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Project Agreement - 2004 PROJECT AGREEMENT This Project Agreement(the"Agreement"), by and between The City of Carmel 19development t Commission ("CRC") and Pedcor Office, LLC (the "Developer"), executed this f clay of «✓ , 2004, WITNESSES: Recitals WHEREAS, CRC owns the Project Site, and intends for the Project Site to be incorporated into the City Center as the real estate upon which the Project will be constructed; WHEREAS, CRC intends to convey the Project Site to a developer that will construct the Project on the Project Site; WHEREAS, CRC is required to comply with the Statute and conduct public offerings prior to conveying the Project Site; WHEREAS, in compliance with the Statute: (a) CRC prepared the Notice of Sale; and (b) published the Notice of Sale twice; WHEREAS, CRC did not receive any satisfactory bids with respect to the conveyance and redevelopment of the Phase I Site; WHEREAS, because CRC did not receive any satisfactory bids with respect to the conveyance and redevelopment of the Phase I Site, CRC has the right to enter into private negotiations for the conveyance and redevelopment of the Phase I Site; provided that, CRC may not convey the Phase I Site for an amount less than that set forth in the applicable Notice of Sale for a period of at least 30 days; WHEREAS, CRC, in compliance with the Statute, has entered into private negotiations with Developer with respect to the conveyance and redevelopment of the Phase I Site, and the 30 day period set forth in the Statute has elapsed; WHEREAS, CRC did receive satisfactory bids with respect to the conveyance and redevelopment of the Phase 11 Site and the Phase III Site; WHEREAS, the'satisfactory bids with respect to the conveyance and redevelopment of the Phase II Site and the Phase III Site came from Developer; WHEREAS, accordingly, CRC accepted the bids by Developer with respect to the conveyance and redevelopment of the Phase II Site and the Phase III Site; WHEREAS, Developer has submitted the Development Proposal to CRC; WHEREAS, the Development Proposal is consistent with: (a) the private negotiations between CRC and Developer with respect to the conveyance and redevelopment of the Phase I Site; and (b)the bids made by Developer and accepted by CRC with respect to the conveyance and redevelopment of the Phase II Site and the Phase III Site; WHEREAS, CRC has determined that the conveyance of the Project Site to Developer, and the development of the Project on the Project Site by Developer, will further the creation of the City Center and best serve the interest of the community, from the standpoint of both human and economic welfare; WHEREAS, Developer desires to: (a) acquire the Project Site from CRC; and (b) construct the Project upon the Project Site, as generally shown on the Site Plan; Agreement 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. Amenities shall mean the Amenities On-Site Improvements and the Amenities Off-Site Improvements. Amenities Construction Contract shall mean the contract pursuant to which the Amenities Off-Site Improvements are being constructed. Amenities Off-Site Base Costs shall mean the amount that CRC would have spent to design and construct the Amenities Off-Site Improvements, to be determined by CRC and Developer based upon contractor estimates. Amenities Off-Site Construction Costs shall mean the actual out-of-pocket costs incurred by Developer to construct the Amenities Off-Site Improvements. Amenities Off-Site Design Costs shall mean the reasonable and actual out-of-pocket costs incurred by Developer to design the Amenities Off-Site Improvements, including, without limitation, costs to pay professional advisors or consultants who are employees of Developer to: (a)design the Amenities Off- Site Improvements; and/or(b) render services that otherwise would be provided by outside professional advisors or consultants. Amenities Off-Site Improvements shall mean the portion of the ice rink, Spanish steps, and pavilion building (or public amenities substituted by CRC and Developer) and related improvements described on Exhibit M. Amenities Off-Site Savings shall mean the excess of: (a) the Amenities Off-Site Base Costs; over(b) the sum of: (i)the Amenities Off-Site Design Costs; plus (ii)the Amenities Off-Site Construction Costs. Amenities On-Site Base Costs shall mean the amount that CRC would have spent to design and construct the Amenities On-Site Improvements, to be determined by CRC and Developer based upon contractor estimates. Amenities On-Site Construction Costs shall mean the additional actual out-of-pocket costs incurred by Developer to construct the Amenities On-Site Improvements, but only to the extent: (a) not included in the Parking Garages Construction Costs; and (b)that such costs cause an increase in the actual out-of- pocket costs that Developer would have incurred to construct the Phase I Project without the Amenities On-Site Improvements. Amenities On-Site Design Costs shall mean the additional, reasonable, and actual out-of-pocket costs incurred by Developer to design the Amenities On-Site Improvements, including, without limitation, costs to pay professional advisors or consultants who are employees of Developer to: (a) design the Amenities On-Site Improvements; and/or(b) render services that otherwise would be provided by outside professional advisors or consultants, but only to the extent that such costs cause an increase in the actual out-of-pocket costs that Developer would have incurred to design the Phase I Project without the Amenities On-Site Improvements. Amenities On-Site Improvements shall mean the portion of the ice rink, Spanish steps, and pavilion building (or public amenities substituted by CRC and Developer)and related improvements described on Exhibit L. Amenities On-Site Savings shall mean the excess of: (a)the Amenities On-Site Base Costs; over(b) the sum of: (i)the Amenities On-Site Design Costs; plus (ii)the Amenities On-Site Construction Costs. Amenities Rebate shall mean a rebate of the Purchase Price in the amount of the Total Available Savings; provided that the amount of the Amenities Rebate shall not exceed the Total Costs Shortfall, if any. Amenities Site shall mean that portion of the City Center Site depicted and/or described on Exhibit A-1. Apartments Stacking Declaration shall mean a declaration of covenants and easements pursuant to which: (a) CRC or the Designee Agency shall grant to Developer easements of support for the benefit of the Retail and Apartments; (C) CRC is obligated to maintain the Underground Facilities in such a manner that they: (i) provide support for the Retail and Apartments; and (ii) do not adversely impact the support of the Retail and Apartments; and (c) Developer is obligated to maintain the Retail and Apartments in such a manner that they do not adversely impact the Underground Facilities. Architectural Review Committee shall have the meaning set forth in the City Center Declaration. Bond Proceeds shall mean the proceeds from the TIF Bonds that actually are available to pay Parking Garages Construction Costs. Budget shall mean a budget setting forth, on a line-item basis, the costs to construct the Parking Garages and the Amenities. Change Order shall mean a change order executed by CRC and Developer finalizing the inclusion into the Final Developer Plans of a change proposed in a Change Order Request by one party that is approved by the other party; provided that, in the case of a Permitted Change, such change order shall be effective if executed only by party seeking the Permitted Change. Change Order Request shall mean a written request for a change to the Final Developer Plans. City shall mean the City of Carmel, Indiana. City Center shall mean a redevelopment project on the City Center Site that is intended to provide a balanced mixture of residential facilities, retail facilities, dining options, a corporate office campus, and public amenities. City Center Declaration shall mean that certain Declaration of Covenants and Easements with respect to the City Center Site recorded as Instrument No. 2000000058577 in the Office of the Hamilton County Recorder, as modified by that certain: (a) Confirmation (Kestner Site is part of the"Retail Parcel") recorded in the Office of the Hamilton County Recorder as Instrument Number 200200025755; (b) Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number 200100061268; (c) Second Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number 00300059243; (d)Third Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number ; and (e) Fourth Amendment to Declaration of Covenants and Easements recorded in the Office of the Hamilton County Recorder as Instrument Number City Center Site shall mean that certain real estate depicted on Exhibit A. Closing shall mean the Phase I Closing, the Phase II Closing, or the Phase III Closing, as the case may be. Closing Date shall mean the date of the Phase I Closing, the Phase II Closing, or the Phase III Closing, as the case may be. Construction Commencement shall mean that the footers and the foundations with respect to the Phase I Buildings, the Phase II Office Buildings, or the Phase III Office Buildings, as the case maybe, have been completed. Construction Coordination Fee shall mean a fee of$750,000.00 payable by CRC to Developer as provided in Subsection 13(m)to be paid in exchange for Developer: (a) coordinating construction of all improvements in or to the Design Control Area, as provided in this Agreement; (b) undertaking responsibility for'the construction of the entire Project, except for the CRC On-Site Improvements, as provided in this Agreement. Construction Drawings shall mean construction drawings with respect to the construction of the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, in accordance with the Design Development Documents, which drawings shall be: (a) prepared in conjunction with the applicable Engineering Documents; and (b) consistent with the Design Development Documents and the Construction Schedule approved by CRC. Construction Schedule shall mean a detailed schedule for construction of: (a)the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, in accordance with the Final Developer Plans; and (b)the CRC Site Work, the CRC On-Site Improvements, and/or the CRC Off-Site Improvements (except for those portions thereof covered by the schedule set forth on Exhibit D-1); which schedule: (a)for the Phase I Project shall reflect that: (i) Construction Commencement shall have occurred with respect to the Phase I Project on or before the date that is 12 months after the Closing Date for the Phase I Closing; and (ii) Developer shall complete construction of the Phase I Project on or before the date set forth on Exhibit E; (b)for the Phase II Project shall reflect that: (i) Construction Commencement shall have occurred with respect to the Phase ll Project on or before the date set that is six months after the Closing Date for the Phase II Closing; and (ii) Developer shall complete construction of the Phase II Project on or before the date set forth on Exhibit E; and (c)for the Phase III Project shall reflect that: (i) Construction Commencement shall have occurred with respect to the Phase III Project on or before the date that is six months after the Closing Date for the Phase III Closing; and (ii) Developer shall complete construction of the Phase III Project on or before the date set forth on Exhibit E. Construction Trade shall mean any trade or other discrete aspect of construction of the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be. CRC Construction Plans shall mean the plans and specifications for the CRC Site Work and the CRC Off-Site Improvements, some of which may be listed on Exhibit D-2, and the remainder of which shall be listed on Exhibit D-2 as they are completed; provided that, as such plans and specifications are changed and updated, Exhibit D-2 shall be revised accordingly. CRC Off-Site Improvements shall mean the improvements described in Exhibit D that will not be constructed within the Design Control Area, such as construction of an extension of Monon Green to 3rd Avenue S.W. CRC On-Site Improvements shall mean the improvements described in Exhibit D that will be constructed within the Design Control Area, such as construction of an extension of Veterans Way to City Center Drive, sidewalks, and streetscape. CRC Site Work shall mean the site work described in Exhibit D, such as demolition of the Goodyear Building and performance of the Goodyear Remediation. CSO shall mean CSO Architects and Interiors. 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, if the failure 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: (a)commences to remedy the failure within the 30 day period; and (b) diligently pursues such remedy to completion. Deferred Agreements shall mean the Rebate and Replacement Bonds Agreement, the Garage Access Declaration, the Facilities Management Agreement, the Apartments Stacking Declaration, the Hotel Stacking Declaration, the Public Areas Management Agreement, and the Legal Description Agreement. Design Coordination Fee shall mean a fee of$250,000.00 payable by CRC to Developer as provided in Subsection 13(m). Designee Agency shall mean an agency of the City designated by CRC. Design Control Area shall mean the Project Site and the Amenities Site. Design Development Documents shall mean detailed design development documents that describe and establish systems, equipment, finishes, and interior elements (as such elements become applicable) for the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, which documents shall be: (a) prepared in conjunction with the applicable Engineering Documents; and (b) consistent with the Site Plan, the Development Guidelines, the Development Proposal, and the Laws. Development Guidelines shall mean those guidelines for development of the Project Site set forth on Exhibit F. Development Proposal shall mean that certain proposal, and all related materials, submitted by Developer to CRC, including, without limitation, the elevation renderings and descriptions attached hereto as Exhibit G. Due Diligence Period shall mean the period commencing on the Execution Date and expiring on December 31, 2004. Engineering Contracts shall mean contracts entered into with the Engineers, which contracts shall provide that: (a)the Engineers shall provide their services in coordination with the Project Architect; (b) Developer has overall responsibility for the design of the Project; (c)the Engineers must maintain adequate errors and omissions insurance; (d)the Engineers shall provide customary bidding and construction services; and (e) all invoices submitted by the Engineers must be approved by Developer prior to payment. Engineering Documents shall mean the civil and structural engineering plans and related documents with respect to the Phase I Project. Engineers shall mean the structural engineer and the civil engineer, each,as jointly selected by CRC and Developer. Environmental Assessment shall mean: (a) the existing Phase One Environmental Assessment of the Design Control Area performed by Earth Exploration, Inc.; and (b)the reports with respect to any tests, inspections, examinations, studies, or investigations of the Design Control Area supplementary to such Phase One Environmental Assessment. Event of Default shall have the meaning set forth in Subsection 18(a). Execution Date shall mean the date on which this Agreement is executed. Facilities Management Agreement shall mean a management agreement that addresses the following with respect to the Underground Facilities: (a) use and operation; (b) routine maintenance; (c) insurance and utilities; (d) reservation of parking spaces; (e) if and when fees will be charged to members of the public for parking in the Parking Garages (including a validation program); and (f) sharing of costs proportionally among owners of all buildings and facilities that use the Parking Garages. Final Documents and Drawings shall mean, with respect to the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, final schematic design drawings, final engineering documents, final design development documents, the final construction schedule, final construction drawings, and the final budget, as each is: (a)finalized and approved or reviewed by CRC; and/or (b) modified by Change Orders or, in the case of the budget, updated; pursuant to the Plan Refinement Process. Final Developer Plans shall mean, with respect to the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, the aggregated Final Documents and Drawings. Final Inspection shall mean an inspection of the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, after substantial completion thereof. Garage Access Declaration shall mean a Declaration of Covenants and Easements pursuant to which CRC and Developer have rights of access through the Parking Garages. General Contractor shall mean Signature Construction, Inc., as the general contractor for the Amenities Off-Site Improvements. Goodyear Building shall mean the vacant building depicted on Exhibit H-2. Goodyear Remediation shall mean any remediation of contamination existing as a result of the use and operation of a tire store and/or automobile repair facility in the Goodyear Building, to the extent that such remediation is required by the Laws. Goodyear Site shall mean the real estate on which the Goodyear Building is located, as depicted and/or described on Exhibit H-2. Hotel and Retail shall mean that portion of the Phase I Buildings consisting of the hotel and the retail adjacent thereto, as generally depicted on Exhibit I-1. Hotel Stacking Declaration shall mean a declaration of covenants and easements pursuant to which: (a) CRC or the Designee Agency shall grant to Developer easements of support for the benefit of the Hotel and Retail; (b) CRC is obligated to maintain the Underground Facilities in such a manner that they: (i) provide support for the Hotel and Retail; and (ii) do not adversely impact the support of the Hotel and Retail; and (c) Developer is obligated to maintain the Hotel and Retail in such a manner that they do not adversely impact the Underground Facilities. Increment shall mean the incremental revenue generated from all ad valorem real property taxes that are levied, imposed, or charged on, against, for, or with respect to the Project Site by the applicable taxing authorities. Inspecting Architect shall mean CSO. Inspection Period shall mean the period specified in an Inspection Request within which CRC and/or the Inspecting Architect shall: (a) conduct a Sample Work Inspection, as identified in the Inspection Request; and (b) deliver to Developer a Non-Compliance Notice, if applicable; provided that such period shall be at least five business days after CRC and the Inspecting Architect receive the Inspection Request. Inspection Request shall mean a written request from Developer for a Sample Work Inspection, which request shall identify the Sample Work Installation to be inspected by CRC and/or the Inspecting Architect. Interest Rebate shall mean a rebate of$1,000,000 of the Purchase Price for the Phase I Site to compensate Developer for the difference between the effective (after-tax) interest rate on the original taxable TIF Bonds and the effective(after-tax) interest rate had the original TIF Bonds been tax-exempt. IRPTL shall mean the Indiana Responsible Property Transfer Law, as amended. Latent Defect shall mean those material defects in the construction of the Project that: (a) are not discovered; and (b) reasonably are not discoverable; by CRC or the Inspecting Architect during an inspection. Laws shall mean all applicable laws, statutes, and/or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and/or decrees. Legal Description Agreement shall mean an agreement setting out the final legal descriptions of the Parking Garages, the Hotel and Retail, and the Retail and Apartments. Loading Facilities shall mean that portion of the Phase I Project comprised of underground loading areas, loading docks, and related facilities, as more particularly described and/or depicted on Exhibit H-1. Material Defect shall mean any item or component of the Project(including, without limitation, any item or component of a Sample Work Installation) that: (a) contains a material defect in workmanship or materials; (b) deviates materially from the Final Developer Plans; or(c) has not been performed materially in accordance with the terms and conditions of this Agreement; provided that, with respect to a Monthly Inspection, a Permitted Inspection, or the Final Inspection, no item or component constructed or installed in accordance with: (i) a Sample Work Installation that has been accepted, or deemed to be accepted, by CRC; and (ii)the Laws; shall constitute a Material Defect. Monthly Inspection shall mean an inspection conducted by the Inspecting Architect each month during construction of the Project. Non-Compliance Notice shall mean a written notice from CRC that identifies Material Defects discovered by CRC or the Inspecting Architect during a Sample Work Inspection, a Monthly Inspection, a Final Inspection, or a Permitted Inspection. Notice of Sale shall mean that certain: (a) Notice of Sale of Real Estate For Private Redevelopment of Parcel No. 5 In the Carmel City Center; and (b) Notice of Sale of Real Estate For Private Redevelopment of Parcels No. 5A and 5B In the Carmel City Center. Office Building shall mean any of the Phase II Office Buildings or the Phase III Office Buildings, as applicable. Parking Garages shall mean that portion of the Phase I Project comprised of: (a) underground parking facilities; and (b)the above ground structured parking facility stacked above a portion of the underground parking facility on the Phase I Site, as generally depicted on Exhibit H-1, which under and above ground parking facilities support the Hotel and Retail. Parking Garages Construction Costs shall mean the actual out-of-pocket costs incurred by Developer to construct the Parking Garages in accordance with the terms and conditions of Section 15. Permitted Change shall mean any change to the final Construction Drawings that: (a) does not deviate materially from the: (i)Schematic Design Drawings or the Design Development Documents approved by CRC; or(ii)completed Engineering Documents; (b) is in conformity with each of the Site Plan, the Development Guidelines, the Development Proposal, and the Laws; (c) does not result in the Final Developer Plans containing structurally flawed elements; and (d) does not make it unlikely, impracticable, or impossible for: (i) Developer to complete the Project, or any component thereof, by the date set forth in the approved Construction Schedule; or(ii) CRC to complete the CRC Site Work, the CRC On-Site Improvements, the CRC Off-Site Improvements, or any portion thereof, by the date set forth on Exhibit D- 1 or in the approved Construction Schedule, as applicable. Permitted Exceptions shall mean the City Center Declaration and any other exceptions to title reflected in the Title Commitment: (a)that are not Title Defects; or(b) to which: (i) Developer does not object within 15 days after receipt by Developer of both the Title Commitment and the Survey(except the lien of any mortgage or other security instruments to be released at or before the Closing); or(ii) Developer agrees in writing to accept or is deemed to have waived pursuant to the terms and conditions of this Agreement, regardless of whether Developer initially objected to such exceptions. Permitted Inspection shall mean an optional inspection by the Inspecting Architect and/or any CRC member of any item or component of the Project when reasonably deemed to be necessary or appropriate by CRC and/or the Inspecting Architect. Phase I Closing shall mean the closing with respect to the conveyance of the Phase I Site to Developer. Phase I Buildings shall mean: (a)two coordinated buildings of at least four floors each consisting of: (i) an aggregate of approximately 100,000 square feet of retail space on the first floor; and (ii)a total of at least 200 luxury apartments on floors two and above; and (b) a building consisting of: (i) a parking garage on at least the first three floors; and (ii) a hotel with at least 75 rooms on the floors above the parking garage. Each of the foregoing buildings shall be: (a) above a coordinated system of underground parking garages; and (b)of a Georgian, Federal, or similar style that is compatible with the remainder of the City Center. Phase I Project shall mean the Phase I Buildings, the Amenities, the CRC On-Site Improvements, and related improvements (including, without limitation: (a) adequate irrigation systems for any landscaping and greenspace; and (b) bicycle racks)to be constructed: (a)within the Design Control Area; and (b) in accordance with the Final Developer Plans. Phase I Site shall mean that portion of the Project Site that is located at the southwest corner of Rangeline Road and City Center Drive, as depicted on Exhibit H. Phase II Agreement shall mean an agreement consistent with the terms and conditions of this Agreement that further specifies the business arrangement reached by and between CRC and Developer with respect to the acquisition of the Phase II Site and the construction of the Phase II Project. Phase II Closing shall mean the closing with respect to the conveyance of the Phase II Site to Developer. Phase II Office Buildings shall mean two first-class single and/or multi tenant office, retail, and/or residential buildings, which buildings shall: (a) have at least two stories; and (b) consist of an aggregate of at least 15,000 square feet. Each of the foregoing buildings shall be: (a) above a coordinated system of underground parking garages; and (b) of a Georgian, Federal, or similar style that is compatible with the remainder of the City Center. Phase II Project shall mean the Phase II Office Buildings and related improvements (including, without limitation: (a) adequate irrigation systems for any landscaping and greenspace; and (b) bicycle racks)to be constructed on the Phase II Site in accordance with the Final Developer Plans. Phase ll Site shall mean that portion of the Project Site depicted on Exhibit H. Phase Ill Agreement shall mean an agreement consistent with the terms and conditions of this Agreement that further specifies the business arrangement reached by and between CRC and Developer with respect to the acquisition of the Phase III Site and the construction of the Phase III Project. Phase Ill Closing shall mean the closing with respect to the conveyance of the Phase III Site to Developer. Phase Ill Office Buildings shall mean two first-class single and/or multi tenant office, retail, and/or residential buildings, which buildings shall: (a) have at least two stories; and (b)consist of an aggregate of at least 15,000 square feet. Each of the foregoing buildings shall be: (a) above a coordinated system of underground parking garages; and (b) of a Georgian, Federal, or similar style that is compatible with the remainder of the City Center. Phase Ill Project shall mean the Phase III Office Buildings and related improvements (including, without limitation: (a) adequate irrigation systems for any landscaping and greenspace; and (b) bicycle racks)to be constructed on the Phase III Site in accordance with the Final Developer Plans. Phase Ill Site shall mean that portion of the Project Site depicted on Exhibit H. Plan Refinement Process shall mean the process set forth in Section 13 for refining the Final Developer Plans. Plan Review Panel shall mean a plan review panel comprised of Les Olds, together with two designated members of CRC; provided that, if Les Olds is unavailable or unable to serve on such panel, then a qualified replacement shall serve in his place. Project shall mean the Phase I Project, the Phase II Project, and the Phase III Project. Project Architect shall mean Jim Stutzman, Vice President of Developer. Project Site shall mean that certain real estate depicted and/or described on Exhibit H. The Project Site is comprised of the Phase I Site, the Phase II Site, and the Phase III Site. Public Areas shall mean the portion of the Project consisting of those streets, sidewalks, fountains, utilities, and other area described and/or depicted on Exhibit C. Public Areas Management Agreement shall mean a management agreement pursuant to which Developer: (a) shall maintain the Public Areas and the public restrooms located in the Phase I Buildings in a first-class manner consistent with a first-class project; (b) may recover from CRC or the Designee Agency on a quarterly basis all reasonable costs actually incurred in connection with such maintenance, regardless of whether such costs incurred by Developer to maintain the Public Areas in a first-class manner consistent with a first-class project exceed the costs that CRC or the Designee Agency would have incurred to maintain the Public Areas or the public restrooms to the standard it deemed to be acceptable; and (c) shall have certain rights with respect to controlling traffic flow on the Project Site, including, without limitation, the right to close the roads thereon to vehicular traffic at certain times and on certain dates for the purpose of creating a pedestrian plaza. Purchase Price shall mean: (a)with respect to the Phase I Site, $2,000,000.00; (b)with respect to the Phase II Site, $750,000.00; and (c)with respect to the Phase III Site, $750,000.00. Qualified Developer shall mean a real estate developer that meets the criteria set forth on Exhibit I-1. Rebate and Replacement Bonds Agreement shall mean an agreement consistent with the terms and conditions of Section 4. Replacement Bonds shall mean tax-exempt TIF Bonds that are issued to refund and replace a portion of the original taxable TIF Bonds in an amount that is not less than the amount of the original taxable TIF bonds multiplied by a fraction: (a)the numerator of which is: (i)the total number of parking spaces in the Parking Garages; less (ii) the number of the Retained Spaces; and (b) the denominator of which is the total number of parking spaces in the Parking Garages). Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for construction and use of the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be (including, without limitation, completion of the process, and compliance with the requirements, set forth in the City of Carmel C-1 Zoning Ordinance). Required Utilities shall mean gas, electricity, telephone, water, storm and sanitary sewer, and/or other utility services in adjoining public rights-of-way or properly granted and recorded utility easements available to serve the Project Site at adequate pressures, and in sufficient quantities and volumes, for the Required Use. Retained Spaces shall mean the number of parking spaces in the Parking Garages that Developer elects to retain for the exclusive use of the tenants of the portion of the Phase I Project consisting of apartments Required Use shall mean the construction and use of the Project in accordance with the terms and conditions of this Agreement. Retail and Apartments shall mean that portion of the Phase I Buildings comprised of the first floor retail space and the luxury apartments on floors two and above, as generally depicted on Exhibit I-1. Right of Entry shall mean a right of entry with respect to the Design Control Area that grants to Developer the right to enter upon the Design Control Area to perform such tests, inspections, examinations, studies, and investigations as it reasonably deems to be necessary or appropriate. Sample Work Inspection shall mean an inspection of a Sample Work Installation. • Sample Work Installation shall mean a representative sample or typical example of a certain specified portion of the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be. Schematic Design Drawings shall mean detailed schematic design drawings for the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, which drawings shall be consistent with the Site Plan, the Development Guidelines, the Development Proposal, and the Laws. Site shall mean the Phase I Site, the Phase II Site, or the Phase III Site, as the case may be. Site Plan shall mean the site plan attached hereto as Exhibit I. Statute shall mean IND. CODE §36-7-14-22. Survey shall mean an ALTA survey of the Design Control Area prepared by a surveyor reasonably satisfactory to Developer, which survey shall be certified to Developer and its lender. Takeout Amount shall mean the proceeds from the Replacement Bonds that actually are applied to refund and replace the original taxable TIF Bonds. TIF shall mean tax increment financing. TIF Bonds shall mean the original taxable TIF bonds that are issued to fund the Parking Garages Construction Costs. Title Commitment shall mean a commitment for a current form ALTA owner's policy of title insurance with respect to the Project Site that: (a) is issued by the Title Insurer; (b)commits to insure marketable, indefeasible fee simple title to the Project Site in the name of Developer; and (c) commits to insure the easements and rights of Developer under the City Center Declaration. Title Defects shall mean conditions or defects disclosed in the Title Commitment, or by the Survey (including, without limitation, overlaps, gaps, gores, wetlands, flood areas, or encroachments), that, in Developer's good faith judgment, materially and adversely interfere with, or have a material and adverse effect on, the development of the Project within the Design Control Area or the use of the Design Control Area for the Required Use; provided that, neither: (a) the lien of any mortgage or other security instruments to be released at or before the Closing; nor(b)conditions or defects accepted, or deemed to be accepted, by Developer pursuant to the terms and conditions of Section 7; shall be Title Defects. Title Insurer shall mean Hamilton Title Security, LLC. Total Applicable Costs shall mean, when the Phase I Project is complete, the sum of: (a)the Parking Garages Construction Costs; (b)the Amenities On-Site Design Costs; and (c)the Amenities On-Site Construction Costs. Total Available Savings shall mean the sum of: (a)the Amenities On-Site Savings; plus (b)the Amenities Off-Site Savings. Total Costs Shortfall shall mean: (a) if the Replacement Bonds are not issued, the excess of: (i)the Total Applicable Costs; over(ii)the Bond Proceeds; and (b) if the Replacement Bonds are issued, the excess of: (i)the Total Applicable Costs; over(ii)the Takeout Amount. Underground Facilities shall mean the Parking Garages and the Loading Facilities. 2. Obligations of Parties. (a) General Obligations. CRC shall: (i)convey to Developer fee simple title to each of the Phase I Site, the Phase II Site, and the Phase III Site, in each case: (A) in the condition that such Sites are in on the Execution Date, except to the extent that: (1) CRC has performed the CRC Site Work or the CRC On-Site Improvements; and (2) such condition has been changed by Developer or any of its affiliates, agents, contractors, or employees; and (B)for the applicable Purchase Price; and (ii)complete(or cause completion of)the CRC Site Work,the CRC On-Site Improvements, and the CRC Off- Site Improvements; in each case subject to the terms and conditions of this Agreement. Developer shall: (i) purchase the Phase I Site, the Phase II Site, and the Phase III Site, in each case for the applicable Purchase Price; and (ii) construct the Project; in each case subject to the terms and conditions of this Agreement. CRC shall assist Developer in its efforts to obtain the Required Permits; provided that CRC shall not be required to incur any costs or expenses in connection with such assistance. (b) Books and Records. Developer shall maintain a permanent, accurate, and complete set of books and records of the Amenities Off-Site Construction Costs, the Amenities On-Site Construction Costs, the Amenities Off-Site Design Costs, and the Amenities On-Site Design Costs. CRC and its agents may inspect such books and records upon delivery of reasonable notice to Developer. Upon receipt of written request by CRC, Developer shall provide to CRC a full accounting of the Amenities Off-Site Construction Costs, the Amenities On-Site Construction Costs, the Amenities Off-Site Design Costs, and the Amenities On-Site Design Costs, which accounting shall include reasonable detail. 3. Closings. • (a) Closings. Subject to the terms and conditions of this Agreement: (i)the Phase I Closing shall occur on (or before, at Developer's election) December 31, 2004; (ii)the Phase II Closing shall occur on (or before, at Developer's election) December 31, 2009; and (iii)the Phase III Closing shall occur on (or before, at Developer's election) December 31, 2011; provided that, in each case: (i) Developer shall: (A) select the Closing Date; and (B) provide CRC written notice of such selection at least five business days in advance of the selected Closing Date; and (ii) the Closing Date selected by Developer shall be subject to the reasonable approval of CRC. Each of the Phase I Closing, the Phase II Closing, and the Phase Ill Closing shall take place at the office of the Title Insurer, or at such other place as CRC and Developer mutually agree. At each of the Phase I Closing, the Phase II Closing, and the Phase III Closing, Developer shall pay the applicable Purchase Price to CRC by wire transfer or other immediately available funds, reduced by any reductions, credits, or prorations for which this Agreement provides. (b) Deferment Option. Notwithstanding anything to the contrary set forth herein, because Goodyear Remediation will be required, Developer,may elect to defer taking title to the Goodyear Site until the Goodyear Remediation has been completed. If Developer elects such a deferment, then, at the Phase I Closing Developer shall: (i) take title to all of the Phase I Site except the Goodyear Site; and (ii) retain $200,000.00 of the Purchase Price applicable to the Phase I Site as security for: (A) completion by CRC of the Goodyear Remediation; and (B) the conveyance by CRC of the Goodyear Site to Developer upon completion of the Goodyear Remediation. Promptly upon completion of the Goodyear Remediation: (i) CRC shall convey the Goodyear Site to Developer pursuant to closing documents consistent with the requirements of Section 5; and (ii) Developer shall pay to CRC the remaining $200,000.00 of the Purchase Price applicable to the Phase I Site. If: (i) Developer elects to defer the acquisition of the Goodyear Site pursuant to this Subsection; and (ii) a termination of this Agreement by Developer pursuant to Section 9 becomes effective; then, notwithstanding the terms and conditions of Section 9, at the closing of the reconveyance of the Phase I Site to CRC, CRC shall pay to Developer$1,800,000.00. (c) Amenities Rebate. It was originally contemplated that CRC, at its cost,was to construct the Amenities. Subsequent to the acceptance of the Development Proposal, CRC and Developer determined that: (i)the Hotel and Retail and the Parking Garages shall provide support services (including back of the house operations)for, and serve as a backdrop for, the Amenities; (ii) the Phase I Buildings shall include public restrooms adequate in size to serve members of the public utilizing the Amenities; (iii)construction of the Amenities will require careful coordination and integration with the construction of the remainder of the Phase I Project; and (iv)for purposes of carrying out the construction of the Amenities and the remainder of the Phase I Project in a carefully coordinated and integrated manner, it is in the best interests of both parties to have a single party assume responsibility for construction of the Phase I Project. Consequently: (i) it is impractical and inefficient for the Amenities to be constructed separately from the remainder of the Phase I Project; and (ii) CRC and Developer have agreed that Developer shall construct the Amenities as part of the Phase I Project. Accordingly, CRC and Developer agree that Developer shall be the party responsible for carrying out construction of the Amenities. Because: (i)the Amenities constitutes a public amenity; and (ii) but for Developer agreeing to design and construct the Amenities as part of the Phase I Project, CRC would have incurred the cost to design and construct the Amenities; CRC agrees that CRC shall pay the Amenities Rebate to Developer upon completion of the Phase I Project. Upon completion of the Phase I Project, Developer shall submit to CRC statements, invoices, receipts and/or other items that establish the amount of the Amenities Off-Site Design Costs, the Amenities On-Site Design Costs, the Amenities Off-Site Construction Costs, and the Amenities On-Site Construction Costs. Based upon the foregoing items submitted to CRC, CRC and Developer jointly shall determine the amount of the Amenities Off-Site Savings, the Amenities On-Site Savings, and the Total Available Savings. Within 15 days after determining the foregoing amounts, CRC shall pay the full amount of the Amenities Rebate to Developer. 4. Rebate and Replacement Bonds Agreement. (a) Rebate. Pursuant to the Development Proposal: (i)the cost to construct the Underground Facilities was to be funded through tax-exempt TIF bonds; (ii) Developer was to purchase the tax-exempt TIF bonds; and (iii)the sole source of payment of debt service on the tax-exempt TIF bonds was to be the Increment. Subsequent to the acceptance of the Development Proposal, CRC determined that the best structure for issuing TIF bonds is the structure described on Exhibit B-1, and CRC intends to issue the TIF Bonds as described on Exhibit B-1. However, issuing TIF Bonds as described on Exhibit B-1 will result in the interest on the TIF Bonds being taxable instead of tax- exempt. Developer has agreed, notwithstanding that the TIF Bonds will be taxable instead of tax-exempt, to purchase the TIF Bonds; provided that, to compensate Developer for the differential loss of net benefit due to the fact that the TIF Bonds will be taxable(instead of tax-exempt), and so long as there is no continuing Event of Default, CRC shall pay the Interest Rebate to Developer on the third anniversary of the Phase I Closing. (b) Replacement Bonds. CRC, at its option, exercised by delivery of written notice to Developer prior to the third anniversary of the Phase I Closing, may elect to issue Replacement Bonds as described on Exhibit B-2; provided that, if CRC notifies Developer of its election to issue Replacement Bonds, then CRC diligently shall pursue completion of such issuance. If CRC issues Replacement Bonds, then: (i) Developer shall purchase the Replacement Bonds on the same basis as it has committed to purchase the taxable TIF Bonds; provided that the taxable TIF Bonds shall remain in place with respect to the Retained Spaces; (ii) notwithstanding the terms and conditions of Subsection 4(a), CRC shall not be required to pay the Interest Rebate to Developer; and (iii) Developer shall convey the Underground Facilities to CRC or the Designee Agency to,be operated in accordance with the Facilities Management Agreement; provided that.Developer may elect to retain the Retained Spaces. (c) Put Option. If CRC does not elect, prior to the third anniversary of the Phase I Closing, to issue Replacement Bonds, then, at any time after the third anniversary of the Phase I Closing, Developer may require CRC or the Designee Agency to accept a conveyance of the Underground Facilities; provided that Developer may elect to retain the Retained Spaces. In the event of such a conveyance, CRC or the Designee Agency shall operate the Underground Facilities in accordance with the Facilities Management Agreement. (d) Additional Agreements. The Rebate and Replacement Bonds Agreement shall provide that, if Developer conveys the Underground Facilities to CRC or the Designee Agency, then, in connection with such conveyance, Developer and CRC or the Designee Agency shall enter into such agreements as are necessary for the use, operation, and management of the Underground Facilities, including, without limitation, the Garage Access Declaration, the Facilities Management Agreement, the Apartments Stacking Declaration, the Hotel Stacking Declaration, the Public Areas Management Agreement, and the Legal Description Agreement. 5. Closing Documents. At each of the Phase I Closing, the Phase II Closing, and/or the Phase III Closing, CRC and/or Developer, as applicable, shall execute and deliver the following documents: (a) a fully executed limited warranty deed conveying to Developer marketable, indefeasible fee simple title to the Phase I Site, the Phase II Site, or the Phase III Site, as the case may be,free and clear of any and all liens, encumbrances, easements, restrictions, covenants, and other title defects, except the Permitted Exceptions; (b) a vendor's affidavit in form and substance required for the Title Insurer to delete the standard "pre-printed" exceptions; (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 Phase I Site, the Phase II Site, or the Phase III Site, as the case may be, is not"property" under IRPTL; (e) at the Phase I Closing, a fully executed confirmation by CRC of the representations and warranties set forth in Subsection 11(a); (f) at the Phase I Closing, the Rebate and Replacement Bonds Agreement; (g) at the Phase I Closing, the Phase II Agreement and the Phase III Agreement; (h) at the Phase II Closing, a fully executed confirmation by CRC of the representations and warranties set forth in Subsection 11(a), to the extent that such representations and warranties apply to the Phase II Site and the Phase III Site; (i) at the Phase III Closing, a fully executed confirmation by CRC of the representations and warranties set forth in Subsection 11(a), to the extent that such representations and warranties apply to the Phase III Site; (j) at each of the Phase I Closing, the Phase II Closing, and the Phase III Closing, a fully executed confirmation by Developer of the representations and warranties set forth in Subsection 11(b); (k) at each of the Phase I Closing, the Phase II Closing, and the Phase III Closing, a confirmation that Developer has obtained all approvals required to be obtained pursuant to the City Center Declaration from the Architectural Review Committee, which confirmation shall be executed by a majority of the members of the Architectural Review Committee; (I) at the Phase I Closing, a site work, utility, access, and staging easement, pursuant to which CRC shall grant to Developer temporary easements for construction staging; provided that, such easement agreement shall provide that Developer shall coordinate its construction staging with performance and construction of the CRC Site Work, the CRC On-Site Improvements, and the CRC Off-Site Improvements; (m) copies of such resolutions, consents, authorizations, and other evidence as CRC 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 CRC or Developer, as the case may be; and (ii) the: (A)execution and delivery of such documents, the conveyance of the Phase I Site, the Phase II Site, or the Phase III Site, as the case may be, to Developer; (B) acquisition of the Phase I Site, the Phase II Site, or the Phase III Site, as the case may be, by Developer; and (C) performance by CRC or Developer, as the case may be, of its obligations hereunder and under the foregoing documents; duly have been authorized by CRC or Developer, as the case may be; and (n) such other customary documents and instruments as CRC or Developer, as the case may be, or the Title Insurer reasonably may request in connection with the Closing. The obligation of CRC and/or Developer, as applicable, to execute and deliver the foregoing documents shall survive the applicable Closing, and, to the extent that any of the foregoing documents are not executed in connection with the applicable Closing, CRC and/or Developer, as applicable, shall execute and deliver such documents as soon as reasonably is possible after the applicable Closing. 6. Title Policies. At the Phase I Closing, CRC, at its cost and expense, shall deliver to Developer a current form ALTA owner's policy of title insurance with respect to the Phase I Site, which policy shall: (a) be issued by the Title Insurer, as agent for Lawyers Title Insurance Corporation or Commonwealth Land Title Insurance Company; (b) conform with the Title Commitment; provided that all exceptions other than the Permitted Exceptions shall have been deleted; and (c) have a face value equal to the applicable Purchase Price. At each of the Phase II Closing and the Phase III Closing, CRC, at its expense, shall deliver to Developer an endorsement to the owner's policy, which endorsement shall: (a) have an effective date of the date of the Phase 11 Closing or the Phase III Closing, as the case may be; (b) insure title to the Phase II Site and the Phase III Site, respectively, in the name of Developer; and (c) increase the face amount of such policy by the applicable Purchase Price. Developer shall pay for: (a)any lender's policy of title insurance that it determines to be necessary or appropriate; and (b) all endorsements requested by Developer(including, without limitation, any contiguity endorsements obtained by Developer in connection with the Phase II Closing and/or the Phase Ill Closing), other than the endorsements required to be delivered by CRC at each Closing pursuant to this Section. 7. Developer Conditions to Phase I Closing. The obligations of Developer with respect to proceeding with the Phase I Closing shall be subject to the satisfaction or waiver in writing, within the Due Diligence Period or such other period as is specified by the terms and conditions of this Section, of the following: (a) Provision of Commitment. Within 15 days after the Execution Date, CRC, at its cost and expense, shall have provided the Title Commitment to Developer. (b) Provision of Survey. Within 30 days after the Execution Date, CRC, at its cost and expense, shall have provided the Survey to Developer. (c) Title Defects. Developer shall have determined that neither the Title Commitment nor the Survey reflect any Title Defects, other than those Title Defects that CRC commits to cure or remove at or before the Closing. (d) Right of Entry. Within five days after the Execution Date, CRC shall have provided the Right of Entry to Developer. (e) Provision of Environmental Assessment. Within five days after the Execution Date, CRC shall have provided the Environmental Assessment to Developer. During the Due Diligence Period, Developer, at its cost and expense, may obtain any environmental testing or assessments in addition to the Environmental Assessment that it deems to be necessary or appropriate. (f) Environmental Condition. Developer shall have determined, from its review of the Environmental Assessment and the results of any additional environmental testing or assessments obtained by Developer, that: (i)there is no contamination or pollution of the Project Site or any groundwater thereunder by any hazardous waste, material, or substance in violation of any Laws, other than any contamination or pollution that CRC commits to address and remediate in accordance with a plan approved by Developer; (ii) there are no underground storage tanks located on the Project Site, other than any tanks that CRC commits to close and remove in accordance with a plan approved by Developer; and (iii)there are no wetlands on the Project Site. (g) Physical Condition. Developer shall have determined that no test, inspection, examination, study, or investigation of the Design Control Area establishes that the Design Control Area is unsuitable for the Required Use. (h) Required Permits. Developer shall have: (i) obtained; or(ii) determined that it shall be able to obtain; all Required Permits. (i) Utility Availability. Developer shall have determined that the Required Utilities will exist. (j) Agreement Terms. CRC and Developer shall have agreed on the terms and conditions of the Phase II Agreement, the Phase Ill Agreement, the Rebate and Replacement Bonds Agreement, the Garage Access Declaration, the Facilities Management Agreement, the Apartments Stacking Declaration, the Hotel Stacking Declaration, the Public Areas Management Agreement, and the Legal Description Agreement. (k) Feasibility. Developer shall have determined that the Project is economically feasible. (I) No CRC Breach. As of the Closing Date for the Phase I Closing: (i)there shall be no breach of this Agreement by CRC that CRC has failed to cure within the Cure Period; and (ii)all of the representations and warranties set forth in Subsection 11(a) shall be true and accurate in all respects. (m) No Adverse Change. As of the Closing Date, there shall not have not been any change in the state of title or the environmental condition of any portion of the Design Control Area that: (i) occurred after the expiration of the Due Diligence Period; (ii) is caused by a person or entity other than Developer or any of its affiliates, agents, contractors, or employees; and (iii) results in a reasonable determination by Developer that the condition set forth in Subsection 7(c) or 7(f) no longer is satisfied. If one or more of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied, then, as its sole and exclusive remedy, Developer either may elect to: (i)waive in writing satisfaction of the conditions and to proceed to the Phase I Closing; or(ii)terminate this Agreement by a written notice to CRC; provided that, with respect to breaches of this Agreement by CRC, Developer shall have the rights and remedies set forth in Section 18. If: (i)one of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied; and (ii) Developer fails to terminate this Agreement as permitted in this Section within the Due Diligence Period, or within such other period as is specified for satisfaction of such condition; then such unsatisfied condition automatically shall be deemed to be waived by Developer. Notwithstanding anything to the contrary set forth herein, Developer shall work in good faith to satisfy the conditions set forth in this Section; provided that, Developer shall not be obligated to work in good faith to cause the satisfaction of the conditions set forth in Subsections 7(a), 7(b), 7(d), and 7(e), all of which conditions shall be the obligation of CRC to work in good faith to satisfy. 8. CRC Conditions to Phase I Closing. The obligations of CRC with respect to proceeding with the Phase I Closing shall be subject to satisfaction, or waiver in writing, of the following: (a) prior to the expiration of the Due Diligence Period, CRC and Developer shall have agreed on the terms and conditions of the Phase II Agreement, the Phase III Agreement, the Rebate and Replacement Bonds Agreement, the Garage Access Declaration, the Facilities Management Agreement, the Apartments Stacking Declaration, the Hotel Stacking Declaration, the Public Areas Management Agreement, and the Legal Description Agreement; and (b) as of the Closing Date: (1) there shall be no breach of this Agreement by Developer that Developer has failed to cure within the Cure Period; and (ii)all of the representations and warranties set forth in Subsection 11(b) shall be true and accurate in all respects. If one or more of the foregoing conditions is not, or cannot be, timely and completely satisfied, then, as its sole and exclusive remedy, CRC either may elect to: (a)waive in writing satisfaction of the conditions and to proceed to the Phase I Closing; or(b)terminate this Agreement by a written notice to Developer; provided that, with respect to breaches of this Agreement by Developer, CRC shall have all of the rights and remedies set forth in Section 18. 9. Deferred Diligence. (a) Deferred Agreements. CRC and Developer, each acting in good faith and in a commercially reasonable manner, shall: (i) agree on the form and substance of the Deferred Agreements on or before March 30, 2005; and (ii) execute the Rebate and Replacement Bonds Agreement on or before March 30, 2005. If: (i) Developer has acted in good faith and in a commercially reasonable manner; and (ii) CRC and Developer fail to agree on the form and substance of the Deferred Agreements on or before March 30, 2005; then Developer may terminate this Agreement by delivery of written notice to CRC, which termination shall be effective immediately. (b) Deferred Diligence. Notwithstanding the terms and conditions of Sections 7 and 8, if: (i)the Phase I Closing occurs prior to December 31, 2004; and (ii) on or before March 31, 2005, it is determined that: (A)the Design Control Area is unsuitable for the Required Use; (B) it will not be possible to obtain all of the Required Permits; and/or(C) the Required Utilities will not exist; then Developer may elect to terminate this Agreement by delivery of written notice to CRC. Notwithstanding such notice of termination, there shall not be an effective termination of this Agreement until CRC has had a period of 90 days within which to: (i)cause the Design Control Area to be suitable for the Required Use; (ii) cause it to be possible for Developer to obtain all of the Required Permits; or(iii) cause the Required Utilities to exist; provided that, if any of the foregoing cannot be accomplished in 90 days, despite the exercise of good faith and reasonably diligent efforts, then such termination shall not be effective so long, within the 90 day period, CRC: (A)develops and implements a plan reasonably acceptable to Developer to accomplish the foregoing; and (B) diligently pursues completion of the plan. (c) Effective Termination. If any termination by Developer pursuant to this Section becomes effective, then CRC and Developer shall close on the reconveyance of the Phase I Site to CRC within 15 days after such termination becomes effective. At the closing of the reconveyance: (i) Developer shall execute and deliver closing documents to CRC that are substantially the same in form and substance as those delivered by CRC to Developer at the Phase I Closing; and (ii) CRC shall pay$2,000,000.00 to Developer. 10. Conditions to Remaining Closings. (a) Developer. The obligations of Developer with respect to proceeding with the Phase II Closing and/or the Phase III Closing shall be subject to satisfaction, or waiver in writing, of the following as of the applicable Closing Date: (i)there shall be no breach of this Agreement by CRC that CRC has failed to cure within the Cure Period; (ii)with respect to the Phase II Closing, all of the representations and warranties set forth in Subsection 11(a) shall be true and accurate in all respects, to the extent that such representations and warranties apply to the Phase II Site and the Phase III Site; (iii)with respect to the Phase III Closing, all of the representations and warranties set forth in Subsection 11(a) shall be true and accurate in all respects, to the extent that such representations and warranties apply to the Phase III Site; (iv) there shall not have been any change in the state of title of any portion of the Project Site not yet acquired by Developer that: (A) is caused by a person or entity other than Developer or any of its affiliates, agents, contractors, or employees; and (B) results in a reasonable determination by Developer that the condition set forth in Subsection 7(c) no longer is satisfied with respect to any Site; and (v) there shall not have been any change in the environmental condition of any portion of the Project Site not yet acquired by Developer that: (A) is caused by a person or entity other than Developer or any of its affiliates, agents, contractors, or employees; and (B) results in a reasonable determination by Developer that the condition set forth in Subsection 7(f) no longer is satisfied with respect to any Site. Notwithstanding anything to the contrary set forth herein, Developer and CRC shall work in good faith to satisfy the conditions set forth in this Subsection. (b) CRC. The obligations of CRC with respect to proceeding with the Phase II Closing and/or the Phase III Closing shall be subject to satisfaction, or waiver in writing, of the following as of the applicable Closing Date: (i) there shall be no breach of this Agreement by Developer that Developer has failed to cure within the Cure Period; and (ii) all of the representations and warranties set forth in Subsection 20(b) shall be true and accurate in all respects. Notwithstanding anything to the contrary set forth herein, Developer and CRC shall work in good faith to satisfy the conditions set forth in this Subsection. (c) Failure of Condition. If one or more of the conditions set forth in Subsection 10(a)or 10(b) is not, or cannot be, timely and completely satisfied, then, as its sole and exclusive remedy, Developer or CRC, respectively, either may elect to: (i)waive in writing satisfaction of the conditions and to proceed to the applicable Closing; or(ii)terminate this Agreement with respect to the portions of the Project Site not yet acquired by Developer by a written notice to the other party; provided that, with respect to breaches of this Agreement by a party (including, without limitation, a breach of the obligation to work in good faith to satisfy the conditions set forth in this Section), the other party shall have all of the rights and remedies set forth in Section 18. If: (i) one of the conditions set forth in this Section is not, or cannot be, timely and completely satisfied; and (ii)the party entitled to terminate this Agreement fails to terminate this Agreement in a timely manner; then such unsatisfied condition automatically shall be deemed to be waived by such party. Notwithstanding anything to the contrary set forth herein, CRC and Developer shall work in good faith to satisfy the conditions set forth in this Section. 11. 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 limit, conflict with, or constitute a breach of 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 Design Control Area or any groundwater thereunder by any hazardous waste, material, or substance in violation of any Laws, except: (A) as are disclosed in the Environmental Assessment; and (B)as are discovered by Developer; (iii)to the best of CRC's knowledge, the Project Site is not"property" under IRPTL; (iv) CRC is a public body organized and existing 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; and (ii) 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. 12. Construction. (a) Plans. CRC shall be responsible for: (i) hiring, and paying all costs associated with the services provided by, the Engineers, including, without limitation, that CRC shall enter into the Engineering Contracts; and (ii) causing the Engineers to prepare the Engineering Documents as provided in the Plan Refinement Process. Developer shall be responsible for: (i) hiring the Project Architect and causing the Project Architect to maintain errors and omissions insurance for the benefit of CRC and Developer in the amount of$10,000,000.00; provided that Developer and/or one or more of its affiliates may self-insure against the claims and liabilities that would be covered by errors and omissions insurance if: (A) Developer and/or one or more of its affiliates, as the case may be, has and maintains during the construction period a net worth equal to or greater than $10,000,000.00; and (B) Developer delivers written notice to CRC of its intent to self- insure, together with: (1) sufficient financial information to establish the net worth of Developer and/or one or more of its affiliates, as the case may be; and (2) either: (aa) an undertaking that permits CRC to make claims against Developer and/or one or more of its affiliates, as the case may be, as if Developer had maintained errors and omissions insurance for the benefit of CRC; or(bb) a letter of credit reasonably acceptable to CRC that permits CRC to make calls on the letter of credit as if Developer had maintained errors and omissions insurance for the benefit of CRC, which letter of credit would be renewed annually through the date that is five years after the initial issuance; (ii) coordinating the work of the Project Architect and the Engineers; (iii) preparing the Schematic Design Drawings, the Design Development Documents, the Construction Schedule, and the Construction Drawings; and (iv) proceeding through the Plan Refinement Process (including, without limitation, causing the Project Architect and the Engineers to coordinate the performance of their services as contemplated in, and required by, the Plan Refinement Process). CRC and Developer estimate that the cost to prepare all of the Engineering Documents will be $957,000.00. If the actual cost to prepare all of the Engineering Documents is less than such estimated amount, then CRC shall utilize the difference between the estimated amount and the actual amount to fund other engineering required for the Project, as determined jointly by CRC and Developer. (b) Responsibility. CRC and Developer acknowledge that: (i) because: (A)the Hotel and Retail and the Parking Garages constitute a single integrated project with the Parking Garages supporting the Hotel and Retail; (B)the Hotel and Retail and the Parking Garages will provide support services for the Amenities; and (B)the Phase I Buildings will include public restrooms adequate in size to serve members of the public utilizing the Amenities; neither the Parking Garages nor the Amenities On-Site Improvements can be constructed separately from the remainder of the Phase I Project; (ii)the design of the Phase I Project will be extraordinarily complicated; (iii) construction of the Phase I Project will require careful coordination and integration; and (iv)for purposes of carrying out the construction of the Phase I Project in a carefully coordinated and integrated manner, it is in the best interests of both parties to have a single party assume responsibility for construction of the Phase I Project. Consequently: (i) it is impractical and inefficient for either the Parking Garages or the Amenities On-Site Improvements to be constructed separately from the remainder of the Phase I Project; and (ii) CRC and Developer have agreed that Developer shall construct the Parking Garages and the Amenities On-Site Improvements as part of the Phase I Project. Accordingly, CRC and Developer agree that Developer shall be the party responsible for carrying out construction of the entire Phase I Project; provided that CRC shall remain responsible for carrying out completion of the CRC On-Site Improvements. (d) Fees. As consideration for: (i) coordinating construction of all improvements in or to the Design Control Area; (ii) undertaking responsibility for the construction of the entire Project, except for the CRC On-Site Improvements; (iii) coordinating all design and engineering services with respect to all improvements in or to the Design Control Area; and (b) undertaking responsibility for the design and engineering of all improvements in or to the Design Control Area; all as provided in this Agreement; CRC shall pay the Design Coordination Fee and the Construction Coordination Fee to Developer. The Design Coordination Fee and the Construction Coordination Fee shall be disbursed to Developer monthly in proportion to completion of: (i)the design of all improvements in or to the Design Control Area; or(ii)the construction of the Phase I Project; respectively, with the first such disbursement of the Design Coordination Fee to be made at the Phase I Closing. To receive a distribution of the Design Coordination Fee or the Construction Coordinate Fee, as applicable, Developer shall submit to CRC a statement setting forth the percentage of completion of: (i) the design of all improvements in or to the Design Control Area; or(ii)the construction of the Phase I Project; respectively. (e) Dedication. CRC and Developer acknowledge that there shall be no dedication of rights-of-way or other public areas until after execution of the Legal Description Agreement. 13. Plans. (a) Schematic Design Drawings. On or before the date that is 180 days after the Execution Date, Developer, at its cost and expense, shall submit the Schematic Design Drawings for the Phase I Project to CRC for its review and approval, which approval shall not be withheld unreasonably so long as the Schematic Design Drawings are consistent with the Site Plan, the Development Guidelines, the Development Proposal, and the Laws. Within ten days after CRC receives the Schematic Design Drawings, CRC shall deliver to Developer written notice that it approves or rejects the Schematic Design Drawings; provided that, if CRC rejects all or any part of the Schematic Design Drawings, then such notice shall: (i)specify the part or parts that CRC is rejecting; and (ii) include the specific basis for such rejection. Upon approval of the Schematic Design Drawings, the Schematic Design Drawings shall be final schematic design drawings, subject to modifications by Change Orders. (b) Initial Engineering. Upon approval of the Schematic Design Drawings, the Engineers, working in coordination with the Project Architect, shall prepare the Engineering Documents to the extent necessary for the Project Architect to proceed with and complete the Design Development Documents. (c) Design Development Documents. Contemporaneously, and in coordination, with the preparation of the Engineering Documents described in Subsection 13(b), Developer, at its cost and expense, shall cause the Project Architect, working in coordination with the Engineers, to proceed with and complete the Design Development Documents. Promptly upon completion of the Design Development Documents, Developer shall submit the Design Development Documents, the Construction Schedule, and the Budget to CRC for its review and approval. Within ten days after CRC receives the Design Development Documents, the Construction Schedule, and the Budget, CRC shall deliver to Developer written notice that it approves or rejects the Design Development Documents, the Construction Schedule, and/or the Budget; provided that, if CRC rejects all or any part of the foregoing, then such notice shall: (i) specify the part or parts that CRC is rejecting; and (ii) include the specific basis for such rejection. Upon approval of all of the Design 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 Construction Schedule, the Construction Schedule shall be the final construction schedule with respect to construction of the Phase I Project, subject to modifications by Change Orders. (d) Further Engineering. Upon each approval of the Design Development Documents with respect to a Construction Trade, the Engineers, working in coordination with the Project Architect, shall prepare the Engineering Documents to the extent necessary for the Project Architect to proceed with and complete the Construction Drawings with respect to such Construction Trade. (e) Construction Drawings. Contemporaneously, and in coordination, with the preparation of the Engineering Documents described in Subsection 13(d), Developer, at its cost and expense, shall cause the Project Architect, working in coordination with the Engineers, to proceed with and complete the Construction Drawings with respect to such Construction Trade. Promptly upon completion of the Construction Drawings with respect to a particular Construction Trade: (i) Developer shall submit the Construction Drawings with respect to such Construction Trade, together with an updated Budget, to CRC for its review of the Construction Drawings and approval of the updated Budget; provided that CRC shall not withhold such approval unreasonably; (ii) the Construction Drawings for such Construction Trade shall be final construction drawings with respect to such Construction Trade, subject to modifications by Change Orders; and (iii)the updated Budget shall be the final Budget, subject to further updating pursuant to this Subsection and modifications by Change Orders. (1) Resubmitted Documents. If, at any stage of the Plan Refinement Process, CRC, rather than approving any drawings, documents, schedules, or budgets, instead rejects any drawings, documents, schedules, or budgets, then, within ten days after Developer receives notice from CRC that it has rejected any drawings, documents, schedules, or budgets, Developer shall: (i) revise the drawings, documents, schedules, or budgets; and (ii) resubmit the drawings, documents, schedules, or budgets to CRC. Within ten days after CRC receives the resubmitted drawings, documents, schedules, or budgets, CRC shall deliver to Developer written notice that it approves or rejects the resubmitted drawings, documents, schedules, or budgets; provided that, if CRC rejects all or any part of the resubmitted drawings, documents, schedules, or budgets, then such notice shall: (i) specify the part or parts that CRC is rejecting; and (ii) include the specific basis for such rejection. Upon approval of the resubmitted drawings, documents, schedules, or budgets, the resubmitted drawings, documents, schedules, or budgets shall become part of the Final Developer Plans, subject to modifications by Change Orders. Notwithstanding the involvement of CRC in the Plan Refinement Process, Developer shall be responsible for insuring that revisions submitted by Developer to CRC in writing are implemented in the Final Developer Plans. (g) 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 Plans, as modified by Change Orders. (h) Changes. If Developer desires to make any changes to the Final Developer Plans, then Developer shall submit a Change Order Request to CRC for review and approval. Within ten 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) if such Change Order Request specifies that it is as a result of a determination by a Construction Trade contractor or subcontractor that a portion of the Project falling within the responsibility of such Construction Trade cannot be constructed in accordance with the Final Developer Plans due to actual: (A)on-site conditions; or(B) conflicts with the work to be performed by another Construction Trade contractor or subcontractor; then CRC shall deliver such written notice to Deliver within two business days after receiving the Change Order Request; (ii) CRC shall not withhold its approval unreasonably; and (iii) 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. 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 CRC 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 its review. (i) Additional Phases. Prior to commencing construction of the Phase II Project or the Phase III Project, Developer and CRC shall refine the Final Developer Plans for the Phase II Project or the Phase III Project, as the case may be, by proceeding through the process set forth in this Section; provided that: (i) CRC shall not withhold its approval unreasonably at any stage of the refinement process with respect to the Final Developer Plans for the Phase II Project or the Phase III Project, as the case may be, so long as the materials submitted in connection with a particular stage in the refinement process are consistent with the Development Guidelines, the Development Proposal, and the Laws; and (ii)to the extent that CRC has approved exterior materials for any of the Office Buildings, Developer shall not have to obtain approval for such exterior materials in connection with an Office Building other than the Office Building with respect to which such exterior materials were approved. In addition, Developer shall comply with the terms and conditions of Section 15 in its construction of the Phase II Project and the Phase III Project. Accordingly, for purposes of complying with the terms and conditions of this Subsection, the terms and conditions of Subsections 13(a)through 13(h), and Section 15, shall be deemed to be modified as necessary to apply to the Final Developer Plans for, and the construction of, the Phase II Project or the Phase III Project, as the case may be. (j) Review Panel. Notwithstanding anything to the contrary set forth herein, CRC, at its option, may delegate all or any part of its review and approval or rejection obligations pursuant to this Section to the Plan Review Panel. (k) Declaration Approvals. To the extent that: (i) CRC has approved any drawings, documents, or schedules pursuant to this Section; and (ii) such drawings, documents, or schedules require the approval of the Architectural Review Committee after the date of the Phase I Closing, the Phase II Closing, or the Phase III Closing, as the case may be; CRC, as Declarant under the City Center Declaration and as owner of the Public Amenities Parcel (as defined in the City Center Declaration), shall vote for approval by the Architectural Review Committee of such drawings, documents, or schedules. (I) Design Responsibility. Notwithstanding that CRC is hiring the Engineers and has review and approval rights in the Plan Refinement Process: (i) Developer shall be responsible for the design and engineering of all improvements in or to the Design Control Area; and (ii)as between CRC and Developer, Developer assumes responsibility for defects and deficiencies in the design and engineering (including, without limitation, defects in the Final Documents and Drawings and the Engineering Documents); provided that, nothing in this Subsection shall be deemed to prohibit Developer from proceeding against the Engineers or the Project Architect in the event of any design or engineering defects or deficiencies. (m) Amenities Costs. CRC shall reimburse Developer for the Amenities Off-Site Design Costs and Amenities Off-Site Construction Costs on a monthly basis as such costs are incurred; provided that, disbursements shall be conditioned upon satisfaction of the conditions set forth on Exhibit N. (n) Updates. As the construction of the Parking Garages and the Amenities progresses, Developer shall provide to CRC updated Budgets as there are material changes in the Total Applicable Costs, the Amenities Off-Site Design Costs, or the Amenities Off-Site Construction Costs. 14. CRC Construction. CRC shall complete (or cause completion of) the CRC Site Work, the CRC On-Site Improvements, and the CRC Off-Site Improvements: (a) in a good and workmanlike manner; (b) in accordance with the Final Documents and Drawings, the CRC Construction Plans, the schedule set forth on Exhibit D-1, and the Construction Schedule, as applicable; (c) in compliance with all Laws; and (d) in the case of the CRC On-Site Improvements, in coordination with the construction of the remainder of the Phase I Project. 15. Developer Construction. Developer shall construct all portions of the Phase I Project(other than the CRC On-Site Improvements) in accordance with the following terms and conditions: (a) Permits. Prior to commencing construction of any stage of the Phase I Project, Developer, at its cost and expense, shall obtain and submit to CRC for its review the Required Permits with respect to that stage of the Phase I Project(including, without limitation, evidence of Developer having completed the process, and complied with the requirements, set forth in the City of Carmel C-1 Zoning Ordinance); provided that, to the extent that any Required Permit is required for the use, but not for any element of the construction, of the Phase I Project, then, prior to commencing construction of the Phase I Project, Developer: (i) shall not be required to have obtained such Required Permit; but (ii) shall have completed (and delivered to CRC evidence of such completion) all commercially reasonable actions to ensure that such Required Permit shall be obtained prior to the date on which Developer substantially completes the Phase I Project. (b) Construction. Developer shall construct all portions of the Phase I Project(other than the CRC On-Site Improvements): (i) in a good and workmanlike manner; (ii) in accordance with the Final Developer Plans; (iii) in compliance with the Development Guidelines and the Laws; and (iv) in coordination with the construction of the CRC On- Site Improvements. 16. CRC Inspection. (a) Monthly Inspections. Each month during construction of the Project, the Inspecting Architect, at Developer's cost and expense, shall conduct a Monthly Inspection; provided that the Inspecting Architect shall provide reasonable written notice to Developer prior to each Monthly Inspection. After a Monthly Inspection, CRC may deliver to Developer a Non-Compliance Notice; provided that, upon receipt of a Non- Compliance Notice, Developer shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non-Compliance Notice, except and to the extent that any such Material Defects previously have been accepted, or deemed to have been accepted, by CRC. Upon receipt of written demand, Developer shall pay the Inspecting Architect's fee for each Monthly Inspection, which fee shall not exceed $500.00 per Monthly Inspection. At Developer's election, the Inspecting Architect shall: (i) schedule the Monthly Inspections to coordinate with draw requests submitted by Developer to its construction lender; and (ii) provide to Developer and/or its construction lender an inspection report with respect to Monthly Inspection. (b) Sample Work Inspection. If Developer delivers to CRC an Inspection Request for a Sample Work Inspection, then, within the Inspection Period, CRC and/or the Inspecting Architect, at Developer's cost and expense, shall: (i) conduct a Sample Work Inspection of the Sample Work Installation identified in that Inspection Request; and (ii) deliver to Developer, if applicable, a Non-Compliance Notice; provided that: (i) upon receipt of a Non-Compliance Notice with respect to such Sample Work Installation, Developer shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non-Compliance Notice; and (ii) all items or components of such Sample Work Installation with respect to which no Material Defects are identified in a Non-Compliance Notice shall be deemed to be accepted by CRC. Any portion of the Phase I Project, the Phase II Project, or the Phase III Project subsequently constructed or installed in accordance with: (i) a Sample Work Installation that has been accepted, or deemed to be accepted, by CRC; and (ii)the Laws; shall be deemed to be accepted by CRC. (c) Permitted Inspection. Upon reasonable written notice delivered to Developer, which notice shall specify the portion of the construction to be inspected, CRC and/or the Inspecting Architect may perform a Permitted Inspection. After a Permitted Inspection, CRC may deliver to Developer a Non-Compliance Notice; provided that, upon receipt of a Non-Compliance Notice, Developer shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non-Compliance Notice, except and to the extent that any such Material Defects previously have been accepted, or deemed to have been accepted, by CRC. (d) Final Inspection. If Developer delivers to CRC a written request for a Final Inspection, then, on or before the later of the date that is five business days after: (i) receipt by CRC of such request; or(ii) the date specified in such request as the substantial completion date; CRC and/or the Inspecting Architect, at Developer's cost and expense, shall: (i) conduct the Final Inspection; and; and (ii) deliver to Developer, if applicable, a Non-Compliance Notice; provided that: (i) upon receipt of a Non- Compliance Notice, Developer shall correct, or cause to be corrected, as soon as is practicable, all Material Defects identified in the Non-Compliance Notice; and (ii) all items or components of the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, with respect to which no Material Defects are identified in a Non- Compliance Notice shall be deemed to be accepted by CRC. Upon: (i) correction of all Material Defects identified in the Non-Compliance Notice; or(ii) deemed acceptance by CRC of the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, CRC shall have no further inspection rights with respect to the construction of the Phase I Project, the Phase II Project, or the Phase III Project, respectively. (e) Latent Defects. Notwithstanding anything to the contrary set forth herein, no acceptance, or deemed acceptance, by CRC pursuant to this Section shall be applicable with respect to any Latent Defects. An acceptance, or deemed acceptance, by CRC pursuant to this Section shall not mean that CRC has accepted, or Developer has been relieved of, responsibility for: (i) compliance with the Laws; (ii)the proper application of construction means or methods; or(iii) correcting any portion of the Project if it later is determined that such portion is inconsistent with the proper completion of a subsequent portion of the Project. An acceptance, or deemed acceptance, by CRC pursuant to this Section shall not be binding on any other governmental authority, and any inspections performed by CRC or the Inspecting Architect pursuant to this Section shall not preclude, or be deemed to be in substitution of, inspections required or permitted to be performed by other governmental authorities. (f) General. In the case of an inspection by CRC and/or the Inspecting Architect pursuant to this Section, CRC and/or the Inspecting Architect shall: (i) comply with all health and safety rules of which CRC has been informed that have been established for personnel present on the construction site; and (ii)coordinate the inspections so that the inspections do not interfere with the performance of construction by Developer. 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. (g) Copies. Developer shall: (i) deliver promptly to CRC copies of all draw requests delivered to Developer's construction lender; and (ii) cause its construction lender to deliver to CRC, promptly upon receipt thereof, copies of such lender's inspection reports. 17. Insurance. During construction of the Project, Developer shall maintain the policies of insurance described on Exhibit J. Each such policy shall: (a) be written by a company with a Best rating of B+ or better; and (b) provide that the same shall not be modified or canceled without written notice to CRC at least 30 days in advance. The policy of general liability insurance required by this Section shall name CRC 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. 18. 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 receipt of written notice that such payment is due; and (ii)with respect to any other obligation, if such failure is not cured within the Cure Period. (b) Remedies. Subject to the terms and conditions of Subsection 18(c) and Section 19(which terms and conditions shall control over this Subsection), whenever an Event of Default occurs, 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 8% per annum. Notwithstanding anything to the contrary set forth herein, CRC shall exercise its rights under this Subsection subject to the lender protection provisions set forth in Exhibit K. (c) Failure to Close. Notwithstanding the terms and conditions of Subsections 18(a) and (b), if Developer: (i)fails to close on the Phase II Site on or before December 31, 2009; or(ii) after closing on the Phase II Site, fails to close on the Phase III Site on or before December 31, 2011; then, in either case, the sole remedy of CRC shall be to terminate this Agreement with respect to the Phase II Site(if Developer has not closed on the Phase II Site)and/or the Phase III Site, the Phase II Agreement(if Developer has not closed on the Phase II Site), and the Phase III Agreement. (d) No Remedy 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 (for example, as stated in Subsection 18(c) or Section 19); instead, each and every such right or remedy shall be: (i) cumulative; and (ii) 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. 19. Recapture by CRC. (a) Recapture Right. Subject to the force majeure provisions of Section 24, if Construction Commencement has not occurred with respect to the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, within the first to occur of: (i)45 days after the scheduled date for commencement set forth in the Construction Schedule; or(ii) in the case of: (A)the Phase I Project, 12 months after the Closing Date for the Phase I Site; or (B)the Phase II Project or the Phase III Project, six months after the Closing Date for the Site on which such portion of the Project is to be constructed; then, at any time until Construction Commencement has occurred with respect to the Phase I Project, the Phase II Project, or the Phase III Project, as the case may be, CRC may elect to require that Developer reconvey to CRC any or all of the Sites with respect to which: (i) Developer has closed; and (ii) Construction Commencement of the portion of the Project to be constructed on such Site has not occurred; and the purchase price payable by CRC for such reconveyance shall be the Purchase Price paid by Developer for the applicable Site, together with interest on such Purchase Price at 5% per annum from the applicable Closing Date until the date that CRC elects to require Developer to reconvey the applicable Site to CRC. Notwithstanding anything to the contrary set forth herein: (i) if CRC exercises the right of reconveyance and recapture set forth in this Section, then all rights of Developer hereunder with respect to the acquisition and development of the Phase II Site (except to the extent that Developer has: (A)closed on the Phase II Site; and (B) caused Construction Commencement of the Phase II Project to have occurred) and the Phase III Site automatically shall terminate; (ii)the right of reconveyance and recapture set forth in this Section shall be the sole remedy available to CRC for a failure by Developer to cause Construction Commencement to occur with respect to the Phase II Project or the Phase III Project, as the case may be, on or before the dates set forth in this Section; (iii) if CRC exercises the right of reconveyance set forth in this Section due to a failure by Developer to cause Construction Commencement to occur with respect to the Phase I Project on or before the date set forth in this Section, then such right of reconveyance and recapture shall be the sole remedy available to CRC for such failure; and (iv) CRC shall be entitled to the remedy of specific performance to enforce the obligations of Developer to reconvey to CRC the Phase I Site, the Phase I I Site, or the Phase III Site, as the case may be, in accordance with the terms and conditions of this Section. (b) Reconveyance Closing. If CRC elects to require Developer to reconvey the Phase I Site, the Phase II Site, and/or the Phase III Site in accordance with the terms and conditions of this Section, then CRC and Developer shall close the reconveyance within 15 days after such election. At the closing of the reconveyance: (i) Developer shall execute and deliver closing documents to CRC that are substantially the same in form and substance as those delivered by CRC to Developer at the applicable Closing; provided that Developer also shall execute and deliver such easements with respect to the portions of the Project Site retained by Developer as CRC shall determine to be necessary or appropriate for the development and use of the Phase I Site, the Phase II Site, and/or the Phase III Site, as the case may be; (ii)the limited warranty deed shall be subject only to the Permitted Exceptions; and (iii) real estate taxes and assessments shall be allocated in the manner customary for commercial real estate transactions in the Carmel, Indiana, area. 20. Mutual Indemnification. CRC shall indemnify and hold harmless Developer 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 within the Design Control Area by CRC or any party acting by, under, through, or on behalf of CRC, including, without limitation, the performance of the Goodyear Remediation; (b) any contamination or pollution of the Project Site or any groundwater thereunder by any hazardous waste, material, to the extent that such contamination or pollution existed on the Execution Date; (c)the negligence or wilful misconduct of CRC or any party acting by, under, through, or on behalf of CRC; or(d)the breach by CRC of any term or condition of this Agreement. Developer shall indemnify and hold harmless CRC 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 within the Design Control Area by Developer or any party acting by, under, through, or on behalf of Developer; (b)the performance of any work within the Design Control Area by Developer or any party acting by, under, through, or on behalf of Developer; (c) Developer suffering or causing the filing of any mechanic's lien against any portion of the Design Control Area owned by CRC; or (d) the negligence or wilful 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, subject to the limitation set forth in Subsection 19(c). 21. Assignment. CRC shall not assign this Agreement, except to another agency or instrumentality of the City of Carmel, Indiana, that assumes the obligations of CRC hereunder, without the prior written consent of Developer. Until completion of the Project, Developer shall not assign this Agreement, or sell any of the Sites, without the prior written consent of CRC; provided that: (a) After completion of the Phase I Project, the Phase II Project, or the Phase III Project, Developer may sell the Phase I Site, the Phase II Site, or the Phase III Site, respectively; and (b) After the Phase II Closing or the Phase III Closing, as the case may be, but prior to completion of the Phase II Project or the Phase III Project, respectively, Developer may sell the Phase II Site or the Phase III Site to a Qualified Developer, in which case, Developer shall: (i)deliver to CRC a written notice: (A) identifying the proposed purchaser of such Site; (B) establishing that the proposed purchaser is a Qualified Developer; and (C) stating the purchase price to be received by Developer with respect to such Site; and (ii)assign to such Qualified Developer: (A) this Agreement, to the extent that this Agreement pertains to such Site; and (B)the Phase II Agreement and/or the Phase III Agreement, as applicable; provided that, if Developer sells the Phase II Site or the Phase III Site at any time before Construction Commencement has occurred with respect to the Phase II Project or the Phase III Project, respectively, to any Qualified Developer that is not controlled by Bruce Cordingly, Gerald Pedigo, or Phillip Stoffrogen, then, contemporaneously with the closing by Developer on its sale of such Site, Developer shall pay to CRC 50% of the amount by which the purchase price received by Developer with respect to such Site exceeds the applicable Purchase Price paid by Developer for such Site. Notwithstanding any assignment permitted under this Section, CRC 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 CRC or Developer, as the case may be, from such performance. 22. Notice. Any notice required or permitted to be given by either party to this Agreement shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by facsimile, with electronic confirmation of receipt; or (c) sent by national overnight delivery service, with confirmation of receipt, addressed as follows: to CRC at City of Carmel, Indiana, One Civic Square, Carmel, Indiana 46032, Facsimile: 317-844-3498, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., Wallack Somers & Haas, PC, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317-231-9900; to Developer at 770 3`d Avenue Southwest, Carmel, Indiana 46032, Facsimile: 317-587- 0340, Attn: Bruce Cordingly. Either party may change its address for notice from time to time by delivering notice to the other party as provided above. 23. Authority. Each undersigned person executing this Agreement on behalf of CRC and Developer represents and certifies that: (a) he or she fully is empowered and duly has been authorized by all necessary action of CRC and Developer, respectively, to execute and deliver this Agreement; (b) he or she has 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. 24. Force Majeure. Notwithstanding anything to the contrary set forth herein, if either party is delayed in, or prevented from, observing or performing any of its obligations under, or satisfying any term or condition of, this Agreement as a result of: (a) an act or omission of the other party; or(b) any other cause that is not within the reasonable control of such party(including, without limitation, unusually inclement weather, the unusual unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions of public utility providers, but excluding a lack of financial resources); then: (a) such observation, performance, or satisfaction shall be excused for th'e period of days that such observation, performance, or satisfaction is delayed or prevented; and (b)the deadlines for observation, performance, and satisfaction, as applicable, shall be extended for the same period. 25. Miscellaneous. CRC and Developer jointly shall establish rules for the use of the Amenities, which rules shall include the requirement that events taking place in the Amenities must end by 10:00 p.m. unless otherwise approved by Developer. Subject to Section 21, this Agreement shall inure to the benefit of, and 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. Except as specifically set forth herein, no third party beneficiary rights shall be deemed to be created by this Agreement. The invalidity, illegality, or unenforceability of any one or more of the terms and conditions of this Agreement shall not affect the validity, legality, or enforceability of the remaining terms and conditions 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 to this Agreement are attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, CRC and Developer have executed this Project Agreement as of the day and year first written above. THE CITY OF CARMEL REDEVELOPMENT COMMISSION By: Ronald Carter, Vice-President PEDCOR OFFICE, LLC By: C Printed: s uct. • A Title: P(eS;dl en"� INDEX TO EXHIBITS Exhibit A Depiction of City Center Site Exhibit A-1 Depiction of Amenities Site Exhibit B-1 TIF Bond Structure Exhibit B-2 Replacement Bond Structure Exhibit C Depiction or description of Public Areas Exhibit D Description of CRC Site Work, CRC On-Site Improvements, and CRC Off-Site Improvements Exhibit D-1 Schedule for certain portions of CRC Site Work and CRC Off-Site Improvements Exhibit D-2 Plans for certain portions of CRC Site Work and CRC Off-Site Improvements Exhibit E Completion dates for each of Phase I Project, Phase II Project, and Phase III Project Exhibit F Development Guidelines Exhibit G Renderings and descriptions submitted in Development Proposal Exhibit H Depiction and/or de scription of Project Site, including breakdown into Phase I Site, Phase II Site, and Phase III Site Exhibit H-1 Depictions of Loading Facilities and Parking Garages. Exhibit H-2 Depiction of Goodyear Site and location of vacant Goodyear building Exhibit I Site Plan Exhibit I-1 Depiction of Hotel and Retail and of Retail and Apartments Exhibit J Required Insurance Policies (Developer) Exhibit K Lender Protection Provisions Exhibit L Amenities On-Site Improvements Exhibit M Amenities Off Site Improvements Exhibit N Conditions for Disbursement of Amenities Off-Site Design Costs and Amenities Off-Site Construction Costs EXHIBIT F DEVELOPMENT GUIDELINES FOR THE PROPERTY 1. DESIGN GUIDELINES: The following guidelines have been written to direct the character, massing, uses, and general features of the future mixed-use development adjacent to the downtown area of Carmel, Indiana. The proposed site referred to as Parcel No. 5 has been defined on property maps attached to the bid package. 2. EXISTING CONDITIONS: The existing site is surrounded by a variety of structures and uses. There will be all new residential development west of the retail project including for sale townhouses and an office center at the west corner of 3`d and City Center Drive. The existing Carmel City Center is to the south of the project. To the north is the new City Center Drive that has been completed. To the east are existing residential/commercial projects. 3. ZONING: This project will fall under the new C-1 Center District Ordinance (Exhibit—J). 4. LAND USE GUIDELINES: A. Per the master plan prepared by CSO Architects Engineers & Interiors, Parcel No. 5 has been designated as quality retail development focusing primarily on two story buildings. The development of the buildings must be of urban style emphasizing masonry products. The design theme will be a Georgian Colonial with details and massing similar to the existing City buildings to the south of the project. B. The development could consist of a variety of retail buildings, all of which reflect an urban style with buildings close to streets. It is anticipated the buildings will be two or three stories in height, with all sloped roofs having a minimum of 10/12 roof pitch with architectural styled roofing shingles. C. The proposed development must, as a minimum, maintain on-site parking or 3.5 spaces per 1000 s.f. of floor area. On street parking shall not count toward the parking requirements. D. It is anticipated that 10% of the ground area as a minimum will be set aside for green space. The landscaping design configuration layout should be in accordance with the current rules and regulations landscaping for office projects as set forth in regulations by the City of Carmel. E. It is anticipated that the overall storm water management for the project will include a master plan for handling storm water runoff to a series of designated points as approved by the Carmel City Engineer. F. The City of Carmel will provide full assistance in obtaining the necessary building permits for the construction of the project. G. The Carmel Redevelopment Commission has negotiated an agreement with the electric utility Cinergy to remove existing overhead power lines and replace with new underground electrical service. These relocation costs are to be borne entirely by Cinergy. As part of a 15 year agreement, Cinergy's requirement is to be the sole provider of elective power to the Carmel City Center. 5. GUIDELINES FOR BUILDING MASSING: A. The maximum height for any of the new structures will be a minimum of two and a maximum of three stories throughout the property. B. The recommended setback from the adjacent property lines shall be in accordance C-1 Center District Ordinance. 6. GUIDELINES FOR THE CHARACTER/ARCHITECTURE: A The overall character of the proposed retail development shall reflect design, massing and features of the existing Carmel City buildings. B. Exterior building materials should be predominantly masonry and timeless in their function and appearance. It is recommended the use of details similar to those found in both the City Hall, Fire Station, and Police Station be incorporated into the overall design features of the project. C. Roads, streets, parking areas shall be concrete or asphalt with 6" high concrete curbing around all perimeter roads, drives, islands, and parking lot edges. D. No overhead power lines will be allowed on the site. E. Internal street and parking lot lighting shall be on poles with fixtures to match new street lighting on City Center Drive. No wall mounted security lights will be allowed. Wall mounted fixtures similar to street lighting is recommended. Color of light shall match existing street lighting on City Center Drive. F. Landscaping shall be provided in accordance with the latest rules and regulations as adopted by the City of Carmel for this project. G. All trash must be concealed in enclosed spaces with a roof along with proper ventilation. H. All building signage will be reviewed by the CRC as part of the final building plan. 7. SCHEDULE: Upon the completion of the development agreement between the Carmel Redevelopment Commission and the Developer, the Developer will have 90 days to submit his final plans for construction to CRC for its review and comment. Upon approval of the plans, the Developer is expected to start construction within 30 days and have the project completed no later than 16 months from the issuance of final building permits. If the Developer intends to phase the project, this information must be made clear in the initial proposal submitted by the Developer. 8. ADDITIONAL INFORMATION: A. It will be the responsibility of the Carmel Redevelopment Commission to provide or arrange for: 1. Land acquisition. 2. Wetland mitigation. 3, Demolition. 4. Architectural design control. 5. Assistance in obtaining local government approvals. 6. Overall site design and site engineering. In addition to the above, the Carmel Redevelopment Commission understands that all utilities are in the right-of-way of Rangeline Road. • 9. PRIVATE DEVELOPERS RESPONSIBILITY FOR INDIVIDUAL PARCEL: A. Final site engineering. B. Building design and construction documents. C. Parking and drives. D. Internal storm water management to property lines and retention areas. E. Coordination with existing easements. F. Site lighting. G. Site landscaping. H. Maintenance. I. Signage (to match city street signs in scale, materials and color). J. Trash control. K. Internal multi-use paths. 10. MASTER PLAN DESIGN CONTROLS: The Carmel Redevelopment Commission will be responsible for reviewing all initial building design concepts, as well as the final construction documents for the project. This review will be to insure that the developer has met the design guidelines criteria, as well as provided the necessary site design and engineering that will conform to the existing and future developments that are anticipated to be incorporated in the overall master plan for the Carmel City Center. 11. See Exhibit J for City Center District Ordinance. EXHIBIT K Lender Protection Provisions Agreement 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. Mortgage shall mean: (a) a mortgage, pledge, or grant of security interest granted 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. Mortgagee shall mean a holder of a Mortgage, and all successors and assigns of such holder. Mortgagee 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 18 of the Agreement or this Exhibit; or(b)receipt of the Mortgagee Notice. Mortgagee Notice shall mean a copy of any notice or demand required or permitted to be made or delivered by CRC to Developer. Mortgagee 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 Exhibit have expired. Replacement Agreement shall mean a replacement of the Agreement entered into by and between CRC and the Replacement Developer upon:(a)the purported termination of the Agreement by CRC; 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 CRC 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 CRC 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. (b) CRC shall deliver to each Mortgagee, at its notice address and in accordance with the terms and conditions of Section 22 of the Agreement, 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 18 of the Agreement; or(B) 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, CRC shall not exercise any of its rights and remedies under Section 18 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 CRC of its intention to cure the Event of 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 90 days after the date of such purported termination, a Mortgagee requests that CRC 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 pay or 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 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 CRC 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. EXHIBIT N Conditions for Disbursement 1. Initial Conditions for Disbursements. (a) Developer shall have delivered to CRC the insurance policies and/or certificates required hereunder. (b) Execution and delivery of written agreements by the Project Architect and all engineers and consultants providing services with respect to the Amenities Off-Site Improvements, pursuant to which the Project Architect and each such engineer and consultant shall: (i)consent to the assignment to CRC by Developer of the right, title, and interest of Developer in and to all agreements and contracts entered into by and between Developer and the Project Architect or such engineer or consultant with respect to the Amenities Off-Site.Improvements; and (ii) agree to continue performing its obligations under the applicable agreement or contract if CRC exercises its rights and remedies under this Agreement, so long as CRC agrees to compensate the Project Architect or such engineer or consultant in accordance with the terms and conditions of the applicable agreement or contract for obligations performed for CRC after CRC exercises its rights and remedies under this Agreement;which consents and agreements shall be in form and substance reasonably acceptable to CRC. (c) Receipt by CRC of a copy of the executed Amenities Construction Contract. (d) Receipt by CRC of all material subcontracts for the performance of work under the Amenities Construction Contract. (e) Execution and delivery of an agreement by the General Contractor, pursuant to which the General Contractor shall: (i)consent to the assignment to CRC by Developer of the right, title, and interest of Developer in and to the Amenities Construction Contract; and (ii)agree to continue performing its obligations under the Amenities Construction Contract with respect to completion of the Amenities Off-Site Improvements, notwithstanding any default by Developer, if CRC agrees to compensate the General Contractor in accordance with the terms and conditions of the Amenities Construction Contract for obligations performed for CRC after any default by Developer; which consent and agreement shall be in form and substance acceptable to CRC. (f) Receipt and approval by CRC of all Required Permits with respect to the construction of the Amenities Off-Site Improvements in accordance with the terms and conditions of this Agreement. 2. Interim Disbursements. Unless expressly waived by CRC in writing: (a)Developer shall submit the following items to CRC prior to, or together with, each request for a disbursement; and (b)the obligation of CRC to make a disbursement shall be subject to, and conditioned upon, receipt and approval of each of the following items: (a) Two original signed copies of the disbursement request, in form and substance as required under Section 4 of this Exhibit, accompanied by such approvals by the Inspecting Architect and certificates by the General Contractor and Developer as CRC reasonably may request. (b) Original bills or invoices from all contractors, subcontractors, materialmen, and suppliers to which payment will be made. (c) Original lien waivers from all contractors, subcontractors, materialmen, and suppliers that otherwise would have the right to assert liens against the Amenities Site for: (i)work or services performed; or(ii) supplies, material, or equipment provided. (d) A current Project Architect's or engineer's certificate stating that the portions of the Amenities Off-Site Improvements completed to date have been constructed in accordance with the Final Developer Plans, as applicable to the Amenities Off-Site Improvements, the Laws, and the terms and conditions of this Agreement. (e) The Inspecting Architect shall have: (i) inspected the portions of the Amenities Off-Site Improvements completed to date and approved the same; and (ii)approved the disbursement request. (f) An updated Budget, as applicable to the Amenities Off-Site Improvements, that: (i)reflects change orders approved by CRC; (ii)shows, on a line item basis, all amounts previously spent and projected to be spent; (iii)details, on a line item basis, the amount of any costs savings or overruns; (iv) reflects, on a line item basis, projected cost savings or overruns; and (v)certifies that: (A) such updated Budget has been prepared on a basis consistent with those previously provided to CRC; and (B)except as indicated therein, the assumptions upon which the updated Budget has been prepared are reasonable and have not been changed from previous submissions;which updated Budget shall be in form and substance reasonably acceptable to CRC. 3. Final Disbursement. The obligation of CRC to make the final disbursement shall be subject to, and conditioned upon, the satisfaction of the following conditions, unless expressly waived by CRC in writing: (a) Substantial completion of the Amenities Off-Site Improvements shall have occurred, as evidenced by the following: (i) A final Project Architect's or engineer's certification of substantial completion, stating that the Amenities Off-Site Improvements have been substantially completed in accordance with the Final Developer Plans, as • applicable to the Amenities Off-Site Improvements, the Laws, and the terms and conditions of this Agreement. (ii) A final inspection by the Inspecting Architect, and certification of substantial completion by the Inspecting Architect. • (iii) A certification of substantial completion by the General Contractor stating: (A) all inspections required by any applicable agencies or regulatory, administrative, or governmental bodies have been completed, such agencies and/or bodies have approved the Amenities Off-Site Improvements, and Developer has satisfied in full all requirements of the agencies and/or bodies; (B) that the General Contractor and all contractors, subcontractors, suppliers, and materialmen have been, or, with proceeds of the final disbursement,will be, paid in full for all work; (C)that no such contractor, subcontractor, supplier, or materialman claims, or has a right to claim, a valid mechanics', materialmens', or similar lien on all or any part of the Amenities Site; and(D)such other representations as CRC reasonably may require. (iv) Two original signed copies of the final disbursement request, in form and substance as required under Section 4 of this Exhibit, accompanied by such approvals by the Inspecting Architect and certificates by the General Contractor and Developer as CRC reasonably may request. (v) Original final bills from all contractors, subcontractors, suppliers, and materialmen to which payment will be made. (vi) Original final lien waivers from all contractors, subcontractors, suppliers, and materialmen that otherwise would have the right to assert _ liens against the Amenities Site for work or services performed, or for supplies, material, or equipment provided. 4. General Requirements. In addition to the requirements of Sections 1, 2, and 3 of this Exhibit, all disbursement requests shall: (a) be submitted to CRC on or before the first day of a calendar month; (b) include a standard AIA Document G702 or such other form as shall be approved by CRC; (c) be approved by the Inspecting Architect; (d) be certified as accurate by the General Contractor and Developer; and (e) indicate thereon the: (i)total costs of constructing the Amenities Off-Site Improvements that have been incurred as of the date of the disbursement request; (ii)total value of work in place and materials stored on the Amenities Site for construction of the Amenities Off-Site Improvements; (iii)total amounts previously disbursed for the Amenities Off-Site Improvements; (iv) amounts and identities of the parties for which disbursement is being requested; and (v)cost of completing the Amenities Off-Site Improvements. Each disbursement request shall be submitted for approval at the next regularly scheduled CRC meeting. Upon approval of a disbursement request, payment shall be made to Developer in the ordinary course of the business of the Clerk-Treasurer of the City for disbursement by Developer to the applicable party; provided that, if there is a continuing Event of Default, then CRC may elect to pay the applicable party directly. Developer shall: (a) be responsible for advising CRC of any delays in receiving any disbursement; and (b)allow CRC a reasonable opportunity to cure any delay or deficiency in any disbursement. 5. General Limitations. CRC shall be obligated to make disbursements only for: (a)work in place and approved by the Inspecting Architect; (b)materials properly stored on the Amenities Site for construction of the Amenities Off-Site Improvements; and (c)other costs, expenses, and payments shown on the approved Budget. The maximum disbursement to which Developer shall be entitled with respect to construction items shall equal: (a)the cost of completing work in place and approved by the Inspecting Architect, less: (i) prior disbursements with respect thereto; and (ii) retainage of 10% of the cost of completing work in place; plus (b)the cost of materials stored on the Amenities Site for construction of the Amenities Off-Site Improvements, less prior disbursements with respect thereto. Developer shall: (a) withhold retainage under all contracts and sObcontracts in an amount not less than 10%from each of its contractors, subcontractors, suppliers, and materialmen; and (b) indicate the amount of retainage withheld on its disbursement requests and on revisions and updates of the Budget. CRC shall not make disbursements for retainage, unless and until: (a) Developer requests disbursement for retainage on a disbursement request; and (b)the contractor, subcontractor, supplier, and/or materialmen are entitled to receipt of such retainage. EXHIBIT - Dl Schedule of CRC Site Work and CRC Off Site Improvements On Site Improvements Schedule 1. Relocation of high voltage overhead power lines through Parcel #5 to start construction of underground duct work by 4/1/05 with completion of cable installation by 10/1/05. 2. Relocation of underground utilities to start 3/1/05 and complete 6/1/05. 3. Goodyear demolition and environmental cleanup starting 12/1/04 with completion 2/1/05. Off Site Improvements 1. Construction of underground storm water detention areas to start 5/1/05 and complete by 8/1/05 for both locations. 2. 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