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