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4 <br /> MAY 10,2013 DRAFT <br /> NOW TIIEREFORE,for and in consideration of the mutual promises as stated herein and <br /> for other good and valuable consideration, the receipt and sufficiency of which is hereby <br /> acknowledged,the parties to this Sixth Amendment agree as follows: <br /> 1. Capitalized Terms. All capitalized terms used herein and not otherwise defined <br /> shall have the meaning set forth in the PDA. <br /> 2. Agreements Regarding PDA Obligations. Developer and City have all <br /> thoroughly reviewed their obligations under the PDA and agree that Exhibit A attached to this <br /> Sixth Amendment accurately and completely sets forth the status of the obligations of, and <br /> performance by,Developer and the City under the PDA. <br /> 3. Development Agreement/FEIS Obligations. As of the date of this Amendment, <br /> "Plants and Animals A," as updated by the Shoreline Permit SMA-009-001, is the only item in <br /> Attachment Ito the Development Agreement that has been completed. Developer shall deliver <br /> to the City the as-builts and monitoring reports required under "Plants and Animals A" within <br /> ten(10)days after the date of this Amendment. <br /> 4. Payment of Amounts Due and Owing to the City. Developer owes the City <br /> $172,138.32, which is in connection with (a) improvements installed at Developer's request <br /> during the City's 41st Street extension project and (b) Developer's share of the escrow fees in <br /> relation to the closing of the replacement mitigation easements and subordination agreements <br /> with BNSF Railway Company. Developer shall pay such$172,138.32 to the City within ten(10) <br /> days after the date of this Sixth Amendment. <br /> 5. New Markets Tax Credits. Section 11 of the Fifth Amendment is hereby <br /> terminated. In the event that the City makes an award of Allocation to one or more Recipients <br /> (as such terms are defined in the Fifth Amendment), the City will have no obligation to collect <br /> any amount from any Recipient or to pay Developer. <br /> 6. Estoppel. With respect to (i)the PDA, (ii)the Development Agreement, (iii) the <br /> Consent Decree, (iv) the Landfill Environmental Agreement, (v) all environmental agreements, <br /> easements, and subordination agreements in connection with the Properties in which the City and <br /> one or more OM Entities are parties thereto, and (vi) all permits, approvals or authorizations <br /> issued or approved solely by the City in connection with the OM Entities' development of the <br /> Properties (the PDA, Development Agreement, Consent Decree, Landfill Environmental <br /> Agreement and all such environmental agreements, easements, subordination agreements, <br /> permits, approvals and authorizations collectively, the "Riverfront Agreements"), the City and <br /> the OM Entities agree that: (A) as of the date of this Sixth Amendment,neither the City nor any <br /> of the OM Entities has committed or consented to any material default or breach of any provision <br /> of any Riverfront Agreement; (B)as of the date of this Sixth Amendment, there exists no <br /> condition, state of facts or event that, with the passing of time or the giving of notice, would <br /> constitute a material default or breach by the City or any of the OM Entities under any of the <br /> Riverfront Agreements; (C) there is no defense, offset, claim or counterclaim by or in favor of <br /> any party against the City or any of the OM Entities under any Riverfront Agreement or against <br /> the obligations of any Party other than the City or the OM Entities under any of the Riverfront <br /> -2- <br /> 9 <br />