) the Lease; (b) a lessor's affidavit in form and substance satisfactory to Developer and the Title Insurer; (c) an affidavit that CRC is not a "foreign person", in form and substance required by the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder; (d) an affidavit that, to the best of CRC's knowledge, the eRG Site is not "property" under IRPTL, in form and substance reasonably satisfactory to Developer; (e) a fully executed confirmation by CRC of the representations and warranties set forth in Subsection 7(a), in form and substance reasonably satisfactory to Developer; (f) a fully executed confirm alion byDeveloper of the representations and warranties setforth in Subsection 7(b), in form and substance reasonably satisfactory to CRC; (g) copies of such resolutions, consents, authorizations, and other evidence as GRC or Developer, as the case may be, or the Title Insurer reasonably may request to establish that: (i) the persons executing and delivering the foregoing documents fully are empowered, and duly are authorized, by all necessary action of CRG or Developer, as the case may be; and (ii) the execution and delivery of such documents, the lease of the CRC Site to Developer, the lease of the CRC Site by Developer, and the performance by CRC or Developer, as the case may be, of its obligations hereunder and underthe foregoing documents duly have been authorized by eRC or Developer, as the case may be; and (h) such other customary documents and instruments as CRG or Developer, as the case may be, or the Title Insurer reasonably may request in connection with the Closing. At the Closing, CRC, at its cost and expense, shall deliver the Leasehold Policy to Developer. Developer shall pay for: (a) any mortgagee's policy of 1:\2002\3\PROTEC'T AGRED'iE\,')VB-FI\'ALOOC 16 9J.11)tl2 u w title insurance with respect to the CRC Site; and (b) all endorsements to the Leasehold Policy and any mortgagee's policy of title insurance. 6. Real Estate Taxes. Developer assumes and agrees to pay all Real Estate Taxes first becoming a lien against the CRC Site after the Closing Date as a Construction Cost or Project Operating Expense, as the case may be. CRC shall pay all Real Estate Taxes first becoming a lien against the CRC Site prior to the Closing Date. 7. Representations and Warranties. (a) CRC Representations. CRC represents and warrants to Developer that: (i) CRC shall not enter into any contracts or undertakings that would: (A) limit, conflict with, or constitute a breach of this Agreement; or (B) otherwise adversely affect the performance by Developer of its obligations under this Agreement; (ii) to the best of CRC's knowledge, there is not now, and there has not been, any contamination or pollution of the CRC Site or any groundwater thereunder by any hazardous waste, material, or substance in violation of any Laws, except as disclosed in the Phase One Environmental Assessment of the CRC Site; (iii) to the best of CRC's knowledge, the CRC Site is not "property" under IRPTL; (iv) CRC is a public body organized and exi~ting under the laws of the State of Indiana; and (v) CRC has the power to enter into this Agreement and to perform its obligations hereunder, CRC duly has been authorized by proper action to execute and deliver this Agreement, and to perform its obligations hereunder, and this Agreement is the legal, valid, and binding obligation of CRC. (b) Developer Representations. Developer represents and warrants to CRC that: (i) Developer shall not enter into any contracts or undertakings that would limit, conflict with, or constitute a breach of this Agreement; (ii) Developer and its general partners or managing members are authorized to do business in the State of Indiana; and (iii) Developer has the power to enter into this Agreement and to perform its obligations hereunder, Developer duly has been authorized by proper action to execute and deliver this Agreement, and to perform its obligations hereunder, and this Agreement is the legal, valid, and binding obligation of Developer. 8. Developer Construction. Developer shall construct the Project on the Project Site in accordance with the following terms and conditions: (a) Schematic DesiQn DrawinQs. On or before the date that is 60 days after the Closing Date, Developer, at its cost and expense, shall submit to CRC for its review and approval the Schematic Design Drawings. Within 15 days after CRC receives the Schematic Design Drawings, C RC shall deliver to Developer written notice that it approves or rejects the Schematic Design Drawings; provided that, if: (i) CRC rejects all or any part of the Schematic Design Drawings, then such notice shall: (A) specify the part or parts that CRC is rejecting; and (B) include the specific basis for such rejection; and (ii) within 20 days after CRC receives the Schematic Design Drawings, CRC fails to deliver to Developer written notice that it approves or rejects all or any part of the Schematic Design Drawings, then CRC shall be deemed to have approved the Schematic Design Drawings. Upon approval of the Schematic Design Drawings, the Schematic Design Drawings shall be final schematic design drawings, subject to modifications by Change Orders. (b) Desiqn Development Documents. Within 90 days after approval of the Schematic Design Drawings, Developer, at its cost and expense, shall submit to 1:\20('21311' HOJ ECT .\G llEE~'ll:"TV8.F]:-;,\LD OC 17 9J:I1lCi~ u u CRC for its review and approval the Design Development Documents and the Developer Construction Schedule. Within 15 days after CRC receives the Design Development Documents and the Developer Construction Schedule, CRC shall deliver to Developer written notice that it approves or rejects the Design Development Documents and/or the Developer Construction Schedule; provided that, if: (i) CRC rejects all or any part of the Design Development Documents and/or the Developer Construction Schedule, then such notice shall (A) specify the part or parts that CRC is rejecting; and (8) include the specific b.asis for such rejection; and (ii) within 20 days after CRC receives the Design Development Documents and/or the Developer Construction Schedule, CRC fails to deliVer to Developer written notice that it approves or rejects all or any part of the Design Development Documents and/or the Developer Construction Schedule, then CRC shall be deemed to have approved the Design Development Documents and/or the Developer Construction Schedule. Upon approval of all of the Des ign Development Documents with respect to any Construction Trade, the Design Development Documents shall be final as to such Construction Trade, subject to modifications by Change Orders. Upon approval of the Developer Construction Schedule, the Developer Construction Schedule shall be the final construction schedule with respect to construction of the Project, subject to modifications by Change Orders. (c) Developer Construction Drawinqs. Within 90 days after each approval of the Design Development Documents with respect to a Construction Trade: (i) Developer, at its cost and expense, shall submit to CRC for its review the Developer Construction Drawings with respect to such Construction Trade; and (ii) the Developer Construction Drawings for such Construction Trade shall be final construction drawings with respect to such Construction Trade, subject to modifications by Change Orders. (d) Resubmitted Documents. If, at any stage of the Plan Refinement Process, eRC, rather than approving any drawings, documents, or schedules, instead rejects any drawings, documents, or schedules prior to the time that such drawings, documents, or schedules are deemed to be approved pursuant to this Section, then, within 15 days after Developer receives notice from CRe that it has rejected any drawings, documents, or schedules, Developer shall: (i) revise the drawings, documents, or schedules; and (ii) resubmit the drawings, documents, or schedules to eRe. Within 15 days after CRe receives the resubmitted drawings, documents, or schedules, C RC shall deliver to Developer written notice that it approves or rejects the resubmitted drawings, documents, or scheduies; provided that, if eRe rejects all or any part of the resubmitted.drawings, documents, or schedules, then such notice shall specify the part or parts that CRC is rejecting, and shall include the specific basis for such rejection. Upon approval of the resubmitted drawings, documents, or schedules, the resubmitted drawings, documents, or schedules shall become part of the Final Developer Plans, subject to modifications by Change Orders. Notwithstanding the involvement of eRC in the Plan Refinement Process, Developer shall be responsible for insuring that revisions submitted by Developer to CRe in writing are implemented in the Final Developer Plans. (e) Final Developer Plans. Upon completion of the Final Documents and Drawings through the Plan Refinement Process, the aggregated Final Documents and Drawings shall constitute the complete Final Developer Plans, subject to modification by Change Orders. All references herein to the Final Developer Plans shall be deemed to be references to the Final Documents and Drawings, until such time as all of the Final Documents and Drawings are completed; provided that, when all of the Final Documents and Drawings are completed, all references herein to the Final Developer Plans shall be deemed to be references to the Final Developer 1,\200213\l'RQ1!,Cr AGllEDIEYJ"VS,!'l?>AL.DOC 18 9J;11102 w (j Plans, as modified by Change Orders. (f) Chanqes to Final Developer Plans. If Developer desires to make any changes to the Final Developer Plans, then Developer shall submit a Change Order Request to eRe for review and approval. Within 15 days after CRC receives the Change Order Request, CRC shall deliver to Developer written notice that it approves or rejects the Change Order Request; provided that: (i) CRC shall not withhold its approval unreasonably; (ii) if CRC rejects all or any part of the Change Order Request, then such notice shall: (A) specify the part or parts that CRC is rejecting; and (B) include the specific basis for such rejection; and (iii) if, within 20 days after CRC receives the Change Order Request, CRC fails to deliver to Developer written notice that it approves or rejects all or any part of the Change Order Request, then CRC shall be deemed to have approved the Change Order Request. If CRC approves a Change Order Request, then CRC and Developer shall execute a Change Order. Notwithstanding anything to the contrary set forth herein: (i) Developer shall not be required to obtain the approval of eRC with respect to a Permitted Change;'and (ii) a Change Order with respect to a Permitted Change shall be effective if executed only by Developer; provided that, with respect to a Permitted Change, Developer shall submit a Change Order Request to CRC for review. (g) Permits. Prior to commencing construction of the Project, Developer, at its cost and expense, shall obtain and submit to CRC for its review the Required Permits. (h) Construction. Developer shall construct the Project: (i) in a good and workmanlike manner; (ii) in accordance with the Final Developer Plans; and (iii) in compliance with the Development Guidelines and the Laws. (i) Commencement of Construction. Developer shall not be required to commence construction of the Project until the CRC Site Work is completed, notwithstanding the Developer Construction Schedule. 9. CRC Construction. CRG shall complete, or shall cause to be completed, the CRC Site Work: (a) in a good and workmanlike manner; (b) in accordance with the eRC Construction Plans and the CRC Construction Schedule; and (c) in compliance with ali Laws. CRC shall instruct and direct the contractors and subcontractors completing the eRe Site Work to concentrate, organize, and phase their work in a manner than provides reasonable flexibility to Developer in the concentration and organization of the construction of the Project. !n addition to the rights and remedies of Developer under Section 12, if there is a delay in the completion of the CRC Site Work, then CRC shall reimburse Developer upon demand for any and ali damages incurred as a result of such delay, including, without limitation, increased fees, personnel costs, attorney fees and expenses, increased costs of labor and materials, and increased Project Costs. 10. CRC Inspection. Upon reasonable written notice delivered to Developer, CRC and/or its Inspecting Architect may perform s(,Jch reasonable inspections of the construction of the Project as CRe and/or its Inspecting Architect reasonably deem to be necessary or appropriate. In the case of an inspection by CRC pursuant to this Section: (a) CRC and/or its Inspecting Architect shall specify the portion of the construction to be inspected; (b) eRC and/or its Inspecting Architect shall comply with all health and safety rules of which CRC has been informed that have been established for personnel present on the construction site; (c) CRC and/or its Inspecting Architect shall check in at the on-site construction office prior to commencing such inspection; and (d) CRe and/or its Inspecting Architect shall coordinate the inspections so that the inspections do not interfere with the performance of the construction on the construction site. Developer shall have the right to accompany, and/or to have its construction manager accompany, CRC and/or its Inspecting Architect during any inspection pursuant to this Section. In conjunction with any inspection pursuant to this Subsection, CRC shall j:\~UO~\:;\PHOJt;(.T AG Rt~D"ENTV8-FJ!\ AL.DOC 19 9J<ln{)~ u u notify Developer of any identified item or component of such construction that: (a) deviates materially from the Final Developer Plans; or (b) has not been performed materially in accordance with the terms and conditions of this Agreement; and Developer shall correct, or cause to be corrected, any such item or component as soon as is practicable. 11. Insurance. During construction of the Project, Developer shall maintain the policies of insurance described on Exhibit I. Each such policy shall: (a) be written by a company with a Best Rating of A or better; and (b) provide that the same shall not be modified or canceled without written notice to GRG at least 30 days in advance. The policy of general liability insurance required by this Section shall name GRG as an additional insured. Developer shall deliver to CRC certificates of the insurance policies required by this Section to be maintained by it, duly executed by the insurance company or the general agency writing such policies. 12. Default. (a) Events of Default. It shall be an "Event of Default" if either party fails to perform or observe any term or condition of this Agreement to be performed or observed by it: (i) with respect to the obligation to pay money, if such failure is not cured within ten days after such payment is due; and (ii) with respect to any other obligation, if such failure is not cured within the Gure Period. (b) Remedies Upon an Event of Default. Whenever an Event of Defaultoccurs, the non-defaulting party may take whatever actions at law or in equity are necessary or appropriate to: (i) collect any payments due under this Agreement; (ii) protect the rights granted to the non-defaulting party under this Agreement; (iii) enforce the performance or observance by the defaulting party of any term or condition of this Agreement, including, without limitation, the right to specifically enforce any such term or condition (it being acknowledged and understood by the parties that monetary damages are not an adequate remedy for the failure of either party to observe and/or perform any term or condition of this Agreement); or (iv) cure, for the account of the defaulting party, any failure of the defaulting party to perform or observe a material term or condition of this Agreement to be performed or observed by it. If the non-defaulting party incurs any costs or expenses in connection with exercising its rights and remedies under, or enforcing, this Agreement, then the defaulting party shall reimburse the non-defaulting party for all such costs and expenses, together with interest at the rate of 15% per annum. (c) No Remedv Exclusive. No right or remedy herein conferred upon, or reserved to, a non-defaulting party is intended to be exclusive of any other available right or remedy, unless otherwise expressly stated; instead, each and every such right or remedy shall be cumulative, and shall be in addition to every other right or remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission by a non-defaulting party to exercise any right or remedy upon any Event of Default shall impair any such right or remedy, or be construed to be a waiver thereof, and any such right or remedy may be exercised from time to time, and as often as may be deemed to be expedient. To entitle a non-defaulting party to exercise any right or remedy conferred upon, or reserved to, the non-defaulting party, it shall not be necessary for the non-defaulting party to give notice to the defaulting party, other than such notice as may be required by this Section or by the Laws. 13. Recapture. by CRC. Subject to Section 19, if Developer has not commenced construction of the Project within 120 days after the date of the later of: (a) the completion of the GRG Site Work; or (b) the scheduled date for commencement set forth in the Developer Construction Schedule; then, at any time until construction commences, CRC may elect to terminate the Lease by delivery of written 1\2002\'l\PROJEc.T /\GREEMEi'iTVil-m,ALDOC 20 9J;w02 u u notice to Developer at least 60 days in advance. If eRe incurs any costs or expenses in connection with terminating the Lease and re-entering the eRe Site, then Developer shall reimburse eRe for all such costs and expenses, together with interest at the rate of 15% per ann um. 14. Additional Project Contributions. If an Additional Project Contribution is necessary, then Developer shall give written notice of the need for an Additional Project Contribution, together with: (a) an itemized statement of the Operating Expenses and Debt Service to be paid with the Additional Project Contribution; and (b) the requested amount of the Additional CRC Contribution. CRC shall have 30 days from receipt of the notice to elect in writing whether it will make an Additional CRC Contribution. If CRC: (a) elects not to make the Additional CRC Contribution; or (b) fails to respond within the 30 day period (which failure shall be deemed to be an election not to make an Additional CRC Contribution); then Developer shall provide Additional Contribution Funding equal to the amount of the requested Additional CRC Contribution. 15. Mutual Indemnification. CRC shall indemnify and hold harmless Developer, its Affiliates, and their respective officers, directors, partners, members, employees, agents, representatives, successors, and assigns from and against any and all claims, damages, losses, and expenses (including, without limitation, attorneys' fees) arising from or connected with: (a) the performance of any work on the CRC Site by CRC or any party acting by, under, through, or on behalf of CRC; (b) the negligence or willful misconduct of CRC or any party acting by, under; through, or on behalf of CRC; or (c) the breach by CRC of any term or condition of this Agreement. Developer shall indemnify and hold harmless CRC, its Affiliates, and their respective officers, directors, partners, members, employees, agents, representatives, successors, and assigns from and against any and all claims, damages, losses, and expenses (including, without limitation, attorneys' fees) arising from or connected with: (a) the performance of any tests, inspections, examinations, studies, or investigations on the Project Site by Developer Dr any party acting by, under, through, or on behalf of Developer; (b) the performahce of any work on the Project Site by Developer or any party acting by, under, through, or on behalf of Developer; (c) the negligence or willful misconduct of Developer or any party acting by, under, through, or on behalf of Developer; or (d) the breach by Developer of any term or condition of this Agreement. 16. Assignment. Neither CRC nor Developer shall assign this Agreement, without the prior written approval of the other party; provided that: (a) CRC may assign this Agreement to another agency or instrumentality of the City, without the prior written approval of Developer; and (b) Developer may assign this Agreement without the prior written approval of CRC to any joint venture, limited partnership, or limited liability company that retains Developer as a general partner or managingmember, as the case may be, so that, if Developer so desires, Developer may enter into a financial joint venture with one or more institutional debt or equity partners for the construction of the Project. Notwithstanding any assignment permitted under this Section, CRG or Developer, as the case may, shall remain liable to perform all of the terms and conditions to be performed by it under this Agreement, and the approval by the other party of any assignment shall not release eRC or Developer, as the case may be, from such performance. 17. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by facsimile, with electroniG confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to CRG c/o Department of Community Services, City of Carmel, Indiana, One Civic Square, Carmel, India,na 46032, Attn: President, Facsimile: 317-571-2426, with a copy to Steve Engelking, City of Carmel, One Civic Square, Carmel, Indiana 46032, Facsimile: 317-844-3498 and a copy to Karl P. Haas, Esq., Wallack Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317-231-9900; and to Developer cIa AMLI Residential, 5875 Castle Creek Parkway North Drive, Suite 310, Indianapolis, Indiana 46250, Attention: James E. Thomas, Jr., Facsimile: 317-577-5633, with a copy to Paul G. Reis, Esq., The Reis Law Firm, LLC, 12358 Hancock Street, Carmel, Indiana 46032, Facsimile: 317- 1,\2002\3\PHOJEcr A(;HU~\IF2'TV~.F]1iAL.nDC 21 m.,,02 u u 848-4899. 18. Authority. The undersigned persons executing this Agreement on behalf of CRC and Developer represent and certify that: (a) they fully are empowered and duly are authorized by all necessary action of CRC and DevelQper, respectively, to execute and deliver this Agreement; (b) they have full capacity, power, and authority to enter into and carry out this Agreement; and (c) the execution, delivery, and performance of this Agreement duly have been authorized by CRC and Developer, respectively. 19. Force Majeure. Notwithstanding anything to the contrary set forth herein, whenever: (a) under this Agreement CRC or Developer is required to observe, perform, or satisfy any obligation, term, or condition of this Agreement either: (i) within a specified time period; or (ii) on or before a specified date; and (b) CRC or Developer, acting in good faith, is delayed in, or prevented from, observing, performing, or satisfying such obligation, term, or condition, as a result of Force Majeure; then such observation, performance, or satisfaction shall be excused for the period of days that such observation, performance, or satisfaction is delayed or prevented, and the deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same period. 20. Miscellaneous. Subject to Section 16, this Agreement shall inure to the benefit of, and shall be binding upon, CRC and Developer, and their respective successors and assigns. This Agreement constitutes the entire agreement between CRC and Developer with respect to the subject matter hereof, and may be modified only by a written agreement signed by both CRC and Developer. The invalidity, illegality. or unenforceability of anyone or more of the provisions of this Agreement shall not affect the validity, legality, or enforceability of the remaining provisions hereof. Whenever in this Agreement a singular word is used, it also shall include the plural wherever required by the context and vice versa. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana. All Exhibits referenced in this Agreement are attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, this Agreement is executed as of the day and year first written above. CRC: THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: Printed: Title: t;\20C'2\3\pl,OJ [Cf ,\ G REE~l Et'itT8- ]'INAL. 00 C 22 QJ,1Il02 u 1:\2002\9\P H:OJ FG rAG W Er~.\1 EN'[V:-I-r'INA L.DOC 23 u DEVELOPER: AMLI RESIDENTIAL PROPERTIES, L.P. By: AMLI RESIDENTIAL PROPERTIES TRUST, its sole general partner By: Printed: James E. Thomas, Jr. Title: Executive Vice President QT~1102 Exhibit A-1 Exhibit A-2 Exhibit. B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K w u INDEX TO EXHIBITS Depiction/Description of eRG Site Depiction/Description of Lumberyard Parcel CRC Site Work CRC Construction Plans CRC Construction Schedule Development Guidelines Elevation renderings and descriptions from the Development Proposal Project Site Plan Additional renderings and descriptions of the Buildings and Parking Facility Required Insurance Project Budget Mortgage Lender Provisions I :\~DO~\~\PH.OJElT AG REJ::.\'I.E.i\"'1'V8~FIX AL.DOC 24 ~~Jnn02 u u EXHIBIT K Lender Protection Provisions Aqreement shall mean the Project Agreement by and between CRC and Developer to which this Exhibit attached and incorporated by reference. Collateral shall mean all or any part of the Project Site, the improvements on the Project Site, and/or fixtures or other items of personal property on the Project Site that are subject to a Mortgage. Incurable Defaults shall mean Events of Default that cannot be cured by the payment of money or through the exercise of reasonable diligence. Morlqaqe shall mean: (a) a mortgage, pledge, or grant of security interest granted to a Mortgagee by Developer in all or any part of the Project Site, the improvements on the Project Site, and/or fixtures or other items of personal property on the Project Site; and/or (b) a collateral assignment of the Agreement and/or the interests of Developer in the Agreement. MortqaQee shall have the meaning ascribed to "Mortgage Lender" in the Agreement. MortQaqee Cure Period shall mean the period that commences upon the Event of Default and expires on the date that is 90 days after the later of: (a) the expiration of the Cure Period, or the applicable notice and/or cure period under Section 12 or this Exhibit; or (b) receipt of the Mortgagee Notice. MortQaqee Notice shall mean a copy of any notice or demand required or permitted to be made or delivered by eRC to Developer. MOrtQaqee Remedies shall mean: (a) obtaining possession of all or any part of the Collateral; (b) obtaining a receiver for all or any part of the Collateral; (c) foreclosing a Mortgage and effecting a foreclosure sale of the interests of Developer in the Agreement; (d) enforcing a Mortgage and effecting an assignment of the Agreement; or (e) otherwise acquiring all or any part of the Collateral and/or the interests of Developer in the Agreement. Permitted Termination shall mean a termination of the Agreement in accordance with the terms and conditions of this Exhibit, after the rights of all Mortgagees under Sections 1 and 2 of this Exhibithave expired. Replacement Aqreement shall mean a replacement of the Agreement entered into by and between eRC and the Replacement Developer upon: (a) the purported termination of the Agreement by CRG; and (b) request by the Replacement Developer in accordance with the terms and conditions of this Exhibit; which agreement shall be: (a) effective as of the date of the purported termination; and (b) upon the same terms and conditions in effect under the Agreement on the date of the purported termination. Replacement Developer shall mean a Mortgagee that requests the execution of a Replacement Agreement in accordance with the terms and conditions of this Exhibit, or its designee; 1. Mortgagee Rights. During all such times as there is a Mortgage outstanding, and until GRG has received written notices from each Mortgagee that its Mortgage has been satisfied or otherwise released, the following terms and conditions shall apply: (a) Developer or each Mortgagee shall deliver written notice to GRG when a Mortgage becomes effective, which notice shall: (i) identify the. Mortgagee with respect to such Mortgage; and (ii) set forth the notice address for the Mortgagee with respect to such Mortgage. I ,\ZOOZVJ\l'ROJECl' ,\(; REE:\I [","rv8.FI?, ,\ t..J)OC 25 9.J,UI02 u u (b) CRC shall deliver to each Mortgagee, at its notice address and in accordance with the terms and conditions of Section 17, a Mortgagee Notice. No notice or demand delivered by CRC to Developer shall be effective, unless and until a Mortgagee Notice is served upon all Mortgagees in accordance with the terms and conditions of this Section. (c) If there is an Event of Default with respect to the failure. to pay money, then: (i) each Mortgagee shall have the right to remedy the Event of Default or cause the Event of Default to be remedied, until the date that is 45 days after the later of: (A) the expiration of the Cure Period, or the applicable notice and/or cure period under Section 12 of the Agreement; or (8) receipt of the Mortgagee Notice; and (ii) CRC shall accept performance by any Mortgagee as performance by Developer. (d) If there is an Event of Default with respect to any obligation other than the failure to pay money, then: (i) each Mortgagee shall have the right to remedy the Event of Default or cause the Event of Default to be remedied until the expiration of the Mortgagee Cure Period; and (ii) CRC shall accept performance by any Mortgagee as performance by Developer. Notwithstanding any other term or condition of the Agreement or this Exhibit, eRC shall not exercise any of its rights and remedies under Section 12 of the Agreement with respect to such Event of Default, if: (i) within the first 60 days after receipt of the Mortgagee Notice, a Mortgagee notifies CRG of its intention to cure the Eventof Default; and (ii) within the first 75 days after receipt of the Mortgagee Notice, the Mortgagee: (A) commences a cure of the Event of Default and diligently pursues such cure to completion; or (B) commences the exercise or pursuit of one or more of the Mortgagee Remedies, and: (1) after commencement of the exercise or pursuit of the selected Mortgagee Remedies, diligently exercises or pursues such Mortgagee Remedies; provided that, if the Mortgagee has commenced the exercise or pursuit of the selected Mortgagee Remedies within 75 days after receipt of the Mortgagee Notice, and continues such exercise or pursuit, then, for a period of six months after the date on which the Mortgagee commenced the exercise or pursuit of the selected Mortgagee Remedies, which periOd shall be extended as reasonably required by the Mortgage, such exercise or pursuit by the Mortgagee shall be deemed to be diligent; and (2) after obtaining or effecting the selected Mortgagee Remedies, commences a cure of the Event of Default and diligently pursues such cure to completion. The Mortgagee Cure Period shall be extended for the duration of any period when CRC is prohibited under this Subsection from exercising its rights and remedies with respect to an Event of Default. 2. Replacement Agreement. Notwithstanding anything to the contrary set forth in the Agreement, if: (a) CRC purports to terminate the Agreement for any reason; and (b) within 60 days after the date of such purported termination, a Mortgagee requests thatCRC enter into a replacement agreement with respect to the Project Site; then CRC shall enter into the Replacement Agreement with the Replacement Developer. Upon the execution of the Replacement Agreement, CRC shall: (a) assign to the Replacement Developer all right, title, and interest of CRC in and to leases and other agreements in effect with respect to the Project Site; and (b) remit to the Replacement Developer all rent and other amounts, if any, paid to CRC under or pursuant to such leases and other agreements after the date of the purported termination; and the Replacement Developer shall assume all such leases and other agreements without recourse to CRC. Upon the execution of the Replacement Agreement, the Replacement Developer shall payor cause to be paid to CRC all amounts owing from Developer to CRC under the Agreement, if any. Promptly after the execution of the Replacement Agreement, the Replacement Developer shall: (a) commence a cure of any other uncured Events of Default that can be cured: (i) by the payment of money; or (ii) by the Replacement Developer through the exercise of reasonable diligence; and (b) diligently pursue such cure to completion; provided that 1,\200~^3\Pllo.l[C r AGREE..\lEi'Tv8.FINAL. DOC 26 9J<ln0:2 u (~ ~ u the Replacement Developer shall not be: (a) required to cure any Incurable Defaults; (b) liable for or, with respect to, any Incurable Defaults; or (c) liable for any damages, losses, or expenses (including, without limitation, attorneys' fees), incurred by CRC in connection with any uncured Events of Default that existed before, or at the time of, the purported termination. If a Replacement Agreement is executed, then, at the election of the Replacement Developer: (a) the purported termination shall be deemed to be void and unenforceable, and shall have no force or effect as of the moment CRC first acted to effect the purported termination; and (b) the Replacement Agreement shall be deemed to be a continuation and supplement of the Agreement for all purposes. 3. Amendments. During all such times as there is a Mortgage outstanding, no amendment, modification, supplement, surrender, cancellation, or termination of the Agreement shall be effective, unless all Mortgagees consent in writing to the amendment, modification, supplement, surrender, cancellation, or termination of the Agreement; provided that a Permitted Termination shall be effective. Any attempted amendment, modification, supplement, surrender, cancellation, or termination of the Agreement without the consent of all Mortgagees, other than a Permitted Termination, shall be void and unenforceable, and shall have no force or effect. If, in connection with any attempts by Developer to obtain mortgage financing from a prospective mortgagee, such prospective mortgagee requires reasonable amendments, modifications, or supplements of or to the Agreement as a condition to closing such financing, then Developer and CRG shall execute an agreement amending, modifying, or supplementing the Agreement as required by the mortgagee; provided that such amendments, modifications, or supplements shall not: (a) adversely affect CRC, or the rights of CRC under the Agreement, in any material respect; or (b) reduce any obligations of Developer under the Agreement in any material respect. 4. Default Cures. No term or condition of the Agreement or this Exhibit shall be deemed to: (a) require any Mortgagee to satisfy any obligation of Developer under the Agreement, or cure any breach by Developer of its obligations under the Agreement; or (b) otherwise make any Mortgagee liable for any such breach; except as expressly provided in Section 2 of this Exhibit after a Mortgagee becomes the Replacement Developer; provided that, if there are multiple Mortgages outstanding, then only the Mortgagee that becomes the Replacement Developer may be: (a) required to satisfy any obligation of Developer under the Agreement, or cure any breach by Developer of its obligations under the Agreement; or (b) otherwise liable for any such breach; and then only to the extent of the express provisions set forth in Section 2 of this Exhibit. I ~\i:OO~\:~\PH.OJEC'l' AL: HE.E.7\.1 E:N'l'VX-FIJo,;ALDOC 27 9.1 iUl02