31-26 Ordinance Authorizing Payments in Lieu of Taxes for Western Avenue I, LLC (Substitute)

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building receiving its Certificate of Occupancy (the "C of 0") from the City (each payment, a "PILOT", and collectively, the "PILOTs"). Upon receipt by the Owner of an Annual In Lieu Amount bill from the Controller of the City, the Owner shall remit its semi-annual PILOT to the City at the Office of the Controller on or before each installment due date. Subject to Section 2.4, the aggregate annual amount of each year's semi-annual PILOT shall not exceed the Annual in Lieu of Amount. Section 2.3. The obligation of the Owner to pay the Annual In Lieu of Amounts shall be subordinate to the obligations of the Owner with respect to the Owner's obligation to make debt service payments on any financing which may now or in the future be secured by a mortgage on the Property. The City agrees to execute whatever documents any lender to the Owner now or in the future may require which are commercially reasonable in order to confirm the foregoing subordination. Section 2.4. The City shall have the right to enforce the payment of all PILOTs when due, including all penalties, costs, and expenses imposed under Indiana Code § 6-1.1-22-1, et. seq., and Indiana Code §6-1.1-37-1,et seq. or any statute which amends or replaces them for delinquent PILOTs, in the same manner as the City enforces the obligations of non-exempt taxpayers. Section 2.5. The authorized lenders and investors of the Owner shall have the right,but not the obligation, to cure a monetary default under this Agreement. This City shall accept a cure tendered by a lender or investor if: (a) either the City or the Owner has received written notice of default;(b)the lender or investor provides written notice of its election to cure together with written documentation of its authorization to cure;and(c)the cure is made in full in immediately available funds, including any interest, penalties, costs, and fees then due under this Agreement. Upon the City's receipt of a cure under this subsection, the cured default shall be considered as if provided by the Owner. No cure under this subsection shall waive any other existing default, waive or limit the City's rights or remedies with respect to any other uncured default, or constitute the City's consent to any transfer or change of control of Owner. Section 3 Term. Section 3.1. Except as otherwise provided in Section 4, the PILOT Agreement and applicable PILOTs required hereunder shall continue for a period of fifteen (15)years beginning with the initial year that a PILOT is made by the Owner to the City (the "Initial Term"). The Initial Term may be extended by a mutual,written agreement of the Parties. Section 4. Termination. Section 4.1. City or Owner may terminate this PILOT Agreement at any time upon a material breach of this PILOT Agreement or failure to perform any term of this PILOT Agreement by the other, unless such material breach or failure is cured within thirty (30) days after written notice is given to the party in material breach;provided,however,that if any such claimed material breach or failure is of a nature that it cannot be cured within thirty (30) days, a non-breaching party shall not have the right to terminate this PILOT Agreement as long as the party in material 4