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14-103 Resolution No. 14-103 RESOLUTION AUTHORIZING EXECUTION OF A SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE WITH FIRST AMERICAN BANK AND WITH FIRST AMERICAN BANK, SOLELY AS TRUSTEE UNDER TRUST AGREEMENT DATED AUGUST 19, 2009, TRUST NUMBER 1-09-124 (Settlement of cases First American Bank v. City of Elgin, et al, Case No. 12 CH 3967, and First American Bank, solely as Trustee etc. v. City of Elgin, Case No. 12 MR 571) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Settlement Agreement and Mutual General Release on behalf of the City of Elgin with First American Bank and with First American Bank, solely as Trustee under Trust Agreement dated August 19, 2009, Trust Number 1-09-124 (Settlement of cases First American Bank v. City of Elgin, et al, Case No. 12 CH 3967, and First American Bank, solely as Trustee etc. v. City of Elgin, Case No. 12 MR 571), a copy of which is attached hereto and made a part hereof by reference. BE IT FURTHER RESOLVED that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute all documents necessary in conjunction with the subject Settlement Agreement and Mutual General Release authorized herein. s/David J. Kaptain David J. Kaptain, Mayor Presented: August 13, 2014 Adopted: August 13, 2014 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This Settlement Agreement and Mutual General Release (the "Settlement Agreement"), effective August 14 , 2014 (the "Effective Date"), is made by and between plaintiffs First American Bank, an Illinois banking association, ("First American Bank"), and First American Bank solely as Trustee under the provisions of the Trust Agreement dated 19th of August 2009 and known as Trust Number 1-09-124 and not personally ("Land Trustee" and together with First American Bank, collectively "First American"), and, defendant City of Elgin ("Elgin"), an Illinois municipal corporation. First American and Elgin are sometimes collectively referred to as the "Parties." RECITALS WHEREAS, RSC-Elgin, LLC ("RSC") and Elgin entered into a Development Agreement dated August 11, 2004, as amended by the First Amendment dated March 23, 2005 and further amended by the Second Amendment dated February 22, 2006 (as so amended, the "Development Agreement") providing for the development of certain property located in Elgin, Illinois; WHEREAS, pursuant to the Development Agreement, RSC agreed to develop certain residential and commercial properties otherwise known as the Fountain Square on the River Project ("Fountain Square on the River Project"), and other contributions. Pursuant to the Development Agreement, development of the Fountain Square on the River Project was divided into two phases, Phase I and Phase II; WHEREAS, in exchange for RSC's agreement to develop the Fountain Square on the River Project, and other contributions, Elgin conveyed certain properties to RSC and agreed to 1 DM 1\4555604.5 pay RSC certain funds out of the Elgin Central Area Tax Increment Financing Redevelopment Plan and Project("TIF Funds"); WHEREAS, to further secure the performance of its obligations under the Development Agreement, RSC executed and delivered to Elgin a Subordinated Mortgage and Option Agreement dated March 2, 2005 and recorded March 31, 2005 as Document No. 2005K035745 (the"Subordinated Mortgage"); WHEREAS, RSC obtained construction financing for the development of the Fountain Square on the River Project from First American Bank, which financing is evidenced and secured in part by a Construction Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Financing Statement ("Senior Mortgage") dated March 2, 2006 and executed by First American Bank and RSC, recorded April 12, 2006 as Document No. 2006K039304, and as amended thereafter; WHEREAS, Phase I of the Fountain Square on the River Project is complete, including all items described in the Elgin estoppel letter dated August 5, 2009, and the existing building constructed as Phase I of the Fountain Square on the River Project presently complies with all applicable building and zoning codes and requirements of Elgin; WHEREAS, on or around February 12, 2007, RSC defaulted on its obligations under the Senior Mortgage; WHEREAS, on August 19, 2009, First American Bank, as lender, entered into a Deed in Lieu of Foreclosure Agreement with RSC, as borrower, and Richard S. Curto, as guarantor of the Senior Mortgage, pursuant to which RSC agreed to convey to the Land Trustee certain real and personal property, including but not limited to RSC's right, title, and interest to the 2 DM 1\4555604.5 TIF Funds and title to the parcel of land on which Phase II was to be developed ("Phase H Land"); WHEREAS, a Fountain Square on the River Easement and Operating Agreement dated as of October 18, 2007 was recorded on October 19, 2007 as document no. 2007K106256, as amended by a First Amendment to Fountain Square on the River Easement and Operating Agreement dated as of August 28, 2009 recorded on October 13, 2009 as document no. 2009KO76158 (as so amended,the"Fountain Square Operating Agreement"); WHEREAS, a Declaration of Condominium Ownership of Fountain Square on the River was recorded October 13, 2009 as document no. 2009KO76158 ("Fountain Square Condominium Declaration"); WHEREAS, on October 17, 2012, First American Bank filed a foreclosure action against Elgin, RSC and others in the Circuit Court of the Sixteenth Judicial Circuit, Kane County, captioned First American Bank v. City of Elgin et al., Case Number 12-CH-3967. On October 17, 2012, the Land Trustee filed an action for declaratory judgment, an accounting, and injunctive relief against Elgin in the Circuit Court of the Sixteenth Judicial Circuit, Kane County, captioned First American Bank, solely as Trustee v. City of Elgin, Case Number 12- MR-571. Case Number 12-MR-571 has been consolidated into Case Number 12-CH-3967; WHEREAS, on March 10, 2014, Elgin filed a first amended counterclaim against First American asserting claims for breach of the Development Agreement and, in the alternative, claims for declaratory judgment and quantum meruit (together with the actions filed by First American,the "Lawsuit"); WHEREAS, Elgin denies all allegations by First American Bank and the Land Trustee in the Lawsuit, and denies that it is liable to First American Bank and/or the Land Trustee; 3 DM 1\4555604.5 WHEREAS, First American denies all allegations by Elgin in the Lawsuit, and denies that it is liable to Elgin; WHEREAS, by this Settlement Agreement and the consideration therefor, the Parties desire to resolve any and all disputes, claims or controversies between them whether known or unknown,and avoid the expense of continued litigation; WHEREAS, in consideration of the mutual promises and agreements contained in this Settlement Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: COVENANTS 1. Recitals. The Recitals set forth above are incorporated into and made a part of this Settlement Agreement. 2. Payment for Release of TIF Funds. Within three (3) business days of the Effective Date (such date being designated herein as the "Closing Date"), Elgin agrees to pay to First American the sum of Three Hundred and Fifty Thousand Dollars ($350,000.00) as consideration for First American's release of any claim to the TIF Funds or any other claims against Elgin related to or arising from the Development Agreement or the Lawsuit, as further set forth in Section 12 hereof. Elgin shall make the Payment by wire transfer as separately directed by First American. 3. Conveyance of Phase H Land for Release of Development Agreement. On or before the Closing Date, the Land Trustee shall execute and deliver to Elgin (A) a Trustee's Deed without any representations or warranties whatsoever, conveying title to the Phase II Land, as described in Exhibit A-1 attached hereto, the form of which Trustee's Deed is set forth in Exhibit A-2 attached hereto, and (B) a Parking Lot Lease Reassignment and 4 DM 114555604.5 Termination Agreement with respect to the Phase II Land, the form of which is set forth in Exhibit A-3 attached hereto, all in consideration of Elgin's release of any and all claims against the Land Trustee and/or First American Bank arising out of or relating to the alleged failure to perform the obligations under the Development Agreement or any other claims against Elgin arising from the Lawsuit as further set forth in Section 12 hereof. 4. Release of Senior Mortgage. On or before the Closing Date, First American Bank shall execute and deliver to Elgin a Partial Release of the Senior Mortgage, fully releasing the Senior Mortgage from the Phase II Land, the form of which Partial Release of Mortgage is set forth in Exhibit B attached hereto. 5. Termination of Subordinated Mortgage. On or before the Closing Date, Elgin shall execute and deliver to First American a Satisfaction and Release of the Subordinated Mortgage,the form of which Satisfaction and Release is set forth in Exhibit C attached hereto. 6. Termination of Development Agreement. On or before the Closing Date, the Parties shall execute and deliver to each other a mutual Release and Termination of the Development Agreement, the form of which Release and Termination is set forth in Exhibit D attached hereto. 7. Second Amendment to Fountain Square Operating Agreement. On or before the Closing Date, the Parties shall execute and deliver to each other a Second Amendment to Fountain Square Operating Agreement, the form of which Second Amendment to Fountain Square Operating Agreement is set forth in Exhibit E attached hereto. 8. Relinquishment of Certain Rights Under Fountain Square Condominium Declaration. On or before the Closing Date, Elgin shall execute and deliver to First American a joinder to a First Amendment of the Fountain Square Condominium Declaration, the form of 5 DM 1\4555604.5 which Amendment of the Fountain Square Condominium Declaration is set forth in Exhibit F attached hereto. 9. Declaration of Covenants and Restrictions affecting Development of Phase H Land. On or before the Closing Date, Elgin shall execute and deliver to First American a Declaration of Covenants and Restrictions affecting future development of the Phase I1 Land, the form of the Declaration of Covenants and Restrictions is set forth in Exhibit G attached hereto. 10. Leased Condominium Units. Elgin covenants and agrees not to contest or object to the percentage of condominium units leased in Phase I of the Fountain Square on the River Project. 11. Dismissal. Within three (3) business days of satisfaction of the parties' obligations under Sections 2 through 9 of this Settlement Agreement, the parties shall execute a joint stipulation of voluntary dismissal with prejudice of the Lawsuit in the form attached hereto as Exhibit H. The Parties shall cooperate in all respects with each other to have the Lawsuit dismissed with prejudice and to obtain an order from the Court confirming such dismissal. The Parties agree that each party shall bear its own costs, attorneys' fees, and other expenses incurred in connection with the Lawsuit. 12. General Mutual Releases. Immediately upon satisfaction of the parties' obligations under Sections 2 through 9 of this Settlement Agreement, First American, for itself and its parents, subsidiaries, affiliates, predecessors, successors, assigns, directors, officers, trust officers, employees, shareholders, agents and representatives does hereby fully release and discharge Elgin and its parents, subsidiaries, affiliates, predecessors, successors, assigns, directors, officers, officials, employees, former employees, shareholders, agents, 6 DM 1 44 5 5 5 604.5 representatives, and attorneys of and from any and all claims, demands, liens, obligations, actions, causes of action, damages, liabilities, balances, money owed, losses, costs, or expenses, of any nature whatsoever, whether known or unknown arising at any time, or arising out of and/or relating to any acts or omissions that occurred, prior to the Effective Date relating to or arising out of any of the matters referenced in or concerning the Development Agreement and/or the Lawsuit. Immediately upon satisfaction of the parties' obligations under Sections 2 through 9 of this Settlement Agreement, Elgin, for itself and its parents, subsidiaries, affiliates, predecessors, successors, assigns, directors, officers, officials, employees, shareholders, agents and representatives does hereby fully release and discharge First American and its parents, subsidiaries, affiliates, predecessors, successors, assigns (including transferees of condominium units in the condominium building constructed on the Phase I land), directors, officers, trust officers, employees, former employees, shareholders, agents,representatives, and attorneys of and from any and all claims, demands, liens, obligations, actions,causes of action, damages, liabilities, balances, money owed, losses, costs, or expenses, of any nature whatsoever, whether known or unknown arising at any time, or arising out of and/or relating to any acts or omissions that occurred, prior to the Effective Date relating to or arising out of any of the matters referenced in or concerning the Development Agreement and/or the Lawsuit. Notwithstanding the foregoing releases, neither First American nor Elgin release any claims or demands arising out of a breach and/or the enforcement of this Settlement Agreement. 13. Covenant Not to Sue. The Parties agree that they will never sue, institute, or cause to be instituted any proceeding of any nature whatsoever (including, but not limited to, 7 DM 1\4555604.5 litigation or arbitration) against each other for any claim, controversy, action, cause of action, or demand released in Section 12 hereof. 14. No Admission of Liability. The Parties agree and acknowledge that this Settlement Agreement is a compromise of a disputed claim(s) and shall not at any time for any purpose be considered as an admission of the truth or correctness of any allegations, assertions, arguments, or representations by any Party, or of fault or liability on the part of any of the Parties, who have at all times denied and continue to deny any liability, and intend only through this Settlement Agreement to settle a disputed claim. 15. No Assignment or Transfer of Rights. Each Party to this Settlement Agreement acknowledges, represents, and warrants that it is the sole owner of the claims, causes of action, and/or counterclaims that are the subject of the Settlement Agreement, and it has not conveyed or assigned any interest in any such claim, cause of action, or counterclaim to any person or entity not a party hereto, and no persons or entities, other than the parties to this Settlement Agreement, are necessary to fully release all claims, causes of action, and/or counterclaims arising out of the transactions and occurrences that are the subject of the Lawsuit. 16. Effect of Agreement. This Settlement Agreement shall be final and binding upon the Parties, their representatives, agents, successors, heirs, beneficiaries, and assigns (including transferees of condominium units in the condominium building constructed on the Phase I land), and no change or revision to this Settlement Agreement, whether by addition, deletion, waiver, amendment, or modification shall be valid unless it is made in writing and signed by all Parties. 8 DM I X4555604.5 17. Severability. If any provision of this Settlement Agreement or the application thereof is held invalid, it is the intention of the parties that the invalidity shall not affect other provisions or applications of the Settlement Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of this Settlement Agreement are declared and understood to be severable. 18. Governing Law. This Settlement Agreement shall be construed under, governed by, and enforced under the laws of the State of Illinois without regard to conflicts of law principles. 19. Non-Reliance and Representation by Counsel. Each of the Parties represents and warrants that it has exercised its independent judgment in deciding to execute this Settlement Agreement and that its decision to do so is not predicated or influenced by any written or oral declarations or representations of any other person or Party except as expressly stated in this Settlement Agreement. Each Party further represents and warrants that it has consulted with legal counsel and has executed this Settlement Agreement voluntarily with full knowledge of its significance and legal effect. Each Party has cooperated in the drafting and preparation of this Settlement Agreement. Hence, in any construction or interpretation of this Settlement Agreement, the same shall not be construed against any Party on the basis that the Party was the drafter. 20. Counterparts. This Settlement Agreement may be executed in multiple counter-parts, each of which shall be an original, and all of which shall constitute one and the same instrument. Facsimile-copy and electronic mail (e-mail) copy signatures shall have the same effect as original signatures. 9 DM 114 5 5 5604.5 21. Exculpation. Exoneration provision restricting any liability of First American as Land Trustee is attached hereto and expressly made a part hereof. 22. Phase II Land Title Matters. First American covenants and agrees with Elgin not to cause any liens, encumbrances or adverse claims to affect the Phase II Land between the June 26, 2014 effective date of the title commitment issued by Chicago Title Insurance Company (order no. 1410 008947893, the "Title Commitment") and the Closing Date. First American shall also execute and deliver to Chicago Title Insurance Company at the closing of the conveyance of the Phase II Land an ALTA Statement and Personal ("GAP")undertaking to allow Chicago Title Insurance Company to issue an owner's policy of title to the City for the Phase II Land with extended coverage over the general exceptions (provided that Elgin provides a survey acceptable to Chicago Title Insurance Company for removal of the general exception related to survey matters). First American shall also execute and deliver to Chicago Title Insurance Company at the closing of the conveyance of the Phase II Land a personal undertaking in a form provided by Chicago Title Insurance Company regarding exception H(#16) in the Title Commitment relating to a judgment entered in case number 08AR163, a memorandum or copy of which was recorded July 16, 2009 as Document No. 2009K054168, in favor of Herbert Garcia against RSC Elgin, LLC in the amount of$20,892.32 so as to allow Chicago Title Insurance Company to waive or insure over exception H(#16) from Schedule B of the Title Commitment. The remainder of this Page 10 is intentionally left blank; Signatures of the Parties appear on the following Page IL 10 DM 1\4555604.5 IN WITNESS WHEREOF, this Settlement Agreement has been executed this Iq 4, day of August, 2014. FIRST AMERICAN BANK, an Illinois CITY OF ELGIN, an Illinois municipal banking as ociation corporation By: By: John Olsen David Kaptain, Mayor Its: Executive Vice President Its: Kimberly Dewis, City Clerk FIRST AMERICAN BANK, solely as Trustee under the provisions of the Trust Agreement dated 19th of August 2009 and known as Trust Number 1-09-124 and not persona y B - I John . "at aak Exoneration provision restricting any liability of First American Bank attached hereto is expressly made a part hereof. 11 DM 1\4555604.5 IN WITNESS WHEREOF, this Settlement Agreement has been executed this\16 day of August,2014. FIRST AMERICAN BANK, an Illinois CITY OF ELGIN,an Illinois municipal banking association corporation By: By: John Olsen David Ka p in, Nfayor Its: Executive Vice President It Kimberly De s, City Clerk FIRST AMERICAN BANK, solely as Trustee under the provisions of the Trust Agreement dated 19th of August 2009 and known as Trust Number 1-09-124 and not personally By: Its: I1 DM1\4555604.5 Exculpation of Trustee It is expressly understood and agreed by and between the parties hereto, anything herein to the contrary notwithstanding,that each and all of the warranties, indemnities,representations, covenants,undertakings and agreements herein made on the part of the Trustee,while in form purporting to be the warranties,indemnities, representations,covenants,undertakings and agreements of First American Bank as said Trustee,are nevertheless each and every one of them,made and intended not as personal warranties, indemnities, representations, covenants, undertakings and agreements by First American Bank or any of its directors, officers, employees, or shareholders or for the purpose or with the intention of binding First American Bank or any of its directors,officers, employees,or shareholders personally but are made and intended for the purpose of binding only that portion of the trust property specifically described herein,and this instrument is executed and delivered by First American Bank not in its own right, but solely in the exercise of the powers conferred upon it as such Trustee,and no personal liability or personal responsibility is assumed by nor shall at any time be asserted or enforceable by any person against First American Bank or any of its directors,officers,employees,or shareholders on account of this instrument or on account of any warranty,indemnity,representation, covenant, undertaking or agreement of the Trustee in this instrument, all such personal liability, if any, being expressly waived and released and any recovery therefor being limited to the property hereby conveyed and the enforcement of remedies under the documents and instruments creating, securing, or otherwise governing the obligations secured by this instrument;provided however,this clause shall not impair the enforceability or adversely affect the availability of any rights that may otherwise be available to Mortgagee or the obligations of any co-signer, endorser, or guarantor of the obligations secured by this instrument; and provided further, that the foregoing limitations on personal liability shall not impair the validity of the indebtedness secured by Mortgagee's collateral or the lien or security interest on the collateral or the right of Mortgagee as mortgagee or secured party to foreclose and/or enforce rights against the collateral after default by the Mortgagor. Subject to the foregoing, the warranties, indemnities, representations, covenants, undertakings and agreements herein made on the part of the Trustee are made for the sole benefit of Mortgagee, and no other person or persons, other that Mortgagee's successors or permitted assigns,shall have any benefits,rights,or remedies by reason of such warranties, indemnities, representations, covenants, undertakings and agreements herein made on the part of the Trustee. Nothing herein shall be deemed to be a waiver of any right which Mortgagee may have under sections 506(a),506(b), 1111(b)or any other provision of the Bankruptcy Reform Act of 1978,as at any time amended or reinstated, to file a claim for the full amount of the debt owing to Mortgagee in the event Mortgagor or its beneficiary should become the subject of a petition for bankruptcy or reorganization or to require that all collateral shall continue to secure all of the indebtedness owing to Mortgagee in accordance with the docurnents and instruments creating,securing,or otherwise governing the obligations secured by this instrument. EXHIBIT A-1 (Legal Description of Phase II Land) Lots 1, 2, 3, 4, 5, and 6 and part of Lot 10 of B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River; Lots 1, 2, and part of Lot 3 of McOsker's Subdivision of Lots 7, 8, 9, 10, and 10-1/2 of B.W. Raymond's Subdivision of Lot 1 in Block 21 of the Original Town of Elgin,and that portion of land lying between Lot 9 and Fox River; also part of the vacated alley lying on the southerly portion of said McOsker's Subdivision; also part of Lot 2 in Block 21 of the Original Town of Elgin, on the east side of Fox River, all of the foregoing being described as a tract as follows: Beginning at a point in the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid, 95 feet southwesterly, measured along said southerly line, from the westerly line extended of Lot 4 of B.W. Raymond's Subdivision; thence northwesterly, parallel with said westerly line extended of said Lot 4, a distance of 42 feet; thence northwesterly to a point on the westerly line of Lot 2 of McOsker's Subdivision, 105 feet northwesterly from the southwesterly corner thereof, thence northwesterly along the westerly line of Lot 2 of McOsker's Subdivision to the northwesterly corner thereof and the south line of Chicago Street; thence east along said south line of Chicago Street to the westerly line of Grove Avenue; thence southeasterly along said westerly line of Grove Avenue to the southeast corner of Lot 2 in Block 21 aforesaid; thence westerly along the southerly line of said Lot 2 to the easterly line of Riverside Avenue; thence northerly along said easterly line to the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid; thence northeasterly along said southerly line to the Point of Beginning, in the City of Elgin, Kane County, Illinois. Lot 11 and that part of Lot 28 lying easterly of the easterly line of Riverside Avenue and that part of the vacated alley lying between said Lots I1 and 28, all in B.W. Raymond's Subdivision of Lots 1, 3, 4,and 5 of Block 21 of the Original Town of Elgin,on the east side of Fox River, in the City of Elgin,Kane County, Illinois. That part of Lots 12 and 27 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River, and the vacated alley lying between said Lots 12 and 27, lying between the westerly line of South Grove Avenue and the easterly line of Riverside Avenue, in the City of Elgin, Kane County, Illinois. Lots 13, 14, 15, 16, 23, 24, 25, and 26 and the vacated 20-foot alley adjoining said lots in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin,on the east side of Fox River, in the City of Elgin,Kane County, Illinois. That part of Lots 17, 18, and 22 lying northwesterly of the face of the Fountain Square on the River Condominium concrete retaining wall and building(except that part of said lots, if any, falling within Riverside Avenue) of B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River in the East Fraction of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal 12 DMI14555604.5 Meridian; also, all that part of an alley 20 feet wide (now vacated) in said subdivision, which lies between said Lots 22 and 17 and south of the north line of said lots extended across said alley, all in the City of Elgin, Kane County, Illinois, described as follows: Beginning at the northwesterly corner of said Lot 22; thence on an assumed bearing of North 56 degrees 29 minutes 55 seconds East, 182.27 feet along the northwesterly line of said Lots 22 and 17 and the extension thereof through the vacated alley between said Lots 22 and 17 to the northeast corner of said Lot 17; thence South 33 degrees 29 minutes 00 seconds East, 36.76 feet along the northeasterly line of Lots 17 and 18 to the northeasterly extension of the northerly building line of the Fountain Square on the River Condominium; thence along said extension and the northerly building and retaining wall line the following seven courses: South 56 degrees 32 minutes 12 seconds West, 37.65 feet; thence North 33 degrees 52 minutes 15 seconds West, 10.99 feet; thence South 56 degrees 36 minutes 04 seconds West, 25.88 feet; thence North 33 degrees 13 minutes 30 seconds West, 9.91 feet; thence South 59 degrees 00 minutes 42 seconds West, 0.80 feet; thence South 30 degrees 20 minutes 44 seconds East, 1.02 feet; thence South 56 degrees 32 minutes 42 seconds West, 118.07 feet to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67' along said southwesterly line to the Point of Beginning. That part of Riverside Avenue in the East Half of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal Meridian in the City of Elgin, Kane County, Illinois, described as follows: Beginning at the southwesterly corner of Lot 23 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River; thence on an assumed bearing of North 32 degrees 47 minutes 16 seconds West, 165.19 feet along the northeasterly right-of-way of Riverside Avenue; thence continuing along said right- of-way the following four courses: North 56 degrees 31 minutes 00 seconds East, 5.27 feet; thence North 33 degrees 29 minutes 00 seconds West, 42.00 feet; thence North 27 degrees 23 minutes 16 seconds West, 103.59 feet; thence North 33 degrees 29 minutes 00 seconds West, 23.16 feet; thence South 66 degrees 09 minutes 03 seconds West, 1.72 feet along the southwesterly extension of the southerly line of Chicago Street; thence South 25 degrees 19 minutes 30 seconds East, 128.97 feet to a line 184.00 feet southwesterly of and parallel with the southwesterly line of South Grove Avenue; thence South 33 degrees 29 minutes 00 seconds Last, 222.64 feet along said parallel line to the northerly face of the Fountain Square on the River Condominium concrete retaining wall; thence North 56 degrees 32 minutes 42 seconds East, 1.53 feet along said retaining wall to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67 feet along said southwesterly line to the Point of Beginning. 13 DM l\4555604.5 t � r � C ' TRUSTEE'S DEED (TO CORPORATION) THIS INDENTURE, made this Nit, day of August,2014,between FIRST AMERICAN BANK,218 West Main Street,Dundee,Illinois 60118,an Illinois Banking Corporation,as Trustee under the provisions of a deed or deeds in trust,duly recorded or registered and delivered to said Bank in pursuance of a Trust Agreement dated the 19th day of August, 2009, and known as Trust No. 1-09-124, party of the first part, and THE CITY OF ELGIN, an Illinois municipal corporation, of 150 Dexter Ct.,Elgin,Illinois 60120,party of the second part. WITNESSETH,that said party of the first part,in consideration of the sum of Ten and no/100 dollars($10.00),and the other good and valuable considerations in hand paid,does hereby grant,sell,convey and quitclaim unto said party of the second part, all of its right, title and interest, if any, in the following described real estate, situated in Kane County, Illinois,to wit: See Legal Description of the Real Estate on Exhibit"A" attached hereto and made a part hereof Permanent Index Numbers: 06-14-433-038; 06-14-433-039; 06-14-433-013 06-14-433-014; 06-14433-045; 06-14-433-046 Commonly known as: Part of 38-50 South Grove Avenue, Elgin, IL 60120 Exempt under provisions of Section 31-45,Paragraph Real Estate Transfer Tax Act(35 ILCS 200/31-45) Date Buye)lleller or Representative The Trustee,party of the first part,does hereby further except and exclude from such conveyance and reserve unto itself and its successors and assigns, including successor owners of condominiums forming a part of the"Fountain Square on the River" condominium building situated on land southerly and adjacent to the Real Estate hereby conveyed,a non-exclusive temporary easement and right over,under,across,in and upon the southerly portion of the Real Estate hereby conveyed which is within twenty (20) feet of the adjacent condominium building to repair, maintain,replace,rebuild and remove all or any portion of the foundation,pylons and vertical and lateral support of the condominium building,provided,however,that the forgoing non-exclusive temporary easement shall remain in effect only so long as such twenty (20) foot southerly portion of the Real Estate hereby conveyed remains undeveloped with a structure. The temporary easement provided for herein shall automatically terminate and be null and void upon the City of Elgin's approval of the construction of a structure within such twenty(20)foot portion of 1 DM 1\-4569323.4 the Real Estate. The City of Elgin or its successors or assigns with respect to the Real Estate shall also have the right to execute and record an instrument terminating the temporary easement provided for herein upon the City of Elgin's approval of the construction of a structure within such twenty(20)foot portion of the Real Estate. The Real Estate conveyed by this Trustee's Deed is conveyed SUBJECT TO: (a) all zoning laws, statutes and ordinances,(b)general real estate taxes for the years 2013(second installment)and subsequent years not yet due and payable; (c) all recorded covenants, conditions, restrictions and easements, (d) the Parking Easement Agreement between the City of Elgin,a municipal corporation,and PanCor Construction and Development,L.L.C.,an Illinois limited liability company, dated September 23, 1998 and recorded in the Office of the Kane County Recorder on November 3, 1998 as Document Number 98KI01679 and as assigned by PanCor Construction and Development, L.L.C., an Illinois limited liability company, to Corus Bank, N.A., not personally, but as Trustee under Trust Agreement dated October 23, 1998 and known as Trust No.4347 pursuant to that certain the Assignment of Parking Easement Rights dated October 28, 1998 and recorded in the Office of the Kane County Recorder on November 3, 1998 as Document Number 98K101678; and(e)the Declaration of Covenants and Restrictions dated August_, 2014 made by First American Bank, not individually or personally, but solely as Trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124, as Declarant, recorded on or about the date of recording of this Trustee's Deed. Together with the tenements and appurtenances thereunto belonging. TO HAVE AND TO HOLD the same said party of the second part,and to the proper use,benefit and behoof forever of said party of the second part. This deed is executed by the party of the first part, as Trustee, as aforesaid, pursuant to and in the exercise of the power and authority granted to and vested in it by terms of said Deed or Deeds in Trust and the provisions of said Trust Agreement above mentioned,and of every other power and authority thereunto enabling. Nothing in this Deed shall be construed as creating or otherwise affecting any liability or duty on the part of the Trustee with respect to any Environmental Law,including,without limitation,the Comprehensive Environmental Response,Compensation and Liability Act (42 U.S.C. 9601 et. seq.) or the Illinois Environmental Protection Act (111. Rev. Stat. ch. 111-1/2, Paragraph 1001 et. seq.) [signatures contained on following page] 2 DM 1\4569323.4 IN WITNESS WHEREOF, said party of the first part has caused its corporate seal to be hereto affixed, and has caused its name to be signed to these presents by its Vice President and attested by its Vice President the day and year first above written. FIRST AMERICAN BANK, As Trustee as aforesai BY: o n T.MateJeak e Pre den ice s Lm rust Officer ATTEST: osanne .DuPass VVice President Meer STATE OF ILLINOIS COUNTY OF OW6 SS. 1, they T�&W6ka Notary Public in and for said County, yt � 6 laid, DO HEREBY CERTIFY,THAT Vice President-Trusbj)"Pirst American Bank and Vice President-Trust Offiofrsaid Bank,personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Vice President and Vice President respectively,appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act of said Bank,for the uses and purposes therein set forth;and the said Vice President did also then and there acknowledge that said Vice President as custodian of the corporate seal of said Bank,did affix the said corporate seal of said Bank to said instrument as said Vice President's own free and voluntary act, and as the free and voluntary act of said Bank, for the uses an OFFICIAL SEAL Give un er my and and Notarial Seal this 143% day of August, 2014. ILENE SI KAYE NOTARY PUBLIC-STATE OF ILLINOIS MY COMMISSION EXPIRES:01/28115 I -( f -------- -------I Notary Public THIS INSTRUMENT PREPARED BY: R��TE First American Bank TRANSFER STAMP 218 West Main Street 60761 Dundee,Illinois 60018 AFTER RECORDING,PLEASE RETURN TO: William A. Cogley, Esq. City of Elgin—Legal Department 150 Dexter Court Elgin, Illinois 60120-5555 SEND SUBSEQUENT TAX BILLS TO: City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 3 DM 1\4569323.4 EXHIBIT"A" Legal Description of Real Estate Lots 1,2, 3,4, 5, and 6 and part of Lot 10 of B.W. Raymond's Subdivision of Lots 1,3,4,and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River; Lots 1, 2, and part of Lot 3 of McOsker's Subdivision of Lots 7,8,9, 10,and 10-1/2 of B.W.Raymond's Subdivision of Lot 1 in Block 21 of the Original Town of Elgin,and that portion of land lying between Lot 9 and Fox River;also part of the vacated alley lying on the southerly portion of said McOsker's Subdivision; also part of Lot 2 in Block 21 of the Original Town of Elgin,on the east side of Fox River,all of the foregoing being described as a tract as follows: Beginning at a point in the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid,95 feet southwesterly,measured along said southerly line,from the westerly line extended of Lot 4 of B.W.Raymond's Subdivision; thence northwesterly,parallel with said westerly line extended of said Lot 4, a distance of 42 feet; thence northwesterly to a point on the westerly line of Lot 2 of McOsker's Subdivision, 105 feet northwesterly from the southwesterly corner thereof;thence northwesterly along the westerly line of Lot 2 of McOsker's Subdivision to the northwesterly corner thereof and the south line of Chicago Street; thence east along said south line of Chicago Street to the westerly line of Grove Avenue; thence southeasterly along said westerly line of Grove Avenue to the southeast corner of Lot 2 in Block 21 aforesaid; thence westerly along the southerly line of said Lot 2 to the easterly line of Riverside Avenue; thence northerly along said easterly line to the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid; thence northeasterly along said southerly line to the Point of Beginning, in the City of Elgin, Kane County, Illinois. Lot 11 and that part of Lot 28 lying easterly of the easterly line of Riverside Avenue and that part of the vacated alley lying between said Lots 11 and 28,all in B.W.Raymond's Subdivision of Lots 1,3,4,and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River, in the City of Elgin, Kane County, Illinois. That part of Lots 12 and 27 in B.W.Raymond's Subdivision of Lots 1,3,4,and 5 in Block 21 of the Original Town of Elgin,on the east side of Fox River,and the vacated alley lying between said Lots 12 and 27, lying between the westerly line of South Grove Avenue and the easterly line of Riverside Avenue,in the City of Elgin, Kane County, Illinois. Lots 13, 14, 15, 16, 23, 24, 25, and 26 and the vacated 20-foot alley adjoining said lots in B.W. Raymond's Subdivision of Lots 1,3,4,and 5 in Block 21 of the Original Town of Elgin,on the east side of Fox River, in the City of Elgin, Kane County, Illinois. That part of Lots 17, 18,and 22 lying northwesterly of the face of the Fountain Square on the River Condominium concrete retaining wall and building (except that part of said lots, if any, falling within Riverside Avenue)of B.W.Raymond's Subdivision of Lots 1,3,4,and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River in the East Fraction of the Southeast Quarter of Section 14, 4 DM 1\4569323.4 Township 41 North, Range 8 East of the Third Principal Meridian; also, all that part of an alley 20 feet wide(now vacated)in said subdivision,which lies between said Lots 22 and 17 and south of the north line of said lots extended across said alley,all in the City of Elgin,Kane County,Illinois,described as follows: Beginning at the northwesterly corner of said Lot 22; thence on an assumed bearing of North 56 degrees 29 minutes 55 seconds East, 182.27 feet along the northwesterly line of said Lots 22 and 17 and the extension thereof through the vacated alley between said Lots 22 and 17 to the northeast corner of said Lot 17;thence South 33 degrees 29 minutes 00 seconds East,36.76 feet along the northeasterly line of Lots 17 and 18 to the northeasterly extension of the northerly building line of the Fountain Square on the River Condominium;thence along said extension and the northerly building and retaining wall line the following seven courses: South 56 degrees 32 minutes 12 seconds West, 37.65 feet; thence North 33 degrees 52 minutes 15 seconds West, 10.99 feet; thence South 56 degrees 36 minutes 04 seconds West, 25.88 feet; thence North 33 degrees 13 minutes 30 seconds West, 9.91 feet; thence South 59 degrees 00 minutes 42 seconds West,0.80 feet; thence South 30 degrees 20 minutes 44 seconds East, 1.02 feet;thence South 56 degrees 32 minutes 42 seconds West, 118.07 feet to the southwesterly line of said Lot 22;thence North 32 degrees 47 minutes 16 seconds West, 16.67' along said southwesterly line to the Point of Beginning. That part of Riverside Avenue in the East Half of the Southeast Quarter of Section 14,Township 41 North,Range 8 East of the Third Principal Meridian in the City of Elgin, Kane County,Illinois,described as follows: Beginning at the southwesterly corner of Lot 23 in B.W.Raymond's Subdivision of Lots 1,3,4,and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River; thence on an assumed bearing of North 32 degrees 47 minutes 16 seconds West, 165.19 feet along the northeasterly right-of-way of Riverside Avenue;thence continuing along said right-of-way the following four courses: North 56 degrees 31 minutes 00 seconds East, 5.27 feet; thence North 33 degrees 29 minutes 00 seconds West,42.00 feet; thence North 27 degrees 23 minutes 16 seconds West, 103.59 feet;thence North 33 degrees 29 minutes 00 seconds West, 23.16 feet; thence South 66 degrees 09 minutes 03 seconds West, 1.72 feet along the southwesterly extension of the southerly line of Chicago Street; thence South 25 degrees 19 minutes 30 seconds East, 128.97 feet to a line 184.00 feet southwesterly of and parallel with the southwesterly line of South Grove Avenue;thence South 33 degrees 29 minutes 00 seconds East,222.64 feet along said parallel line to the northerly face of the Fountain Square on the River Condominium concrete retaining wall;thence North 56 degrees 32 minutes 42 seconds East, 1.53 feet along said retaining wall to the southwesterly line of said Lot 22;thence North 32 degrees 47 minutes 16 seconds West, 16.67 feet along said southwesterly line to the Point of Beginning. 5 DM 1\1569323.4 PLAT ACT AFFIDAVIT - METES AND BOUNDS DESCRIPTION STATE OF ILLINOIS ) ) SS COUNTY OF KANE ) John T Mateleak Rosanne M. DuPass Vice President-Trust Officer Vice President-Trust Offi er. and ,cbeing duly sworn on oath, states that they reside or are employed at First American Bank, 218 West Main Street, Dundee, IL 60118; And further state that: (please check the appropriate box) A. [ ] That the attached deed is not in violation of 765 ILCS 205/1(a), in that the sale or exchange is of an entire tract of land not being a part of a larger tract of land; or B. [ X ] That the attached deed is not in violation of 765 II,CS 205/1(b)for one of the following reasons: (please circle the appropriate number) 1. The division or subdivision of land into parcels or tracts of 5 acres or more in size which does not involve jKly new streets or easements of access; 2. . The division of lots or blocks of less than I acre in any recorded subdivision which does not involve any streets or easements of access; 3. The sale or exchange of parcels of land between owners of adjoining and contiguous land; 4. The conveyance of parcels of land or interests-therein for use as right of way for railroads or other public utility facilities and other pipe lines which does not involve any new streets or easements of access; 5. The conveyance of land owned by a railroad or other public utility which does not involve any new streets or easements of access; 6. The conveyance of land for highway or other public purposes or grants or conveyances relating to the dedication of land for public use or instruments relating to the vacation of land impressed with a public use; 7. Conveyances made to correct descriptions in prior conveyances; 8. The sale or exchange of parcels or tracts of land following the division into no more than 2 parts of a particular parcel or tract of land existing on July 17, 1959 and not involving any new streets or easements of access; 9. The sale is of a single lot of less than 5 acres from a larger tract when a survey is made by an Illinois Registered Land Surveyor,provided,that this exemption shall not apply to the sale of any subsequent lots from the same larger tract of land, as determined by the dimensions and configuration of the larger tract on October 1, 1973, and provided also that this exemption does not invalidate any local requirements applicable to the subdivision of land. CANRPortbl\DM 1\SAB 150\4555294 I.docx AFFIANT further states that he makes this affidavit for the purpose of inducing the Recorder of Kane County, Illinois,to accept the attached deed for recording. FIRST AMERICAN BANK, not individually or personally, but solely as trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 By: Na e: Title: President-Trust officer i '' Rosanne .DuPass Name: „+_ Trost Of fear Title: STATE OF ILLINOIS j SS E HotpRy CO Y OF CORpORpy t0 SSE��!H��HERE I, the dersigned, a Notary Public in, and forM001n y and State afores ' O HEREBY CER Y THAT as and as of FIRST AMERICAN BANK, t individually or personally, but solely Trustee under the provisions of a Trust grebMent dated August 19, 2009 and wn as Trust Number 1- 09-124 who are personally wn to me to be the same'persons whose names are subscribed to the foregoing inst ent, appeared bore me this day in person and acknowledged to me that they signe nd delivewd the said instrument in their capacity as trust officers of said Trust, as their o ee and voluntary act, and as the free and voluntary act of said Trust as aforesaid, f t uses and purposes therein set forth. i Given under my hand and official seal this of August, 2014. Notary Public My Commission Expires: C:\NRPortbl\DMI\SABI50\4555294-I.docx STATE OF ILLINOIS ) SS: COUNTY OF KANE ) I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY THAT JOHN T. MATEJCAK, personally known to me to be a Vice President of First American Bank,an Illinois banking corporation,and ROSANNE M.DUPASS,personallyknown to me to be a Vice President of First American Bank, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as Vice Presidents of said corporation they signed the foregoing instrument of their own free and voluntary act and caused the corporate seal of said corporation to be affixed thereto, pursuant to authority, given by the Board of Directors of said corporation as their free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal, this 14th day of August, 2014. a 1 RZO AL YE OF ILLINOIS ES:01/28/15 Notary Public EXHIBIT A-3 (Form of Parking Lot Lease Reassignment and Termination Agreement-Phase II Land) 15 DMIA555604.5 This Instrument Prepared By, and After Recording,Please Return To: David B. Yelin, Esq. Duane Morris LLP 190 South LaSalle, Ste. 3700 Chicago, IL 60603 PARKING LOT LEASE REASSIGNMENT AND TERMINATION AGREEMENT THIS PARKING LOT LEASE REASSIGNMENT AND TERMINATION AGREEMENT (this "Agreement") is dated as of the\2)day of August, 2014 (the "Effective Date"), by and between FIRST AMERICAN BANK, not individually or personally, but solely as Trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 (hereinafter referred to as the "Trust") (successor-in-interest to RSC-Elgin, LLC, an Illinois limited liability company), and THE CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the"Ciff"). RECITALS A. The City is a party to that certain Parking Lot Lease with RSC-Elgin, LLC dated March 24, 2005, as amended by the Amendment to Parking Lot Lease dated March 3, 2009 (as so amended, the "Parking Lot Lease") with respect to the parking lot located at the southwest corner of Chicago Street and South Grove Avenue in Elgin, Illinois, and legally described on Exhibit A attached hereto (the"Premises"). The Trust is the successor-in-interest to RSC-Elgin, LLC in the Parking Lot Lease. B. The City is a party to that certain Assignment Agreement between the City and RSC-Elgin, LLC dated March 24, 2005 (the "Assignment Agreement") relating to the assignment of a certain Parking Easement Agreement between the City of Elgin, a municipal corporation, and PanCor Construction and Development, L.L.C., an Illinois limited liability company, dated September 23, 1998 and recorded in the Office of the Kane County Recorder on November 3, 1998 as Document Number 98K 10 1679 and as assigned by PanCor Construction and Development, L.L.C., an Illinois limited liability company, to Corus Bank, N.A., not personally, but as Trustee under Trust Agreement dated October 23, 1998 and known as Trust No. 4347 pursuant to that certain the Assignment of Parking Easement Rights dated October 28, 1998 and recorded in the Office of the Kane County Recorder on November 3, 1998 as Document Number 98KI01678 (the "Parking Easement Agreement"). The Trust is the successor-in-interest to RSC Elgin, LLC in the Assignment Agreement. 1 DM 1\4555305.4 C. The Trust desires to reassign the Parking Easement Agreement to the City and the City is willing to accept such reassignment of the Parking Easement Agreement and assume and perform the obligations thereunder,from and after the Effective Date. D. Contemporaneously with the reassignment of the Parking Easement Agreement to the City, the Trust and the City desire to terminate the Parking Lot Lease and the Assignment Agreement, subject to all of the terms, contingencies and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing and of the mutual agreement of the parties hereto to the terms and conditions set forth below, the parties, intending to be legally bound hereby, agree as follows: AGREEMENT 1. Assignment/Reassignment of Parking Easement Agreement. The Trust (as successor-in-interest to RSC Elgin, LLC) hereby assigns and reassigns to the City all of the Trust's rights and obligations in the Parking Easement Agreement. The City accepts such assignment and reassignment of the Parking Easement Agreement, and agrees to assume all of the rights and obligations provided for in the Parking Easement Agreement from and after the Effective Date. Effective as of the Effective Date, the City hereby releases and discharges the Trust from any and all duties and obligations under the Parking Easement Agreement. 2. Termination of Assignment Agreement and Parking Lot Lease. The Assignment Agreement and the Parking Lot Lease each is hereby terminated for all purposes effective as of 11:59 p.m. on the Effective Date. Effective as of 11:59 p.m. on the Effective Date, each of the parties is hereby released and discharged from any and all duties and obligations under the Assignment Agreement and the Parking Lot Lease. 3. Release of Liability. Effective as of the Effective Date, the Trust and the City shall and do hereby mutually release each other and their respective partners, members, managers, shareholders, officers, officials, directors, employees, representatives, agents, affiliates, heirs, executors, administrators, attorneys, successors and assigns, from any and all claims, damages, obligations, duties, liabilities, actions and causes of action, losses, costs and/or expenses of every kind and nature whatsoever arising under or in connection with the Assignment Agreement, the Parking Lot Lease and the Premises accruing on and after the Effective Date. Effective as of the Effective Date, this Agreement shall and does hereby constitute a mutual release with respect to the Assignment Agreement and the Parking Lot Lease executed in connection therewith as aforesaid and may be pleaded by either the Trust or the City as a full and complete defense to, and may be used by any of them as the basis for an injunction against any claims which may be instituted, prosecuted or maintained in breach of the foregoing release. The provisions of this Section are effective and applicable as of the Effective Date and are deemed to be self-operative, so that neither party shall have to execute any further documentation to evidence the provisions of this Section. Notwithstanding any provision of this Agreement to the contrary, except as specifically provided herein, neither party is being released from its obligations under this Agreement in any manner whatsoever, and, further, each party shall remain liable for the due performance of its respective obligations under the Assignment 2 DM 141555305.4 Agreement and the Parking Lot Lease accruing through the Effective Date, including, but not limited to, any indemnification obligations under the Assignment Agreement and the Parking Lot Lease for claims accruing on or prior to the Effective Date. 4. Counterparts. This Agreement may be executed in multiple counterparts or by email or facsimile transmissions, each of which shall be treated as an original of this Agreement for all purposes, and all of which shall constitute one (1) agreement binding upon all of the parties hereto, notwithstanding that all the parties are not signatory to the original or the same counterpart or email or facsimile transmission. Each such counterpart or email or facsimile transmission shall be admissible into evidence as an original hereof against the party who executed it. 5. Successors and Assigns. The terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 6. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the reassignment of the Parking Easement Agreement to the City and the termination of the Assignment Agreement and the Parking Lot Lease, and the terms of this Agreement are contractual and not merely recitals. This Agreement shall not be altered, amended, changed, waived, terminated or otherwise modified in any respect or particular, unless the same shall be in writing and signed by or on behalf of the party to be charged. Time is of the essence with respect to this Agreement and to the performance and satisfaction of its terms and conditions. The remainder of this page is intentionally left blank; The signatures of the parties are set forth on the followingpage 3 DMIW555305.4 IN WITNESS WHEREOF, the parties have caused this Parking Lot Lease Reassignment and Termination Agreement to be executed as of the date first set forth above. FIRST AMERICAN BANK, not individually or personally,but solely as Trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number -09-124 By: Mir ice President-Trust O ice resident Attes : Rosanne M. DuPass , Vice President Vice - cer THE CITY OF ELGIN, an Illinois municipal corporation By: Name: David Kaptain, Mayor By: Name: Kimberly Dewis, City Clerk 4 DM 1\4555305.3 IN WITNESS WHEREOF, the parties have caused this Parking Lot Lease Reassignment and Termination Agreement to be executed as of the date first set forth above. FIRST AMERICAN BANK, not individually or personally, but solely as Trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 By: Vice President Attest: Vice President THE CITY OF ELGIN, an IIlinois municipal corporation By: Name: avid K ptai , Ma r B Name: Kimberly Dewis, City C erk DM 1\4555305.4 4 STATE OF ILLINOIS ) COUNTY OF i5 ) SS I,the undersigned, a N% P &,k and for said County, in the state aforesaid, DO Hq eY"1�TIFY, THAT vice president-Trust Offlcebf the First American Bank and Vice President-T�s`,.f__ of said Bank, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Vice President and Vice President respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act of said Bank, for the uses and purposes therein set forth; and the said Vice President did also then and there acknowledge that said Vice President as custodian of the corporate seal of said Bank, did affix the said corporate seal of said Bank to said instrument as said Vice President's own free and voluntary act, and as the free and voluntary act of said Bank, for the uses and purposes therein set forth. GIVEN under my hand and Notari eal this Lqi day of August, 2014. OFFICIAL SEAL No ary Public IL SI KAYE NOTARY PUBLIC-STATE OF ILLINOIS _ MY COMMISSION EXPIRES:0112811M commission expires: n a8' IS STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) 1, , a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that David Kaptain, in his capacity as Mayor, and Kimberly Dewis, in her capacity as City Clerk, of THE CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument, as their free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and seal this day of August, 2014. NOTARY PUBLIC Commission Expires 5 DM]14555305.3 STATE OF ILLINOIS ) SS COUNTY OF ) I, the undersigned, a Notary Public in and for said County, in the state aforesaid, DO HEREBY CERTIFY,THAT of the First American Bank and of said Bank,personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Vice President and Vice President respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act of said Bank, for the uses and purposes therein set forth; and the said Vice President did also then and there acknowledge that said Vice President as custodian of the corporate seal of said Bank, did affix the said corporate seal of said Bank to said instrument as said Vice President's own free and voluntary act, and as the free and voluntary act of said Bank, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of August, 2014. Notary Public My commission expires: STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that David Kaptain, in his capacity as Mayor, and Kimberly Dewis, in her capacity as City Clerk, of THE CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument, as their free and voluntary act, and as the free and voluntary act of said corporation,for the uses and purposes therein set forth. GIVEN under my hand and seal thisYl day of August, 2014. B . MAN NOTARY PUBLIC LMY y Public,State of Illinois missi on Expires 08/06/15 Commission Expires 5 DM 114555305.4 EXHIBIT A Legal Description of Parking Lot Land Lots 1, 2, 3,4, 5, and 6 and part of Lot 10 of B.W. Raymond's Subdivision of Lots 1, 3,4, and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River; Lots 1, 2, and part of Lot 3 of McOsker's Subdivision of Lots 7, 8, 9, 10, and 10-1/2 of B.W. Raymond's Subdivision of Lot 1 in Block 21 of the Original Town of Elgin, and that portion of land lying between Lot 9 and Fox River; also part of the vacated alley lying on the southerly portion of said McOsker's Subdivision; also part of Lot 2 in Block 21 of the Original Town of Elgin, on the east side of Fox River, all of the foregoing being described as a tract as follows: Beginning at a point in the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid, 95 feet southwesterly, measured along said southerly line, from the westerly line extended of Lot 4 of B.W. Raymond's Subdivision; thence northwesterly, parallel with said westerly line extended of said Lot 4, a distance of 42 feet; thence northwesterly to a point on the westerly line of Lot 2 of McOsker's Subdivision, 105 feet northwesterly from the southwesterly corner thereof; thence northwesterly along the westerly line of Lot 2 of McOsker's Subdivision to the northwesterly corner thereof and the south line of Chicago Street; thence east along said south line of Chicago Street to the westerly line of Grove Avenue; thence southeasterly along said westerly line of Grove Avenue to the southeast corner of Lot 2 in Block 21 aforesaid; thence westerly along the southerly line of said Lot 2 to the easterly line of Riverside Avenue; thence northerly along said easterly line to the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid; thence northeasterly along said southerly line to the Point of Beginning, in the City of Elgin, Kane County, Illinois. Lot 11 and that part of Lot 28 lying easterly of the easterly line of Riverside Avenue and that part of the vacated alley lying between said Lots 11 and 28, all in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River, in the City of Elgin, Kane County, Illinois. That part of Lots 12 and 27 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River, and the vacated alley lying between said Lots 12 and 27, lying between the westerly line of South Grove Avenue and the easterly line of Riverside Avenue, in the City of Elgin, Kane County, Illinois. Lots 13, 14, 15, 16, 23, 24, 25, and 26 and the vacated 20-foot alley adjoining said lots in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River, in the City of Elgin, Kane County, Illinois. That part of Lots 17, 18, and 22 lying northwesterly of the face of the Fountain Square on the River Condominium concrete retaining wall and building(except that part of said lots, if any, falling within Riverside Avenue) of B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River in the East Fraction of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal 6 DM1\4555305.4 Meridian; also, all that part of an alley 20 feet wide (now vacated) in said subdivision, which lies between said Lots 22 and 17 and south of the north line of said lots extended across said alley, all in the City of Elgin, Kane County, Illinois, described as follows: Beginning at the northwesterly corner of said Lot 22; thence on an assumed bearing of North 56 degrees 29 minutes 55 seconds East, 182.27 feet along the northwesterly line of said Lots 22 and 17 and the extension thereof through the vacated alley between said Lots 22 and 17 to the northeast corner of said Lot 17; thence South 33 degrees 29 minutes 00 seconds East, 36.76 feet along the northeasterly line of Lots 17 and 18 to the northeasterly extension of the northerly building line of the Fountain Square on the River Condominium; thence along said extension and the northerly building and retaining wall line the following seven courses: South 56 degrees 32 minutes 12 seconds West, 37.65 feet; thence North 33 degrees 52 minutes 15 seconds West, 10.99 feet; thence South 56 degrees 36 minutes 04 seconds West, 25.88 feet; thence North 33 degrees 13 minutes 30 seconds West, 9.91 feet; thence South 59 degrees 00 minutes 42 seconds West, 0.80 feet; thence South 30 degrees 20 minutes 44 seconds East, 1.02 feet; thence South 56 degrees 32 minutes 42 seconds West, 118.07 feet to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67' along said southwesterly line to the Point of Beginning. That part of Riverside Avenue in the East Half of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal Meridian in the City of Elgin, Kane County, Illinois, described as follows: Beginning at the southwesterly corner of Lot 23 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River; thence on an assumed bearing of North 32 degrees 47 minutes 16 seconds West, 165.19 feet along the northeasterly right-of-way of Riverside Avenue; thence continuing along said right-of-way the following four courses: North 56 degrees 31 minutes 00 seconds East, 5.27 feet; thence North 33 degrees 29 minutes 00 seconds West, 42.00 feet; thence North 27 degrees 23 minutes 16 seconds West, 103.59 feet; thence North 33 degrees 29 minutes 00 seconds West, 23.16 feet; thence South 66 degrees 09 minutes 03 seconds West, 1.72 feet along the southwesterly extension of the southerly line of Chicago Street; thence South 25 degrees 19 minutes 30 seconds East, 128.97 feet to a line 184.00 feet southwesterly of and parallel with the southwesterly line of South Grove Avenue; thence South 33 degrees 29 minutes 00 seconds East, 222.64 feet along said parallel line to the northerly face of the Fountain Square on the River Condominium concrete retaining wall; thence North 56 degrees 32 minutes 42 seconds East, 1.53 feet along said retaining wall to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67 feet along said southwesterly line to the Point of Beginning. 7 DM 1\4555305.4 EXHIBIT B (Form of Partial Release of Senior Mortgage from Phase II Land) 16 DM 1\4555604.5 THIS INSTRUMENT WAS PREPARED BY AND MAIL AFTER RECORDING TO: David B. Yelin,Esq. Duane Morris LLP 190 So. LaSalle Street, Ste. 3700 Chicago, Illinois 60603 PARTIAL RELEASE OF MORTGAGE FIRST AMERICAN BANK, an Illinois banking corporation ("Mortgagee'), for and in consideration of the sum of One Dollar ($1.00), the receipt whereof is hereby acknowledged, does hereby REMISE, RELEASE, CONVEY, and QUIT CLAIM unto RSC-Elgin, LLC, an Illinois limited liability company ("RSC Erin") and unto First American Bank, an Illinois banking corporation, not personally but solely as Trustee under Trust Agreement dated August 19, 2009 and known as Trust No. 1-09-124 (successor-in-interest to RSC-Elgin) ("Borrower'), all the right, title, interest, claim or demand whatsoever Mortgagee may have acquired in, through or by the following loan documents (hereinafter collectively referred to as the "Loan Documents"), but only to the portion of the premises described in the Loan Documents which is shown on Exhibit A attached hereto and made a part hereof(such portion of the premises being referred to herein as the"Released Premises"): 1. Construction Mortgage,Assignment of Rents and Leases, Security Agreement and Fixture Financing Statement dated March 2,2006 and recorded April 12, 2006 as Document No. 2006KO39304 (the"Mortgage'). 2. Assignment of Rents and Leases dated March 2,2006 and recorded April 12, 2006 as Document No. 2006KO39305 and 3. First Amendment to Loan Documents dated April 17, 2006 and recorded May 11, 2006 as Document No. 2006K050615. This instrument is a partial release and shall fully release from the Loan Documents and from the Mortgage (and the other recorded instruments described above) only the portion of the premises described in the Mortgage (and the other recorded instruments described above) which is the Released Premises described on Exhibit A attached hereto and made a part hereof, and none other. The Loan Documents and the Mortgage (and the other recorded instruments described above) shall remain in full force and effect and unreleased as to the entire premises described in the Loan Documents and in the Mortgage (and the other recorded instruments described above), less and except only the Released Premises described on Exhibit A released hereby. 1 DM 1\4563671.4 IN WITNESS WHEREOF, this Partial Release of Mortgage is executed this y day of August, 2014. FIRST AMERICAN BANK , an Illinois banking corpor n By: Q 9 Name: axecutive hn Olsen Its: Vice President STATE OF ILLINOIS ) ) SS. COUNTY OF COOK ) a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that John Olsen personally known to me to be the Executive Vice President of FIRST AMERICAN BANK, an Illinois banking corporation, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that as such Executive Vice President, he signed and delivered the said instrument, pursuant to authority given by the Board of Directors of said corporation, as his free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and seal this J—t*day of August, 2014. OFF:Expires AL NOTA Y PUBLIC SUSof Notary Publ of Illinois C mission Expires My Commission Feb 28, 2016 2 DM 1\4563671.4 EXHIBIT A Legal Description of Released Premises Lots 1, 2, 3, 4, 5, and 6 and part of Lot 10 of B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River; Lots 1, 2, and part of Lot 3 of McOsker's Subdivision of Lots 7, 8, 9, 10, and 10-1/2 of B.W. Raymond's Subdivision of Lot 1 in Block 21 of the Original Town of Elgin, and that portion of land lying between Lot 9 and Fox River; also part of the vacated alley lying on the southerly portion of said McOsker's Subdivision;also part of Lot 2 in Block 21 of the Original Town of Elgin, on the east side of Fox River, all of the foregoing being described as a tract as follows: Beginning at a point in the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid, 95 feet southwesterly, measured along said southerly line, from the westerly line extended of Lot 4 of B.W. Raymond's Subdivision; thence northwesterly, parallel with said westerly line extended of said Lot 4, a distance of 42 feet; thence northwesterly to a point on the westerly line of Lot 2 of McOsker's Subdivision, 105 feet northwesterly from the southwesterly corner thereof; thence northwesterly along the westerly line of Lot 2 of McOsker's Subdivision to the northwesterly corner thereof and the south line of Chicago Street; thence east along said south line of Chicago Street to the westerly line of Grove Avenue;thence southeasterly along said westerly line of Grove Avenue to the southeast corner of Lot 2 in Block 21 aforesaid; thence westerly along the southerly line of said Lot 2 to the easterly line of Riverside Avenue; thence northerly along said easterly line to the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid; thence northeasterly along said southerly line to the Point of Beginning, in the City of Elgin, Kane County, Illinois. Lot 11 and that part of Lot 28 lying easterly of the easterly line of Riverside Avenue and that part of the vacated alley lying between said Lots I1 and 28, all in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River, in the City of Elgin, Kane County, Illinois. That part of Lots 12 and 27 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River, and the vacated alley lying between said Lots 12 and 27, lying between the westerly line of South Grove Avenue and the easterly line of Riverside Avenue, in the City of Elgin, Kane County, Illinois. Lots 13, 14, 15, 16, 23, 24, 25, and 26 and the vacated 20-foot alley adjoining said lots in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River, in the City of Elgin,Kane County, Illinois. That part of Lots 17, 18, and 22 lying northwesterly of the face of the Fountain Square on the River Condominium concrete retaining wall and building(except that part of said lots, if any, falling within Riverside Avenue) of B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River in the East Fraction of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal Meridian; also, all that part of an alley 20 feet wide (now vacated) in said subdivision,which lies between said Lots 22 and 17 and south of the north line of said lots extended across said alley, all in the City of Elgin, Kane County, Illinois, described as follows: 3 DM 1\4563671.4 Beginning at the northwesterly corner of said Lot 22; thence on an assumed bearing of North 56 degrees 29 minutes 55 seconds East, 182.27 feet along the northwesterly line of said Lots 22 and 17 and the extension thereof through the vacated alley between said Lots 22 and 17 to the northeast corner of said Lot 17; thence South 33 degrees 29 minutes 00 seconds East, 36.76 feet along the northeasterly line of Lots 17 and 18 to the northeasterly extension of the northerly building line of the Fountain on the Square River Condominium; thence along said extension and the northerly building and retaining wall line the following seven courses: South 56 degrees 32 minutes 12 seconds West, 37.65 feet; thence North 33 degrees 52 minutes 15 seconds West, 10.99 feet; thence South 56 degrees 36 minutes 04 seconds West, 25.88 feet; thence North 33 degrees 13 minutes 30 seconds West, 9.91 feet; thence South 59 degrees 00 minutes 42 seconds West, 0.80 feet; thence South 30 degrees 20 minutes 44 seconds East, 1.02 feet; thence South 56 degrees 32 minutes 42 seconds West, 118.07 feet to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67' along said southwesterly line to the Point of Beginning. That part of Riverside Avenue in the East Half of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal Meridian in the City of Elgin, Kane County, Illinois,described as follows: Beginning at the southwesterly corner of Lot 23 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River; thence on an assumed bearing of North 32 degrees 47 minutes 16 seconds West, 165.19 feet along the northeasterly right-of-way of Riverside Avenue; thence continuing along said right-of-way the following four courses: North 56 degrees 31 minutes 00 seconds East, 5.27 feet;thence North 33 degrees 29 minutes 00 seconds West, 42.00 feet; thence North 27 degrees 23 minutes 16 seconds West, 103.59 feet; thence North 33 degrees 29 minutes 00 seconds West, 23.16 feet; thence South 66 degrees 09 minutes 03 seconds West, 1.72 feet along the southwesterly extension of the southerly line of Chicago Street; thence South 25 degrees 19 minutes 30 seconds East, 128.97 feet to a line 184.00 feet southwesterly of and parallel with the southwesterly line of South Grove Avenue; thence South 33 degrees 29 minutes 00 seconds East, 222.64 feet along said parallel line to the northerly face of the Fountain Square on the River Condominium concrete retaining wall; thence North 56 degrees 32 minutes 42 seconds East, 1.53 feet along said retaining wall to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67 feet along said southwesterly line to the Point of Beginning. Permanent Tax Identification Nos.: 06-14-433-038 06-14-433-039 06-14-433-013 06-14-433-014 06-14-433-045 06-14-433-046 Common Address: Part of 38-50 South Grove Avenue, Elgin, IL 60120 4 DM 1\1563671.4 EXHIBIT C (Form of Satisfaction and Release of Subordinated Mortgage and Option Agreement) 17 DM114555604.5 THIS INSTRUMENT WAS PREPARED BY AND MAIL AFTER RECORDING TO: David B. Yelin, Esq. Duane Morris LLP 190 South LaSalle Street, Suite 3700 Chicago, Illinois 60603 SATISFACTION AND RELEASE OF SUBORDINATED MORTGAGE AND OPTION AGREEMENT THE CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation ("Subordinated Mortgagee"), for and in consideration of the sum of One Dollar ($1.00), the receipt whereof is hereby acknowledged, does hereby REMISE, RELEASE, CONVEY, and QUIT CLAIM unto First American Bank, not personally, but solely as Trustee under Trust Agreement dated August 19, 2009 and known as Trust No. 1-09-124 (successor-in-interest to RSC-ELGIN, LLC, an Illinois limited liability company) ("Mortgagor"), all the right, title, interest, claim or demand whatsoever Subordinated Mortgagee may have acquired in, through or by that certain Subordinated Mortgage and Option Agreement dated March 24, 2005 and recorded March 31, 2005 with the Kane County, Illinois Recorder as Document No. 2005K035745, to the premises described on Exhibit A attached hereto and made a part hereof(the "Subordinated Mortgage and Option Agreement"). In addition, Subordinated Mortgagee does hereby specifically remise, release, re-convey, terminate and release the option granted to Subordinated Mortgagee by the terms of the Subordinated Mortgage and Option Agreement. This Release and Termination of Subordinated Mortgage and Option Agreement shall include the release and termination of the Subordinated Mortgage and Option Agreement of and from any real estate formerly part of the premises described on Exhibit A attached hereto, including, without limitation, any subdivisions, divisions and condominiums of the premises that may have occurred subsequent to the execution, delivery and recording of the Subordinated Mortgage and Option Agreement. The remainder of this page is intentionally left blank; The signature of the Subordinated Mortgagee appears on the following page. 1 DM 1\4549611.3 IN WITNESS WHEREOF, this�Satisfaction and Release of Subordinated Mortgage and Option Agreement is executed this�day of August, 2014. THE CITY OF ELGIN,ILLINOIS, an Illinois municipal corporation By: Name: D vid K pta' ay By: Name: Kimberly Dewis,Ci(y Cler STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that David Kaptain, in his capacity as Mayor, and Kimberly Dewis, in her capacity as City Clerk, of THE CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument, as their free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and seal this day of August, 2014. M AL" NOTARY PUBLIC RMAN of Illinois Commission Expires s o8/o6/15 2 DM 1\4549611.3 EXHIBIT A Legal Description PARCEL ONE: LOTS 1, 2, 3, 4, 5 AND 6 AND PART OF LOT 10 OF B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 OF BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; LOTS 1, 2 AND PART OF LOT 3 OF MCOSKER'S SUBDIVISION OF LOTS 7, 8, 9, 10 AND 101/2 OF B. W. RAYMOND'S SUBDIVISION OF LOT 1 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AND THAT PORTION OF LAND LYING BETWEEN LOT 9 AND FOX RIVER; ALSO PART OF THE VACATED ALLEY LYING ON THE SOUTHERLY PORTION OF SAID MCOSKER'S SUBDIVISION; ALSO PART OF LOT 2 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; ALL OF THE FORGOING BEING DESCRIBED AS A TRACT AS FOLLOWS: BEGINNING AT A POINT IN THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 2 IN BLOCK 21 AFORESAID, 95 FEET SOUTHWESTERLY, MEASURED ALONG SAID SOUTHERLY LINE, FROM THE WESTERLY LINE EXTENDED OF LOT 4 OF B. W. RAYMOND'S SUBDIVISION; THENCE NORTHWESTERLY PARALLEL WITH SAID WESTERLY LINE EXTENDED OF SAID LOT 4 A DISTANCE OF 42 FEET; THENCE NORTHWESTERLY TO A POINT ON THE WESTERLY LINE OF LOT 2 OF MCOSKER'S SUBDIVISION 105 FEET NORTHWESTERLY FROM THE SOUTHWESTERLY CORNER THEREOF; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF LOT 2 OF MCOSKER'S SUBDIVISION TO THE NORTHWESTERLY CORNER THEREOF AND THE SOUTH LINE OF CHICAGO STREET; THENCE EAST ALONG SAID SOUTH LINE OF CHICAGO STREET TO THE WESTERLY LINE OF GROVE AVENUE; THENCE SOUTHEASTERLY ALONG SAID WESTERLY LINE OF GROVE AVENUE TO THE SOUTHEAST CORNER OF LOT 2 IN BLOCK 21 AFORESAID; THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 2 TO THE EASTERLY LINE OF RIVERSIDE AVENUE; THENCE NORTHERLY ALONG SAID EASTERLY LINE TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL TWO: LOT 11 AND THAT PART OF LOT 28 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE AND THAT PART OF THE VACATED ALLEY LYING BETWEEN SAID LOTS 11 AND 28, ALL IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 OF BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN,KANE COUNTY, ILLINOIS. 3 DM I\4549611.3 PARCEL THREE: THAT PART OF LOTS 12 AND 27 IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, AND THE VACATED ALLEY LYING BETWEEN SAID LOTS 12 AND 27, LYING BETWEEN THE WESTERLY LINE OF SOUTH GROVE AVENUE, AND THE EASTERLY LINE OF RIVERSIDE AVENUE, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL FOUR: LOTS 13, 14, 15, 16, 23, 24, 25 AND 26 AND THE VACATED 20 FOOT ALLEY ADJOINING SAID LOTS IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3,4 AND 5 IN BLOCK 21, OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL FIVE: LOTS 17, 18, 21 AND 22 (EXCEPT THAT PART OF SAID LOTS, IF ANY, FALLING WITHIN RIVERSIDE AVENUE) OF B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER IN THE EAST FRACTION OF SOUTHEAST 1/4 OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN; ALSO, ALL THAT PART OF AN ALLEY 20 FEET WIDE (NOW VACATED) IN SAID SUBDIVISION, WHICH LIES BETWEEN SAID LOTS 21 AND 22, AND SAID LOTS 17 AND 18 AND SOUTH OF THE NORTH LINE OF SAID LOTS AND NORTH OF THE SOUTH LINE OF SAID LOTS EXTENDED ACROSS SAID ALLEY, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL SIX: LOTS 19 AND 20 AND THE VACATED 20 FOOT ALLEY LYING BETWEEN SAID LOTS IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, (EXCEPT THAT PART LYING WEST OF THE EASTERLY LINE OF RIVERSIDE AVENUE AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885 IN BOOK 7, PAGE 13), IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL SEVEN: THAT PART OF LOTS "A", "B", "C", "D", "E" AND "F" LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN HARVEY AND AMICK'S SUBDIVISION OF LOT 6 AND 7 IN BLOCK 21 OF JAMES T. GIFFORD'S PLAT OF ELGIN, ACCORDING TO THE PLAT OF SAID HARVEY AND AMICK'S SUBDIVISION RECORDED APRIL 17, 1866 IN BOOK 2 OF MAPS, PAGE 139 1/2, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. 4 DM 1\4549611.3 PARCEL EIGHT: THAT PART OF THE NORTHERLY 22 FEET OF LOT 8 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE, IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AS LAID OUT BY JAMES T GIFFORD, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL NINE: 18 FOOT WIDE ALLEY NOW KNOWN AS "FOUNTAIN SQUARE WAY" LYING BETWEEN SOUTHWESTERLY LINE OF GROVE AVENUE AND NORTHEASTERLY LINE OF RIVERSIDE AVENUE AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885 IN BOOK 7, PAGE 13 IN B.W, RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER IN EAST HALF OF SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL TEN: THAT PART OF RIVERSIDE AVENUE IN THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OF LOT 20 IN B.W RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4, AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; THENCE ON AN ASSUMED BEARING OF NORTH 32 DEGREES 47 MINUTES 16 SECONDS WEST, 225.78 FEET ALONG THE NORTHEASTERLY RIGHT-OF-WAY OF RIVERSIDE AVENUE; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY THE FOLLOWING FOUR COURSES: NORTH 56 DEGREES 31 MINUTES 00 SECONDS EAST, 5.27 FEET; THENCE NORTH 33 DEGREES 29 MINUTES 00 SECONDS WEST, 42.00 FEET; THENCE NORTH 27 DEGREES 23 MINUTES 16 SECONDS WEST, 103.59 FEET; THENCE NORTH 33 DEGREES 29 MINUTES 00 SECONDS WEST, 23.16 FEET; THENCE SOUTH 66 DEGREES 09 MINUTES 03 SECONDS WEST, 1.72 FEET ALONG THE SOUTHWESTERLY EXTENSION OF THE SOUTHERLY LINE OF CHICAGO STREET; THENCE SOUTH 25 DEGREES 19 MINUTES 30 SECONDS EAST, 128.97 FEET TO A LINE 184.00 FEET SOUTHWESTERLY OF AND PARALLEL WITH THE SOUTHWESTERLY LINE OF SOUTH GROVE AVENUE; THENCE SOUTH 33 DEGREES 29 MINUTES 00 SECONDS EAST, 266.55 FEET ALONG SAID PARALLEL LINE TO THE SOUTHWESTERLY EXTENSION OF THE SOUTHEASTERLY LINE OF SAID LOT 20; THENCE NORTH 56 DEGREES 29 MINUTES 29 SECONDS EAST, 1.00 FEET ALONG SAID EXTENSION OF THE POINT OF BEGINNING. 5 DM 114549611.3 PIN Nos.: 06-14-433-038; 06-14-433-039; 06-14-433-013; 06-14-433-014; 06-14-433-045; and 06-14-433-046. Common Address: Southwest corner of Chicago Street and South Grove Avenue Elgin, Illinois 6 DMI\4549611.3 EXHIBIT D (Form of Release and Termination of Development Agreement) 18 DM 1\4555604.5 This document prepared by and return after recording to: David B. Yelin, Esq. Duane Morris LLP 190 South LaSalle Street, Suite 3700 Chicago, IL 60606-3433 TERMINATION OF DEVELOPMENT AGREEMENT This Termination of Development Agreement (this "Agreement") is dated as of the 14th day of August, 2014 by and between THE CITY OF ELGIN, an Illinois municipal corporation (the "City"), and FIRST AMERICAN BANK, not personally, but solely as Trustee under Trust Agreement dated August 19, 2009 and known as Trust No. 1-09-124 (the "First American Trust"). RECITALS: A. The City and RSC-ELGIN, LLC, an Illinois limited liability company ("RSC") entered into that certain Development Agreement dated August 11, 2004, as amended by that certain Amendment to Development Agreement dated March 23, 2005, and further amended by that certain Second Amendment to Development Agreement dated February 22, 2006 (as amended, the "Development Agreement") relating to the development of the property commonly known as 38-50 South Grove Avenue in Elgin, Illinois, and legally described on Exhibit"A" attached hereto (the "Land"). B. Pursuant to that certain Assignment dated August 19, 2009, RSC assigned to the First American Trust all of its right, title and interest in and to its right,tile, and interest in, to and under the Development Agreement, including, without limitation any and all payments to be made by the City under the Development Agreement. C. Notwithstanding any termination provisions that may be contained in the Development Agreement, (i) the City desires to terminate the Development Agreement and release the Land from any encumbrance that may have been created by the Development Agreement and (ii) the First American Trust desires to release any right, title, and interest in, to and under the Development Agreement, including, without limitation any and all future or further payments from the City under the Development Agreement. AGREEMENTS: NOW, THEREFORE, in consideration of the foregoing and of the mutual agreement of the parties hereto to the terms and conditions set forth below, the parties, intending to be legally bound hereby, agree as follows: I DM I\4550017.4 1. Termination of Development Agreement. The City and First American Trust execute this Agreement to effect the termination of the Development Agreement as of the date hereof and to confirm that the Development Agreement is terminated and no longer of any force or effect. The City and First American Trust hereby remise, release and relieve each of the other party and their respective successors and assigns of and from any and all rights, interests, duties, liabilities and obligations relating to or arising out of the Development Agreement. The City represents and warrants to First American Trust that the City is and remains the sole owner of the rights, title, and interests of the City as set forth in the Development Agreement. First American Trust represents and warrants to the City that First American Trust is the successor-in-interest to RSC's rights, title, and interests in the Development Agreement. In addition, each of the City and First American Trust represents and warrants to the other party that (a) it has not assigned any claim for payment or right to any claim against the other party relating to or arising out of the Development Agreement. and (b) it has the full right, power, and authority to execute this Agreement. 2. Counterparts. This Agreement may be executed in multiple counterparts or by email or facsimile transmissions, each of which shall be treated as an original of this Agreement for all purposes, and all of which shall constitute one (1) agreement binding upon all of the parties hereto, notwithstanding that all the parties are not signatory to the original or the same counterpart or email or facsimile transmission. Each such counterpart or email or facsimile transmission shall be admissible into evidence as an original hereof against the party who executed it. 3. Successors and Assigns. The terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 4. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the termination of the Development Agreement, and the terms of this Agreement are contractual and not merely recitals. This Agreement shall not be altered, amended, changed, waived, terminated or otherwise modified in any respect or particular, unless the same shall be in writing and signed by or on behalf of the party to be charged. Time is of the essence with respect to this Agreement and to the performance and satisfaction of its terms and conditions. The remainder of this page 2 is intentionally left blank; The signatures of the parties are set forth on the following page 3. A 2 DM 1\4550017.3 IN WITNESS WHEREOF, the parties have caused this Lease Termination Agreement to be executed as of the date first set forth above. THE CITY OF ELGIN, ILLINOIS, an Illinois municipal c oration By: Na e: David K in, ayor By: Name: imberly Dewis, City Clerk FIRST AMERICAN BANK, not personally, but solely as Trustee under Trust Agreement dated August 19, 2009 and known as Trust No. 1-09-124 BY: Vice President ATTEST: BY: Vice President 3 DM 1445500173 IN WITNESS WHEREOF, the parties have caused this Lease Termination Agreement to be executed as of the date first set forth above. THE CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation By: Name: David Kaptain, Mayor By: Name: Kimberly Dewis, City Clerk FIRST AMERICAN BANK, not personally, but solely as Trustee under Trust Agreement dated August 19, 2009 and known as Trust No. 1-09-124 BY: n T. Matej k , Vice President Vice President-Trus cer ATTEST- BY( C'` - Rosanne M. DuPass , Vice President Vice President-Trust Officer 3 DMl\4550017.3 STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) I,biil ���; G , '�: , a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that David Kaptain, in his capacity as Mayor, and Kimberly Dewis, in her capacity as City Clerk, of THE CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument, as their free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and seal this day of August, 2014. "OFFICIAL SEAL" BARBARA E.FURMAN NOTARY PUBLIC NotAry Public,State of Illinois MY Commission Expires 08/06/15 Commission Expires STATE OF ILLINOIS } COUNTY OF COOK ) SS. 1, the undersigned, a Notary Public in and for said County, in the state aforesaid, DO HEREBY CERTIFY, THAT of the First American Bank and of said Bank, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Vice President and Vice President respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act of said Bank, for the uses and purposes therein set forth; and the said Vice President did also then and there acknowledge that said Vice President as custodian of the corporate seal of said Bank, did affix the said corporate seal of said Bank to said instrument as said Vice President's own free and voluntary act, and as the free and voluntary act of said Bank,for the uses and purposes therein set forth. Given under my hand and Notarial Seal this day of August,2014. Notary Public 4 DM 1\4550017.3 STATE OF ILLINOIS ) ) SS. COUNTY OF KANE ) I, , a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that David Kaptain, in his capacity as Mayor, and Kimberly Dewis, in her capacity as City Clerk, of THE CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument, as their free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and seal this day of August, 2014. NOTARY PUBLIC Commission Expires STATE OF ILLINOIS ) COUNTY OF I,P+06 ) SS. I, the undersigned, NN�� lic in and for said County, in the state aforesaid, DO HEREBY CERTIFY, THAT Joe esident-Trust Oificerof the First American Bank and Rosanne Du ass rof said Bank, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Vice President and Vice President respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act of said Bank, for the uses and purposes therein set forth; and the said Vice President did also then and there acknowledge that said Vice President as custodian of the corporate seal of said Bank, did affix the said corporate seal of said Bank to said instrument as said Vice P e act, and as the free and voluntary act of said Bank, for the uses and pu ses therdfiRelAb 31�AL ILENE SI KAYE My h d and Notarial Seal this�day of August, 2 14NOTARY PUBIC ''a'E S ILLINOIS MY COMMISSION EXPIRES 01/28/15 Notary Public 4 DM 1\4550017.3 Exhibit"A" Lezal Description of Land PARCEL ONE: LOTS 1, 2, 3, 4, 5 AND 6 AND PART OF LOT 10 OF B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 OF BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; LOTS 1, 2 AND PART OF LOT 3 OF MCOSKER'S SUBDIVISION OF LOTS 7, 8, 9, 10 AND 101/2 OF B. W. RAYMOND'S SUBDIVISION OF LOT 1 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AND THAT PORTION OF LAND LYING BETWEEN LOT 9 AND FOX RIVER; ALSO PART OF THE VACATED ALLEY LYING ON THE SOUTHERLY PORTION OF SAID MCOSKER'S SUBDIVISION; ALSO PART OF LOT 2 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; ALL OF THE FORGOING BEING DESCRIBED AS A TRACT AS FOLLOWS: BEGINNING AT A POINT IN THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 2 IN BLOCK 21 AFORESAID, 95 FEET SOUTHWESTERLY, MEASURED ALONG SAID SOUTHERLY LINE, FROM THE WESTERLY LINE EXTENDED OF LOT 4 OF B. W. RAYMOND'S SUBDIVISION; THENCE NORTHWESTERLY PARALLEL WITH SAID WESTERLY LINE EXTENDED OF SAID LOT 4 A DISTANCE OF 42 FEET; THENCE NORTHWESTERLY TO A POINT ON THE WESTERLY LINE OF LOT 2 OF MCOSKER'S SUBDIVISION 105 FEET NORTHWESTERLY FROM THE SOUTHWESTERLY CORNER THEREOF; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF LOT 2 OF MCOSKER'S SUBDIVISION TO THE NORTHWESTERLY CORNER THEREOF AND THE SOUTH LINE OF CHICAGO STREET; THENCE EAST ALONG SAID SOUTH LINE OF CHICAGO STREET TO THE WESTERLY LINE OF GROVE AVENUE; THENCE SOUTHEASTERLY ALONG SAID WESTERLY LINE OF GROVE AVENUE TO THE SOUTHEAST CORNER OF LOT 2 IN BLOCK 21 AFORESAID; THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 2 TO THE EASTERLY LINE OF RIVERSIDE AVENUE; THENCE NORTHERLY ALONG SAID EASTERLY LINE TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL TWO: LOT I 1 AND THAT PART OF LOT 28 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE AND THAT PART OF THE VACATED ALLEY LYING BETWEEN SAID LOTS 11 AND 28, ALL IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 OF BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL THREE: THAT PART OF LOTS 12 AND 27 IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF 5 DM 1 W 550017.3 FOX RIVER, AND THE VACATED ALLEY LYING BETWEEN SAID LOTS 12 AND 27, LYING BETWEEN THE WESTERLY LINE OF SOUTH GROVE AVENUE, AND THE EASTERLY LINE OF RIVERSIDE AVENUE, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL FOUR: LOTS 13, 14, 15, 16, 23, 24, 25 AND 26 AND THE VACATED 20 FOOT ALLEY ADJOINING SAID LOTS IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3,4 AND 5 IN BLOCK 21, OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL FIVE: LOTS 17, 18, 21 AND 22 (EXCEPT THAT PART OF SAID LOTS, IF ANY, FALLING WITHIN RIVERSIDE AVENUE) OF B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER IN THE EAST FRACTION OF SOUTHEAST 1/4 OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN; ALSO, ALL THAT PART OF AN ALLEY 20 FEET WIDE (NOW VACATED) IN SAID SUBDIVISION, WHICH LIES BETWEEN SAID LOTS 21 AND 22, AND SAID LOTS 17 AND 18 AND SOUTH OF THE NORTH LINE OF SAID LOTS AND NORTH OF THE SOUTH LINE OF SAID LOTS EXTENDED ACROSS SAID ALLEY, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL SIX: LOTS 19 AND 20 AND THE VACATED 20 FOOT ALLEY LYING BETWEEN SAID LOTS IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, (EXCEPT THAT PART LYING WEST OF THE EASTERLY LINE OF RIVERSIDE AVENUE AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885 IN BOOK 7, PAGE 13), IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL SEVEN: THAT PART OF LOTS "A", "B", "C", "D", "E" AND "F" LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN HARVEY AND AMICK'S SUBDIVISION OF LOT 6 AND 7 IN BLOCK 21 OF JAMES T. GIFFORD'S PLAT OF ELGIN, ACCORDING TO THE PLAT OF SAID HARVEY AND AMICK'S SUBDIVISION RECORDED APRIL 17, 1866 IN BOOK 2 OF MAPS, PAGE 139 1/2, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. 6 DMl\4550017.3 PARCEL EIGHT: THAT PART OF THE NORTHERLY 22 FEET OF LOT 8 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE, IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AS LAID OUT BY JAMES T GIFFORD, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL NINE: 18 FOOT WIDE ALLEY NOW KNOWN AS "FOUNTAIN SQUARE WAY" LYING BETWEEN SOUTHWESTERLY LINE OF GROVE AVENUE AND NORTHEASTERLY LINE OF RIVERSIDE AVENUE AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885 IN BOOK 7, PAGE 13 IN B.W, RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER IN EAST HALF OF SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL TEN: THAT PART OF RIVERSIDE AVENUE IN THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OF LOT 20 IN B.W RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4, AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; THENCE ON AN ASSUMED BEARING OF NORTH 32 DEGREES 47 MINUTES 16 SECONDS WEST, 225.78 FEET ALONG THE NORTHEASTERLY RIGHT-OF-WAY OF RIVERSIDE AVENUE; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY THE FOLLOWING FOUR COURSES: NORTH 56 DEGREES 31 MINUTES 00 SECONDS EAST, 5.27 FEET; THENCE NORTH 33 DEGREES 29 MINUTES 00 SECONDS WEST, 42.00 FEET; THENCE NORTH 27 DEGREES 23 MINUTES 16 SECONDS WEST, 103.59 FEET; THENCE NORTH 33 DEGREES 29 MINUTES 00 SECONDS WEST, 23.16 FEET; THENCE SOUTH 66 DEGREES 09 MINUTES 03 SECONDS WEST, 1.72 FEET ALONG THE SOUTHWESTERLY EXTENSION OF THE SOUTHERLY LINE OF CHICAGO STREET; THENCE SOUTH 25 DEGREES 19 MINUTES 30 SECONDS EAST, 128.97 FEET TO A LINE 184.00 FEET SOUTHWESTERLY OF AND PARALLEL WITH THE SOUTHWESTERLY LINE OF SOUTH GROVE AVENUE; THENCE SOUTH 33 DEGREES 29 MINUTES 00 SECONDS EAST, 266.55 FEET ALONG SAID PARALLEL LINE TO THE SOUTHWESTERLY EXTENSION OF THE SOUTHEASTERLY LINE OF SAID LOT 20; THENCE NORTH 56 DEGREES 29 MINUTES 29 SECONDS EAST, 1.00 FEET ALONG SAID EXTENSION OF THE POINT OF BEGINNING. 7 DM I\4550017.3 EXHIBIT E (Form of Second Amendment to Fountain Square on the River Easement and Operating Agreement) 19 DM 114555604.5 This Instrument Prepared By, and After Recording,Please Return To: David B. Yelin, Esq. Duane Morris LLP 190 South LaSalle, Suite 3700 Chicago, IL 60603 This space reserved or Recorder's use only. SECOND AMENDMENT TO FOUNTAIN SQUARE ON THE RIVER EASEMENT AND OPERATING AGREEMENT This Second Amendment to Fountain Square on the River Easement and Operating Agreement (this "Amendment") is made as of this 14th day of August, 2014 by and among FOUNTAIN SQUARE ON THE RIVER COMMERCIAL CONDOMINIUM ASSOCIATION, LTD., an Illinois not-for-profit corporation (the "Commercial Condo Association"), FOUNTAIN SQUARE ON THE RIVER CONDOMINIUM ASSOCIATION, LTD., an Illinois not-for-profit corporation (the "Residential Condo Association"), THE CITY OF ELGIN, an Illinois home rule municipality (the "City"), and First American Bank, an Illinois banking corporation, not personally but solely as Trustee under Trust Agreement dated August 19, 2009 and known as Trust No. 1-09-124 (successor-in-interest to RSC-Elgin, LLC, an Illinois limited liability company) (the "Trust"). RECITALS: A. The Commercial Condo Association, the Residential Condo Association and the City are parties to that certain Fountain Square on the River Easement and Operating Agreement dated as of October 18, 2007 and recorded in the Office of the Recorder of Deeds of Kane County, Illinois (the "Recorder's Office") on October 19, 2007 as Document No. 2007K106256, as amended by that certain First Amendment to Fountain Square on the River Easement and Operating Agreement recorded on October 19, 2007 as Document Number 2007KI06256 (as so amended, the "EOA") relating to the commercial parcel of real estate legally described on Exhibit "A" and the condominium parcel of real estate legally described on Exhibit `B", both attached hereto and made a part hereof. The Commercial Condo Association was incorrectly described in the EOA as "Fountain Square on the River Commercial Condominium Association, Inc." because of a scrivener's error. Pursuant to the EOA, the parties entered into certain agreements relating to the Commercial Parcel, the Condominium Parcel and the Public Parking Garage Parcel (as all such terms are defined in the EOA), located in the City of Elgin, County of Kane, Illinois. B. The Residential Condo Association executed the EOA on behalf of the Condominium Unit Owners (in their capacity as the owners of the Condominium Parcel) pursuant to the terms of that certain Declaration of Condominium for Fountain Square on the DM 1\4731516.4 River Condominiums dated as of October 18, 2007 and recorded in the Recorder's Office on October 19, 2007 as Document No. 2007K106255 (the "Declaration of Condominium"). C. Pursuant to Section 5(e) of the Declaration of Condominium, each Condominium Unit Owner, by acceptance of a deed to a Condominium Unit, covenants and agrees that the obligations of the EOA which are imposed on the Condominium Unit Owners shall be the obligation of the Condominium Unit Owners collectively and each Condominium Unit Owner agrees that the Residential Condo Association may perform the obligations on behalf of the Condominium Unit Owners collectively. Section 21.13 of the EOA provides that all obligations of the Condominium Property Owner under the EOA shall be the obligations jointly and severally of both the Residential Condo Association and the Condominium Unit Owners collectively so long as the Condominium Property is subject to the Condominium Act. D. Section 5(e) of the Declaration of Condominium permits the Residential Condo Association to amend the EOA on behalf of the Condominium Unit Owners. E. The Trust, as successor to RSC-Elgin, LLC, is the current owner of the Commercial Parcel (as described on Exhibit A, attached hereto and made a part hereof) and the Condominium Parcel, other than Condominium Units sold to Condominium Unit Owners. F. The City is the current owner of the Public Parking Garage Parcel, which is referred to as "City Parking Unit P-1" in the Condominium Declaration. G. The parties hereto desire to amend the EOA (and the exhibits attached thereto) to delete any and all references to the "Phase II" property and any proposed improvements to be constructed thereon, as set forth herein. Now, therefore, in consideration of the foregoing Recitals, and for good and lawful consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, the parties, intending to be legally bound, hereby agree as follows: 1. Incorporation of Recitals and Exhibits; Capitalized Terms. The foregoing Recitals and the Exhibits attached hereto are incorporated into this Amendment and made a part hereof. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the EOA. 2. Commercial Parcel Exhibit A attached to the EOA is deleted in its entirety and replaced with Exhibit A-1 attached hereto. All references in the EOA to Exhibit A shall mean and refer to Exhibit A-1 attached hereto. 3. Amendments to the EOA. The term "Project Site" as defined and used anywhere in the EOA (including the exhibits attached thereto) is amended by deleting therefrom any references to the Phase II property and any references to the proposed improvements to be constructed on the Phase II property. Further, the term "Project Site" as used in the EOA (and in the exhibits attached thereto) is amended by deleting therefrom any references to the Phase II property and any proposed improvements to be constructed thereon, it being the intention that the application and effect of the EOA be limited to the Phase I condominium property. In furtherance of the foregoing, the following provisions of the EOA are amended as follows: 2 DM 1\4731516.4 a. Recital G of the EOA, consisting of two grammatical paragraphs, is deleted and the following new Recital G is substituted in its place: "G. The Project Site is comprised of one mid-rise building with 93 residential condominium units, with 114 parking units, 6 of which are allocated for motorcycle use. In addition, 25 parking spaces have been conveyed to the Public Parking Garage Property Owner. This Agreement (and its accompanying exhibits) is designed to grant easements and govern the interplay between the Commercial Property Owner, the Condominium Property Owner and the Public Parking Garage Property Owner pertaining to the Project." b. The reference to "both Phase I and Phase II" in the definition of the "Site Plan" in Recital H is hereby deleted without replacement. C. The definition of"PUBLIC PARKING GARAGE PARCEL" in Article 1 deleted in its entirety and replaced with the following: PUBLIC PARKING GARAGE PARCEL - As defined in Recital D and as legally described in Exhibit C. The Public Parking Garage Parcel is also referred to as City Parking Unit P-1 (the "City Parking Unit") in the Condominium Declaration. d. The following portion of paragraph (B) of Section 5.3 ("Construction of Additional Support") is hereby deleted without replacement therefor: "and thereafter shall jointly pursue any applicable and legitimate claim against the developer of the property RSC-Elgin, LLC an Illinois limited liability company or such other responsible party for the costs and expenses for substitute or additional structural support." e. The second grammatical paragraph of Section 21.4 ("Amendments to Agreement") is deleted in its entirety without replacement therefor. f. The Owners confirm and agree that all easements and rights granted in Article 23 of the EOA (being temporary construction easements) have terminated, are released and of no further force and effect. 4. Ratification. As expressly modified hereby, the EOA is ratified and confirmed by the parties hereto and shall continue in full force and effect. The Trust acknowledges and agrees that it is the current owner of the Commercial Parcel and the Condominium Parcel (other than Condominium Units sold to Condominium Unit Owners) and that, for purposes of the EOA, the Trust shall be deemed to be the Commercial Property Owner under the EOA. The City acknowledges and agrees that it is the current owner of the Public Parking Garage Parcel, the City shall be deemed to be the Public Parking Garage Property Owner for all purposes under the EOA. The Trust, the City and the Residential Condo Association (on behalf of the Condominium Unit Owners) agree that the EOA (as amended hereby) is in full force and effect and that they shall be bound by the terms of the EOA (as amended hereby). 3 DM l\4731516.4 5. Conflict. In the event of any conflict or inconsistency between the terms of the EOA and this Amendment, the terms of this Amendment shall control to resolve such conflict or inconsistency. 6. Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws of the State of Illinois. 7. Recording. This Amendment shall be recorded in the Recorder's Office. 8. Bindin Effect.ffect. The easements, covenants and restrictions created under the EOA (as amended hereby) shall be binding upon and inure to the benefit of all parties having or acquiring any right, title or interest in or to any portion of, or interest or estate in, the Property, and each of the foregoing shall run with the land. 9. Trustee Exculpation. It is expressly understood and agreed by and between the parties hereto, anything herein to the contrary notwithstanding, that each and all of the warranties, indemnities, representations, covenants, undertakings and agreements herein made on the part of the Trustee, while in form purporting to be the warranties, indemnities, representations, covenants, undertakings and agreements of First American Bank as said Trustee, are nevertheless each and every one of them, made and intended not as personal warranties, indemnities, representations, covenants, undertakings and agreements by First American Bank or any of its directors, officers, employees, or shareholders or for the purpose or with the intention of binding First American Bank or any of its directors, officers, employees, or shareholders personally but are made and intended for the purpose of binding only that portion of the trust property specifically described herein, and this instrument is executed and delivered by First American Bank not in its own right, but solely in the exercise of the powers conferred upon it as such Trustee, and no personal liability or personal responsibility is assumed by nor shall at any time be asserted or enforceable by any person against First American Bank or any of its directors, officers, employees, or shareholders on account of this instrument or on account of any warranty, indemnity, representation, covenant, undertaking or agreement of the Trustee in this instrument, all such personal liability, if any, being expressly waived and released and any recovery therefor being limited to the property hereby conveyed and the enforcement of remedies under the documents and instruments creating, securing, or otherwise governing the obligations secured by this instrument. 10. Counterparts. This Agreement may be executed in multiple counterparts or by email or facsimile transmissions, each of which shall be treated as an original of this Agreement for all purposes, and all of which shall constitute one (1) agreement binding upon all of the parties hereto, notwithstanding that all the parties are not signatory to the original or the same counterpart or email or facsimile transmission. Each such counterpart or email or facsimile transmission shall be admissible into evidence as an original hereof against the party who executed it. 11. Miscellaneous. The provisions of this Amendment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. The section and paragraph headings are for convenience only and shall not be considered a part of the Amendment. 4 DM 1\4731516.4 In Witness Whereof, the parties have executed this Second Amendment to Fountain Square on the River Easement and Operating Agreement as of the date set forth above. COMMERCIAL CONDO ASSOCIATION: FOUNTAIN SQUARE ON THE RIVER COMMERCIAL CONDOMINIUM ASSOCIATION, LTD., an Illinois not- for-profit co oration By: Name: J04M. Lee Title: Auffiorized Officer STATE OF ILLINOIS ) ss. COUNTY OF COOK ) I, , a Notary Public in and for the County and State aforesaid, do her; certify that John M. Lee, an Authorized Officer of Fountain Square on the River Commercial Condominium Association, Ltd., an Illinois not-for-profit corporation, personally known to me to be the same person whose name is subscribed to the foregoing First Amendment to Fountain Square on the River Easement and Operating Agreement, appeared before me this day in person and acknowledged that he signed and delivered the First Amendment to Fountain Square on the River Easement and Operating Agreement as his own free and voluntary act, and as the free and voluntary act of the corporation, for itself for the uses and purposes set forth therein. GIVEN, under my hand and notarial seal this T day of August, 2014 o ry Public y Commission Expires: OFFICIAL SEAL JAMES M BERTON NOTARY PUBLIC -STATE OF ILLINOIS MY COMMISSION EXPIRES 10109116 Signatures Continued on Following Pages DM 1\4731516.3 RESIDENTIAL CONDO ASSOCIATION: FOUNTAIN SQUARE ON THE RIVER CONDOMINIUM ASSOCIATION, LTD., an Illinois not- for-profit corp ation By: Name: Jo . Lee Title: Authorized Officer STATE OF ILLINOIS ) ss. COUNTY OF COOK ) eyc�ertify a Notary Public in and for the County and State aforesaid, doh that John M. Lee, an Authorized Officer of Fountain Square on the River Condominium Association, Ltd., an Illinois not-for-profit corporation, personally known to me to be the same person whose name is subscribed to the foregoing First Amendment to Fountain Square on the River Easement and Operating Agreement, appeared before me this day in person and acknowledged that he signed and delivered the First Amendment to Fountain Square on the River Easement and Operating Agreement as his own free and voluntary act, and as the free and voluntary act of the corporation, for itself for the uses and purposes set forth therein. GIVEN, under my hand and notarial seal this / / day of August, 2014 otary Public My Commission Expires: OFFICIAL SEAL JAMES M BERTON NOTARY PUBLIC-STATE OF ILLINOIS MY COMMISSION EXPIRES 10!0906 Signatures Continued on Following Pages 6 DM 1\4731516.3 CITY: CITY OF ELGIN, an Illinois home rule municipality By. Na . avid Kaptai Title: M yo Attest: 4 AL Name: Kimberly Dewis Title: City Clerk STATE OF ILLINOIS ) ss. COUNTY OF KANE -l) 1,?J&& J\ �, VUEZ(n�\`l a Notary Public in and for the County and State aforesaid, do hereby certify that David Kaptain, as Mayor of the City of Elgin, an Illinois home rule municipality, and Kimberly Dewis, as Clerk of the City of Elgin, Illinois, both personally known to me to be the same persons whose names are subscribed to the foregoing First Amendment to Fountain Square on the River Easement and Operating Agreement, appeared before me this day in person and acknowledged that they signed and delivered the First Amendment to Fountain Square on the River Easement and Operating Agreement as their own free and voluntary acts, and as the free and voluntary act of the City of Elgin, Illinois, for itself for the uses and purposes set forth therein. GIVEN, under my hand and notarial seal this day of August, 2014 Notary Public My Commission Expires: �0 -l� "OFFICIAL SEA11t BARBARA E.FURMAN Notary Public,State of Illinois My Commission Expired 05/08/15 Signatures Continued on Following Page 7 DM 1\4731516.4 TRUST: First American =n4 Illinois banking corporation, not personally bhS1tee under Trust Agreement dated August 19, 2009 and known as Trust No. 1-09-124 By: Vi _ rust officer , Vic Pres t Attest: Rosanne - — , Vice President Vice STATE OF ILLINOIS ) ss. COUNTY OF I(-63 C ) 1, the undersigned, a Notary Public in and for said County, in the state aforesaid, DO HEREB CERTIFY, THA*hn t Metelcek of the First American Bank and osenne .Du aet of sai ank, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Vice President and Vice President respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act of said Bank, for the uses and purposes therein set forth; and the said Vice President did also then and there acknowledge that said Vice President as custodian of the corporate seal of said Bank, did affix the said corporate seal of said Bank to said instrument as said Vice President's own free and voluntary act, and as the free and voluntary act of said Bank, for the uses and``��pur''poses therein set forth. GIVEN, under my hand notaria se 1 his I L(4day of August, 2014 Notary Public My Commission Expires: OFFICIAL SEAL ILENE SI KAYE NOTARY PUBLIC-STATE OF ILLINOIS MY COMMISSION EXPIRES:01/28/15 8 DM M4731516.3\4731516.3 CONSENT OF MORTGAGEE FIRST AMERICAN BANK, holder of that certain Construction Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Financing Statement dated as of March 2, 2006 and recorded in the Recorder's Office on April 12, 2006 as Document No. 2006K039304, as amended by that certain First Amendment to Loan Documents dated as of April 17, 2006 and recorded in the Recorder's Office on May 11, 2006 as Document No. 2006K050615, hereby consents to the execution and recording of the attached Second Amendment to Fountain Square on the River Easement and Operating Agreement. IN WITNESS WHEREOF, the undersigned has caused this Consent to be signed by its duly authorized officers on its behalf this day of August,2014. FIRST AMERICAN BANK, an Illinois banking corporati n By: N e: John Olsen Titl : Executive Vice President STATE OF ILLINOIS ) 't,v PA ss. COUNTY OF COOK ) n 1 I,—! LU.,t� T �O�a Notary Public in and for the County and State aforesaid, do hereby certify that John Olsen, as Executive Vice President of First American Bank, an Illinois banking corporation, personally known to me to be the same person whose name is subscribed to the foregoing Consent of Mortgagee to First Amendment to Fountain Square on the River Easement and Operating Agreement, appeared before me this day in person and acknowledged that he signed and delivered the Consent of Mortgagee to Second Amendment to Fountain Square on the River Easement and Operating Agreement as his own free and voluntary act, and as the free and voluntary act of the corporation, for itself for the uses and purposes set forth therein.. GIVEN, under my hand and notarial seal this I,;L day of August, 2014 Y` Notary Public My Commission Expires: OFFICIAL SEAL. MARIA F CARDONE 9 NOTARY PUBLIC-STATE OF UAW DMl\3731516.4 MY COMMISSION EVIRES.Wy1a EXHIBIT A-1 RETAIL UNITS A & B OF FOUNTAIN SQUARE ON THE RIVER COMMERCIAL CONDOMINIUMS, A PART OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8, AFORESAID, AND RUNNING THENCE NORTH 330-29'-00" WEST, 61.72 FEET, TO A POINT; THENCE SOUTHWESTERLY, AT RIGHT ANGLES, 2.30 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON, AND THE POINT OF BEGINNING, THENCE CONTINUING SOUTHWESTERLY, ALONG SAID WALL LINE, 42.46 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 12.59 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 1.21 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE. 7 03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 1.41 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 6.60 FEET, THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 34.79 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 7.00 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 11.31 FEET, TO THE EASTERLY MOST INTERIOR WALL; THENCE NORTHWESTERLY, FOLLOWING ALONG SAID WALL LINE, 19.40 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713.63, AND CONCRETE CEILING, ELEVATION 726.68, ALL IN THE CITY OF ELGIN, KANE COUNTY ILLINOIS. AND ALSO COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8, AFORESAID, AND RUNNING THENCE NORTH 330-29'-00" WEST, 138.27 FEET, TO A POINT; THENCE SOUTHWESTERLY, AT RIGHT ANGLES, 2.02 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON, AND THE POINT OF BEGINNING, THENCE CONTINUING SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE. 1.83 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 7 05 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 15.43 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 0.87 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.24 FEET, THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.13 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.00 FEET, THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.57 FEET, THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 4 04 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.42 FEET; THENCE 10 DM1\4731516.4 SOUTHEASTERLY, ALONG SAID WALL LINE, 30.70 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 18.13 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.57 FEET, THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE SOUTHEASTERLY ALONG SAID WALL LINE, 2.03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY ALONG SAID WALL LINE, 0.60 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 18.25 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 23.40 FEET; THENCE EASTERLY, ALONG SAID WALL LINE, 3.58 FEET, THENCE SOUTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 15.94 FEET, THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 7.27 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 8.72 FEET, THENCE NORTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 9 79 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 2.52 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 14.38 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 15.85 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE. 17.98 FEET, THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 1.80 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 9.18 FEET, TO THE EASTERLY MOST INTERIOR WALL; THENCE NORTHWESTERLY FOLLOWING ALONG THE SAID WALL LINE, 77.42 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713.63, AND THE CONCRETE CEILING, ELEVATION 726.57, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. 11 DM I\4731516.4 EXHIBIT F (Form of First Amendment to Declaration of Condominium for Fountain Square on the River Condominiums) 20 DM I\4555604.5 THIS DOCUMENT PREPARED BY AND AFTER RECORDING SHOULD BE RETURNED TO: David B. Yelin, Esq. Duane Morris LLP 190 South LaSalle Street, Suite 3700 Chicago, Illinois 60603 FIRST AMENDMENT TO DECLARATION OF CONDOMINIUM FOR FOUNTAIN SQUARE ON THE RIVER CONDOMINIUMS THIS FIRST AMENDMENT TO DECLARATION OF CONDOMINIUM FOR FOUNTAIN SQUARE ON THE RIVER CONDOMINIUMS ("Amendment") is made and entered into as of this 14th day of August, 2014, by FIRST AMERICAN BANK, not individually or personally, but solely as Trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 (successor-in-interest to RSC-Elgin, LLC, an Illinois limited liability company) (referred to herein as the "Declarant") and joined in by the City of Elgin, Illinois, an Illinois municipal corporation (referred to herein as the "City"). WITNESSETH WHEREAS, RSC-Elgin, LLC previously entered into that certain Declaration of Condominium For The Fountain Square On The River Condominiums dated October 18, 2007 and recorded October 19, 2007 as Document No. 2007K106255 with the Kane County, Illinois Recorder (the 'Declaration") relating to the real estate situated in Kane County, Illinois, and legally described in Exhibit A attached hereto and made a part hereof by reference (the "Property"); WHEREAS, RSC-Elgin, LLC assigned all of its rights under the Declaration to Declarant by that certain Assignment of Declarant's Rights dated August 19, 2009 and recorded August 21, 2009 as Document No. 2009KO64371 with the Kane County, Illinois Recorder; WHEREAS, Declarant desires to amend the Declaration in accordance with the terms and conditions set forth in this Amendment; and WHEREAS, the City joins in the execution of this Amendment for purposes of consenting to the terms of this Amendment which alter the rights granted to the City under the Declaration. NOW, THEREFORE, for Ten and No/100ths Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant, 1 DM l\4549773.5 intending to be legally bound, hereby agrees as follows: 1. Recitals; Defined Terms. The foregoing recitals are acknowledged to be accurate and are incorporated herein. All of the terms used in this Amendment which are not otherwise defined herein shall have the meanings given to such terms in the Declaration. 2. City Parking Units. Section 10j) of the Declaration is hereby amended by deleting the following language from the definition of the City Parking Units in Section 10j) of the Declaration: "[City Parking Unit P-2 shall be added at a later date during Phase II of the development and which time an amendment to this Declaration shall be recorded.]" 3. Legal Description of the Units. Section 3(a) of the Declaration is hereby amended by deleting the following language from Section 3(a) of the Declaration: "(and with additional units to be added upon completion of Phase II)". 4. Declarant and Developer Easements—Roof. Section 5(h)(ii) of the Declaration is hereby amended as follows: a. by deleting the following language from subsection (e) in Section 5(h)(ii) of the Declaration: "and the City of Elgin." b. by deleting the following language from the first sentence of the second grammatical paragraph in 5(h)(ii) of the Declaration: "and to the Corporation Counsel for the City of Elgin (or such other designee)". c. by deleting the third grammatical paragraph of Section 5(h)(ii): "Notwithstanding anything to the contrary in this Declaration, any amendment to the provisions of this Section and/or the subject matter hereof shall require the advance written approval of the City Counsel of the City of Elgin." 5. Rights of First Mortgagees. Subsection 9(f) of the Declaration is amended by deleting the following phrase from subsection 9(f) of the Declaration: "and approval by the City of Elgin" 6. Rights of the City of Elgin. a. Section 10.01(a) (including clauses (i) through (vii) therein) of the Declaration is 2 DMl\4549773.5 hereby deleted in its entirety, without replacement therefor. b. Section 10.01(b) (including clauses (i) through (vi) thereof) of the Declaration are hereby deleted and replaced with the following: "Unless the City of Elgin has given its prior written approval, by and through the City Council of the City of Elgin, which approval shall not be unreasonably withheld, conditioned, delayed or denied, neither the Association nor the Unit Owners shall be entitled to adopt an amendment to this Declaration which: (1) materially and adversely impacts the use and enjoyment by the general public of the City Parking Unit P-1 or (2) materially and adversely impacts the property rights of the City of Elgin in and to the City Parking Unit P-1." 7. Section 11 —Amendments and Special Amendments. a. Subsection 11(a) of the Declaration is hereby amended by deleting the last sentence of subsection 11(a) in its entirety, without replacement therefor. b. Subsection II(b) is hereby amended by deleting the following clause (i) from Subsection 11(b) of the Declaration: (i) upon approval of the City of Elgin as may be required in accordance with Section 10.01(b)(iii) above and as may otherwise be required by this Declaration; and (ii)" c. Section 11(c) is hereby amended by deleting the following clause (i) from Subsection 11(c) of the Declaration: ": (i) the City of Elgin if required in accordance with Section 10.01(b)(iii) above and as may otherwise be required by this Declaration, and (ii)" 8. Section 12 - Miscellaneous. a. Subsection 12(f) is hereby amended by deleting the last sentence in Subsection 12(f) in its entirety. b. Subsection 12(i) is hereby amended by deleting the third and fourth grammatical paragraphs of Section 12(i). c. Subsection 120) is hereby deleted in its entirety. 9. Counterparts. This Amendment may be separately executed in one or more counterparts, all of which, when so executed, shall be deemed to constitute one and the same Amendment. 10. Conflicting Terms. In the event of any conflict between the terms of the Declaration and the terms of this Amendment, the terms of this Amendment shall govern and 3 DM l\4549773.5 prevail. 11. Ratification. Except to the extent expressly provided in this Amendment, all of the terms of the Declaration shall remain in full force and effect. The remainder of this page 4 is intentionally left blank; Signatures of the parties appear on the following page 5 4 DM 141549773.5 IN WITNESS WHEREOF, Declarant caused this First Amendment to Declaration of Condominium for Fountain Square on the River Condominiums to be executed as of the day and year first above written. FIRST AMERICAN BANK, not individually or personally, but solely as Trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 13y. c_ > ohn T.Matejcak V e President V sl en -Trust Attest: Rosanne M.DuPass , Vice President Ice president-Trugmfm6er STATE OF ILLINOIS ) COUNTY OF I, the undersigned, a No ta c in and for said County, the staff ,6Mi�I€� HEREBY g John T.�atejuc� h' CERTIFY, THAT ce� must tle First American Bank and Vice President-Trust Officer of said Bank, personally n to me to be the same persons whose names are subscribed to the foregoing instrument as such Vice President and Vice President respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act of said Bank, for the uses and purposes therein set forth; and the said Vice President did also then and there acknowledge that said Vice President as custodian of the corporate seal of said Bank, did affix the said corporate seal of said Bank to said instrument as said Vice President's own free and voluntary act, and as the free and voluntary act of said Bank, for the uses and purposes therein set forth. Given under my hand and Notarial Seal this tLfik,day of August, 2014. ------------- ----------- S�.. (6�r ary Public OFFICIAL SEAL ILENE SI KAYE NOTARY PUBLIC-STATE OF ILLINOIS MY COMMISSION EXPIRES:01/28115 5 DM 1\4549773.4 JOINDER: The City of Elgin joins in the execution of the above and foregoing First Amendment to Declaration of Condominium for Fountain Square on the River Condominiums CITY OF GIN L By: Name: vi n, a By: -- && - Name: Kimberly Dewis,City Clerk 6 DM 114549773.5 EXHIBIT A LEGAL DESCRIPTION FOUNTAIN SQUARE CONDOMINIUMS THAT PART OF THE FOLLOWING DESCRIBED PROPERTY TAKEN AS A TRACT: THAT PART OF LOTS"A", "W, "C", "D", "E"AND"F' LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN HARVEY AND AMICK'S SUBDIVISION OF LOTS 6 AND 7 IN BLOCK'21 OF JAMES T. GIFFORD'S PLAT OF ELGIN, ACCORDING TO THE PLAT OF SAID HARVEY AND AMICK'S SUBDIVISION RECORDED APRIL 17, 1866, IN BOOK 2 OF MAPS, PAGE 139-112, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND THAT PART OF THE NORTHERLY 22 FEET OF LOT 8 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN,AS LAID OUT BY JAMES T. GIFFORD, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND LOTS 17, 18,21 AND 22 (EXCEPT THAT PART OF SAID LOTS, IF ANY, FALLING WITHIN RIVERSIDE AVENUE)OF B.W. RAYMOND'S SUBDIVISION OF LOTS 1, 3. 4 AND 51N BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER IN THE EAST FRACTION OF THE SOUTHEAST QUARTER OF SECTION 14,TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN; ALSO, ALL THAT PART OF AN ALLEY 20 FEET WIDE(NOW VACATED) IN SAID SUBDIVISION, WHICH LIES BETWEEN SAID LOTS 21 AND 22 AND SAID LOTS 17 AND 18 AND SOUTH OF THE NORTH LINE OF SAID LOTS AND NORTH OF THE SOUTH LINE OF SAID LOTS EXTENDED ACROSS SAID ALLEY, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND LOTS 19 AND 20 AND THE VACATED 20- FOOT ALLEY LYING BETWEEN SAID LOTS IN B.W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER (EXCEPT THAT PART LYING WEST OF THE EASTERLY LINE OF RIVERSIDE AVENUE,AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885, IN BOOK 7, PAGE 13), IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. AND THAT PART OF THE 18- FOOT-WIDE ALLEY NOW KNOWN AS"FOUNTAIN SQUARE WAY' LYING BETWEEN B.W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER AND HARVEY.AND AMICK'S SUBDIVISION OF LOTS 6 AND 7 IN BLOCK 21 OF JAMES T. GIFFORD'S PLAT OF ELGIN,ALL IN THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THIRD PRINCIPAL MERIDIAN IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF LOT A OF SAID HARVEY AND AMICK'S SUBDIVISION;THENCE ON AN ASSUMED BEARING OF SOUTH 560-29'- 29"WEST, 184.00 FEET ALONG THE NORTHWESTERLY LINE OF SAID LOT A TO THE NORTHWESTERLY CORNER THEREOF; THENCE NORTH 330-29'-00"WEST, 18.00 FEET ALONG THE NORTHWESTERLY EXTENSION OF THE SOUTHWESTERLY LINE OF SAID HARVEY AND AMICK'S SUBDIVISION TO THE SOUTHWESTERLY EXTENSION OF THE SOUTHEASTERLY LINE OF SAID B.W. RAYMOND'S SUBDIVISION; THENCE NORTH 560-29'-29" EAST, 184.00 FEET ALONG SAID EXTENSION AND SAID SOUTHEASTERLY LINE TO THE SOUTHEASTERLY CORNER OF SAID B.W. RAYMOND'S SUBDIVISION;THENCE SOUTH 330-29'-00"EAST, 18.00 FEET ALONG THE SOUTHWESTERLY LINE OF SOUTH GROVE AVENUE TO THE POINT OF BEGINNING. AND PART OF RIVERSIDE AVENUE VACATED BY DOCUMENT 2005KO35739 TRACT BEGINNING AT THE INTERSECTION OF THE EASTERLY LINE OF RIVERSIDE AVENUE WITH THE SOUTHERLY LINE OF THE AFORESAID NORTHERLY 22 FEET OF LOT 8 AND RUNNING THENCE NORTH 33%%D-26'-44"WEST, MEASURED, ALONG THE EASTERLY LINE OF RIVERSIDE AVENUE AND A PART OF VACATED RIVERSIDE AVENUE, 220.72 FEET; THENCE NORTH 55%%D-59'-21" EAST, PARALLEL WITH THE NORTH SIDE OF THE PARKING DECK OF FOUNTAIN SQUARE ON THE RIVER CONDOMINIUMS, 125.35 FEET; THENCE SOUTH 34%%D-00'-39" EAST. 9.02 FEET; THENCE NORTH 55%%D-59'-21" EAST,25.92 FEET;THENCE SOUTH 33%%D-29'-55' EAST, 12.41 FEET; THENCE NORTH 56%%D-30'-05" EAST, 32.31 FEET,TO THE WESTERLY LINE OF SOUTH GROVE AVENUE;THENCE SOUTH 33%%D-29'-00" EAST,ALONG SAID WESTERLY LINE, 200.77 FEET, TO THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE AFORESAID NORTHERLY 22 FEET OF LOT 8;THENCE SOUTH 56%%D-32'-31'WEST, ALONG SAID SOUTHERLY LINE, 183.81 FEET, MORE OR LESS TO THE POINT OF BEGINNING ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. EXCEPTING THEREFROM THAT PART OF THE PREVIOUSLY DESCRIBED PROPERTY TAKEN AS A TRACT: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8,AFORESAID, AND RUNNING THENCE NORTH 33%%D-29-00"WEST, 51.72 FEET TO A POINT;THENCE SOUTHWESTERLY , AT RIGHT ANGLES, 2.30 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON,AND THE POINT OF BEGINNING; THENCE CONTINUING SOUTHWESTERLY,ALONG SAID WALL LINE,42.45 FEET;THENCE SOUTEASTERLY, ALONG SAID WALL LINE, 12.59 FEET;THENCE SOUTHWESTERLY,ALONG SAID WALL LINE, 1.21 FEET; THENCE SOUTHEASTERLY,ALONG SAID WALL LINE, 7.03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 1,41 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 6.60 FEET; THENCE NORTHEASTERLY,ALONG SAID WALL LINE, 34.79 FEET;THENCE NORTHWESTERLY,ALONG SAID WALL LINE, 7.00 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 11.31 FEET, TO THE EASTERLY MOST INTERIOR WALL;THENCE NORTHWESTERLY, FOLLOWING ALONG SAID WALL LINE, 19.40 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713.63,AND CONCRETE COUNG, ELEVATION 726.68,ALL IN THE CITY OF ELGIN, KANE COUNTY ILLINOIS. ALSO EXCEPTING THAT PART OF THE PREVIOUS DESCRIBED PROPERTY TAKEN AS A TRACT: COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF SOUTH GROVE AVENUE WITH THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 8, AFORESAID, AND RUNNING THENCE NORTH 33i%-D-29'-00" WEST, 138.27 FEET, TO A POINT; THENCE SOUTHWESTERLY, AT RIGHT ANGLES, 2.02 FEET, TO THE INTERIOR WALL OF THE SPACE DESCRIBED HEREON, AND THE POINT OF BEGINNING; THENCE COTINUING SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 1.83 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 7. 05 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL, LINE, 15.43 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 0.67 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.24 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.13 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 5.24 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 5.57 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 4 .04 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 20.42 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 30.70 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 18.13 FEET;THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.57 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE SOUTHEASTERLY ALONG SAID WALL LINE, 2.03 FEET; THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 2.00 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 0.60 FEET, THENCE SOUTHWESTERLY, ALONG SAID WALL LINE, 18.25 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 23.40 FEET; THENCE EASTERLY, ALONG SAID WALL LINE, 3 .58 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 15.94 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 7.27 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 6.72 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE AND AS EXTENDED 9.79 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 2.52 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 14.38 FEET; THENCE SOUTHEASTERLY, ALONG SAID WALL LINE, 15.85 FEET; THENCE NORTHEASTERLY; ALONG SAID WALL LINE, 17.98 FEET; THENCE NORTHWESTERLY, ALONG SAID WALL LINE, 1.80 FEET; THENCE NORTHEASTERLY, ALONG SAID WALL LINE, 9.18 FEET, TO THE EASTERLY MOST INTERIOR WALL; THENCE NORTHWESTERLY FOLLOWING ALONG THE SAID WALL LINE, 77.42 FEET, MORE OR LESS TO THE POINT OF BEGINNING, AND SAID SPACE LYING BETWEEN THE CONCRETE FLOOR, ELEVATION 713 .63, AND THE CONCRETE CEILING, ELEVATION 726.57, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. EXHIBIT G (Form of Declaration of Covenants and Restrictions on Phase II Land) 21 DM 1\4555604.5 This document prepared by and return after recording to: David B. Yelin, Esq. Duane Morris LLP 190 South LaSalle Street, Suite 3700 Chicago, IL 60606-3433 DECLARATION OF COVENANTS AND RESTRICTIONS THIS DECLARATION OF COVENANTS AND RESTRICTIONS (this "Declaration") is made as of this 14th of August, 2014 (the "Effective Date") by FIRST AMERICAN BANK, not individually or personally, but solely as trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 ("Declarant"). RECITALS: A. Declarant is the owner of (i) 58 condominium units established pursuant to the Declaration of Condominium For The Fountain Square On The River Condominiums dated October 18, 2007 and recorded October 19, 2007 in the Office of the Recorder of Kane County, Illinois as Document No. 2007K106255, as the same may be amended, restated, modified or supplemented (the "Declaration") relating to the eight-story mixed-use residential and commercial building known as "Fountain Square on the River" located at 38-50 South Grove Avenue, Elgin, Illinois, which property is legally described on Exhibit "A" attached hereto (the "Improved Property") and (ii) certain vacant property located in the City of Elgin, Illinois adjacent to the Improved Property, which vacant property is presently used by the City as a parking lot and is legally described on Exhibit `B" hereto (the "Phase II Property"). B. Immediately following the execution and recording of this Declaration, pursuant to that certain Trustee's Deed dated as of the Effective Date, Declarant is conveying the Phase II Property to the City, subject to the terms of this Declaration. C. Declarant intends that for so long as the Declarant or a successor or assign which is a single entity or person that owns at least thirty one (3 1) Units (as defined in the Declaration) on the Improved Property the Phase II Property be developed pursuant to this Declaration and Declarant desires to establish for its own benefit, and for the benefit of a successor or assign to the Declarant which is a single entity or person that owns at least thirty one (3 1) Units on the Improved Property restrictions on the future development of the Phase II Property. NOW, THEREFORE, Declarant hereby declares that the Phase H Property and any and all parts thereof is and shall be owned, held, mortgaged, leased or otherwise encumbered, transferred, assigned, sold, conveyed and accepted subject to this Declaration, and declares that each of the following covenants and restrictions created hereunder shall exist at all times hereafter amongst, and be binding upon all parties having or acquiring any right, title, or interest DM 1\4546928.4 in or to any portion of, or interest or estate in, the Phase H Property and inure to the benefit of the Declarant or a successor or assign of the Declarant that is a single entity or person owning at least thirty one (3 1) Units on the Improved Property, and each of the foregoing shall run with the land subject to this Declaration, for the Term of this Declaration. ARTICLE I DEFINITIONS 1.01. Intentionally Omitted. 1.02. "City" shall mean the City of Elgin, Illinois, its successors and assigns. 1.03. "City Council" shall mean the City Council of the City of Elgin,Illinois. 1.04. "Declarant" shall mean and refer to FIRST AMERICAN BANK, not individually or personally,but solely as trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 and its successors and assigns. 1.05. "Improved Property" shall have the meaning given to such term in Recital A above and shall mean and refer to that certain real estate described in Exhibit "A" attached hereto and by this reference made a part hereof. 1.06. "Occupant" shall mean any person legally entitled to occupy and use any part or portion of a Tract(as hereinafter defined). 1.07. "Owner" shall mean and refer to the record owner, other than Declarant, whether one or more persons or entities,of fee simple title to any Tract. 1.09. "Person" shall mean a natural person, firm, corporation, partnership or any legal entity,public or private. 1.10. "Phase II Property" shall have the meaning given to such term in Recital A above and shall mean and refer to that certain real estate described in Exhibit `B" attached hereto and by this reference made a part hereof. 1.11. "Property" shall mean and refer to both the Improved Property and the Phase H Property. 1.12. "Term " shall have the meaning set forth in Section 4.01 hereof.. 1.13. "Trustee's Deed" shall mean the deed from Declarant conveying the Phrase H Property to the City. 1.14. "Units" shall have the meaning given to such term in the Declaration. 2 DM I\4546928.4 1.15. "Zoning Ordinance" shall mean the City of Elgin Zoning Ordinance provided for in Title 19 of the Elgin Municipal Code, as amended from time to time. ARTICLE II PURPOSE 2.01. Purpose. The Phase II Property is hereby made subject to the following conditions, covenants and restrictions, all of which shall be deemed to run with the Phase II Property for the Term set forth herein, to ensure the proper use and appropriate development and improvement of the Phase II Property for the purpose of preventing the development or use of the Phase II Property for any use incompatible with the residential and commercial Units on the Improved Property. ARTICLE III RESTRICTIONS GOVERNING IMPROVEMENTS 3.01. Improvements Generally. No improvement shall be constructed or erected on any portion of the Phase II Property unless it complies with the provisions of this Article III. 3.02. Prohibited Uses on the Phase II Property. The following uses otherwise allowed under the CC 1 center city district zoning as a "permitted use", a "conditional use" or as a "similar use" in the CC 1 center city district shall not be allowed or permitted as a principal use on the Phase II Property during the Term of this Agreement: Construction division: Exterior contractors,equipment areas,except as a temporary use in conjunction with construction activities on the property Transportation,communication and utilities division: Arrangement of transportation of freight and cargo Bus charter service operators' offices(if such charter service permits buses to be parked, loaded, services or used on the Phase II Property) Intercity and rural bus transportation operators' offices (if such bus transportation operators' offices permits buses to be parked,loaded, services or used on the Phase II Property) "Satellite dish antennas" School bus operators' offices (if such school bus operators' offices permits buses to be parked, loaded, services or used on the Phase II Property) Taxicab operators' offices (if such taxicab operators' offices permits taxicabs to be parked, loaded, services or used on the Phase II Property) "Treatment,transmission, and distribution facilities: poles,wires,cables,conduits, laterals,vaults, pipes,mains, and valves" 3 DM I\4546928.4 Miscellaneous uses division: Refuse transfer stations,whether or not completely enclosed) Conditional Uses: Services division: Fortune tellers Funeral service Steam baths Tattoo parlors Turkish baths Transportation,communication, and utilities division: "Conditional commercial antenna tower" Heliport Pipelines,except natural gas Public warehousing and storage Railroad tracks "Treatment,transmission, and distribution facilities: equipment,equipment buildings,towers, exchanges, substations, and regulators" Water transportation ARTICLE N MISCELLANEOUS SECTIONS 4.01. Term. This Declaration shall run for a term of thirty (30) years from the date this Declaration is recorded, after which time it shall automatically terminate and be null and void and the City of Elgin or its successors or assigns as to the Phase 11 Property shall have the right to execute and record an instrument terminating this Declaration, provided, however, that at such time, if any, as Declarant or a successor or assign which is a single entity or person owns less than thirty- one (3 1) Units on the Improved Property, the City of Elgin or its successors or assigns with respect to the Phase H Property shall have the right to execute and record an instrument terminating this Declaration, and no authorization, consent, approval or joinder of Declarant shall be required for such termination to be valid and effective, provided, however that such instrument of termination shall contains the certification by the Mayor of the City that the Declarant or such a successor or assign no longer owns at least thirty-one (3 1) Units within the Improved Property. 4.02. Enforcement. The covenants and restrictions of this Declaration shall run with the land and be binding upon and inure to the benefit of Declarant, and a successor or assign which is a single entity or person that owns at least thirty one (3 1) Units on the Improved Property. The enforcement of the provisions of this Declaration shall be vested in Declarant so long as it owns at least thirty-one (3 1) Units within the Improved Property. A breach of any of the provisions of this Declaration shall give to the party entitled to enforce such provision the right to bring a proceeding in law or in equity against the party or parties breaching or attempting to breach the Declaration and 4 DM 1\4546928.4 to enjoin such party or parties from so doing or to cause such breach to be remedied. A breach of this Declaration relating to the use or maintenance of a Tract or part thereof is hereby declared to be and constitute a nuisance and every public or private remedy allowed by law or equity for the abatement of a public or private nuisance shall be available to remedy such breach. All remedies provided under this Declaration including those at law or in equity shall be cumulative and not exclusive. The failure of a party having a right to enforce this Declaration to so do shall not be deemed a waiver of the right of any other party having such right nor a waiver to do so for a subsequent breach or the right to enforce any other provision of this Declaration. No party having the right to enforce this Declaration shall be liable for failure to enforce this Declaration. 4.03. Severability. If any of the covenants, conditions or terms of this Declaration shall be found void or unenforceable for whatever reason by any court of law or of equity, then every other covenant, condition or term herein set forth shall remain valid and binding provided that in such event Declarant and all of the then Owners of the Property shall to the fullest extent possible modify such covenant, condition or term to the extent required to carry out the general intention of this Declaration and to impart validity to such covenant,condition or term. 4.04. Rule against Perpetuities. If and to the extent that any of the covenants herein would otherwise be unlawful or void for violation of(a) the rule against perpetuities, (b) the rule restricting restraints on alienation, or (c) any other applicable statute or common law rule analogous thereto or otherwise imposing limitations upon the time for which such covenants may be valid, then the provision concerned shall continue and endure only until the expiration of a period of twenty-one (2 1) years after the death of the last to survive of the class of persons consisting of all of the lawful descendants of George H. W. Bush,living at the date of this Declaration. 4.05. Notices. Any notices required to be sent under the provisions of this Declaration shall be delivered by (i) U. S. mail, as by registered or certified mail, return receipt requested, postage prepaid, or by nationally recognized overnight courier service such as FedEx or UPS. Notices delivered by U.S. registered or certified mail, return receipt requested, postage prepaid shall be deemed to have been received three (3) days after being deposited in the U.S. mail. Notices delivered by nationally recognized overnight courier service such as FedEx or UPS shall be deemed to have been received one (1) business day after being deposited with such overnight courier service. All such notices shall be addressed as follows: (i) if to the Declarant, at 218 West Main Street, Dundee, Illinois 60118, with a copy simultaneously delivered to Declarant c/o First American Bank, 1650 Louis Avenue, Elk Grove, Illinois 60007, Attention: General Counsel; (ii)if to a successor or assign that is a single entity or person that owns at least thirty one (3 1) Units in the Improved Property, at the last known address of such person or entity; or (iii) if to the City of Elgin at 150 Dexter Court, Elgin, Illinois 60120, Attention: City Manager, with a copy simultaneously delivered to the City of Elgin at 150 Dexter Court, Elgin, Illinois 60120, Attention: Corporation Counsel. 4.06. Binding Effect of Declaration. All the rights, covenants and restrictions herein contained shall run with the land and shall inure to the benefit of Declarant and a successor or assign that is a single entity or person that owns at least thirty one (3 1) Units on the Improved Property, and shall be binding upon each subsequent holder of any interest in any portion of the Phase II Property and their grantees, heirs, successors, personal representatives and assigns with the same 5 DM l\4546928.4 full force and effect for all purposes as though set forth at length in each and every conveyance of the Property or any part thereof. Reference in the respective deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation, to the easements and covenants herein described shall be sufficient to create and reserve such easements and covenants to the respective grantees, mortgagees or trustees of such parcels as fully and completely as though said easements and covenants were fully recited and set forth in their entirety in such documents. 4.07. Captions. The title, headings and captions which have been used throughout this Declaration are for convenience only and are not to be used in construing this Declaration or any part thereof. 4.08. Governing Law. This Declaration shall be construed and applied in accordance with the laws of the State of Illinois. (signatures on following page) 6 DM 1\4546928.4 IN WITNESS WHEREOF, the Declarant has caused these presents to be executed as of the Effective Date set forth in the introductory paragraph on the first page of this Declaration. DECLARANT: FIRST AMERICAN BANK, not individually or personally, but solely as trustee under a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 By: N Ti e: Vice President-Trust By: Name: Rosanne M.DUPON - - Title: Vice President-Trust STATE OF ILLINOIS ) SS COUNTY OF Kh V e ) I, the undersigned, a Notary Public in, and for the County and State aforesaid,. DO `Rt 11�N,DPW _._T John T.Matelcak - e nd H ,O WY THAT ��� t Officer as I�f Vim Pmaldent-Trust omeer as s)i Le-Res; rf o fA cw of FIRST AMERICAN BANK, not individually or personally, but solely as Trustee under the provisions of a Trust Agreement dated August 19, 2009 and known as Trust Number 1-09-124 who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged to me that they signed and delivered the said instrument in their capacity as trust officers of said Trust, as their own free and voluntary act, and as the free and voluntary act of said Trust as aforesaid, for the uses and purposes therein set forth. Given under my hand and official seal this Jq�of ust, 2014. Notary Public My Commission Expires: zo ENOTARY IAL SEAL SI KAYE -STATE OF ILLINOIS ON EXPIRES:01/28/15 7 DMI\45469283 Exhibit"A" Legal Description of Improved Property UNIT NUMBERS 201, 202, 203, 204, 205, 206, 207, 208, 303, 304, 305, 306, 308, 309, 314, 315, 316, 401, 404, 405, 406,408, 409, 414,422, 502, 503, 505, 506, 508, 513, 516, 521, 522, 603, 604, 605, 606, 607, 608, 609, 613, 614, 616, 703, 704, 705, 706, 708, 709, 712, 801, 804, 805, 806, 808, 809, 810 AND PARKING UNITS P-1, P-12, P-19, P-20, P-22, P-26, P-27, P-28, P-29, P-31 THRU P-51, P-53, P-56, P-58, P-60, P-65, P-66, P-68, P-70, P-71, P-72, P-73, P-74, P-75, P-76, P-77, P-78, P-79, P-82, P-83, P-84, P-85, P-89, P-90, P-93, P-95, P-97, P-98, P-99, P-100, P-101, P-102, P-103, P-105, P-106, P-107, P-108 AND PARKING UNITS M-1, M-2, M- 3, M-4, M-5 AND M-6 IN THE FOUNTAIN SQUARE ON THE RIVER CONDOMINIUMS, AS DELINEATED ON A PLAT OF SURVEY OF THE FOLLOWING DESCRIBED TRACT OF LAND: PART OF THE SOUTHEAST 1/4 OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN CITY OF ELGIN, KANE COUNTY, ILLINOIS. WHICH PLAT OF SURVEY IS ATTACHED AS EXHIBIT TO THE DECLARATION OF CONDOMINIUM RECORDED OCTOBER 19, 2007 AS DOCUMENT NUMBER 2007K106255; TOGETHER WITH ITS UNDIVIDED PERCENTAGE INTEREST IN THE COMMON ELEMENTS. 8 DM 1\4546928.4 Exhibit B" Legal Description of Phase II Property (Parking Lot Property) Lots 1, 2, 3, 4, 5, and 6 and part of Lot 10 of B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River; Lots 1, 2, and part of Lot 3 of McOsker's Subdivision of Lots 7, 8, 9, 10, and 10-1/2 of B.W. Raymond's Subdivision of Lot 1 in Block 21 of the Original Town of Elgin, and that portion of land lying between Lot 9 and Fox River; also part of the vacated alley lying on the southerly portion of said McOsker's Subdivision; also part of Lot 2 in Block 21 of the Original Town of Elgin, on the east side of Fox River, all of the foregoing being described as a tract as follows: Beginning at a point in the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid, 95 feet southwesterly, measured along said southerly line, from the westerly line extended of Lot 4 of B.W. Raymond's Subdivision; thence northwesterly, parallel with said westerly line extended of said Lot 4, a distance of 42 feet; thence northwesterly to a point on the westerly line of Lot 2 of McOsker's Subdivision, 105 feet northwesterly from the southwesterly corner thereof; thence northwesterly along the westerly line of Lot 2 of McOsker's Subdivision to the northwesterly corner thereof and the south line of Chicago Street; thence east along said south line of Chicago Street to the westerly line of Grove Avenue; thence southeasterly along said westerly line of Grove Avenue to the southeast corner of Lot 2 in Block 21 aforesaid; thence westerly along the southerly line of said Lot 2 to the easterly line of Riverside Avenue; thence northerly along said easterly line to the southerly line of the northerly 22 feet of Lot 2 in Block 21 aforesaid; thence northeasterly along said southerly line to the Point of Beginning, in the City of Elgin, Kane County, Illinois. Lot 11 and that part of Lot 28 lying easterly of the easterly line of Riverside Avenue and that part of the vacated alley lying between said Lots 11 and 28, all in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 of Block 21 of the Original Town of Elgin, on the east side of Fox River, in the City of Elgin, Kane County, Illinois. That part of Lots 12 and 27 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River, and the vacated alley lying between said Lots 12 and 27, lying between the westerly line of South Grove Avenue and the easterly line of Riverside Avenue, in the City of Elgin, Kane County, Illinois. Lots 13, 14, 15, 16, 23, 24, 25, and 26 and the vacated 20-foot alley adjoining said lots in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River, in the City of Elgin, Kane County, Illinois. That part of Lots 17, 18, and 22 lying northwesterly of the face of the Fountain Square on the River Condominium concrete retaining wall and building (except that part of said lots, if any, falling within Riverside Avenue) of B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River in the East Fraction of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal Meridian; also, all that part of an alley 20 feet wide (now vacated) in said subdivision, which lies between said Lots 22 and 17 and south of the north line of said lots extended across said alley, all in the City of Elgin, Kane County, Illinois, described as follows: 9 DM 1\4546928.4 Beginning at the northwesterly corner of said Lot 22; thence on an assumed bearing of North 56 degrees 29 minutes 55 seconds East, 182.27 feet along the northwesterly line of said Lots 22 and 17 and the extension thereof through the vacated alley between said Lots 22 and 17 to the northeast corner of said Lot 17; thence South 33 degrees 29 minutes 00 seconds East, 36.76 feet along the northeasterly line of Lots 17 and 18 to the northeasterly extension of the northerly building line of the Fountain Square on the River Condominium; thence along said extension and the northerly building and retaining wall line the following seven courses: South 56 degrees 32 minutes 12 seconds West, 37.65 feet; thence North 33 degrees 52 minutes 15 seconds West, 10.99 feet; thence South 56 degrees 36 minutes 04 seconds West, 25.88 feet; thence North 33 degrees 13 minutes 30 seconds West, 9.91 feet; thence South 59 degrees 00 minutes 42 seconds West, 0.80 feet; thence South 30 degrees 20 minutes 44 seconds East, 1.02 feet; thence South 56 degrees 32 minutes 42 seconds West, 118.07 feet to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67' along said southwesterly line to the Point of Beginning. That part of Riverside Avenue in the East Half of the Southeast Quarter of Section 14, Township 41 North, Range 8 East of the Third Principal Meridian in the City of Elgin, Kane County, Illinois, described as follows: Beginning at the southwesterly corner of Lot 23 in B.W. Raymond's Subdivision of Lots 1, 3, 4, and 5 in Block 21 of the Original Town of Elgin, on the east side of Fox River; thence on an assumed bearing of North 32 degrees 47 minutes 16 seconds West, 165.19 feet along the northeasterly right-of-way of Riverside Avenue; thence continuing along said right-of-way the following four courses: North 56 degrees 31 minutes 00 seconds East, 5.27 feet; thence North 33 degrees 29 minutes 00 seconds West, 42.00 feet; thence North 27 degrees 23 minutes 16 seconds West, 103.59 feet; thence North 33 degrees 29 minutes 00 seconds West, 23.16 feet; thence South 66 degrees 09 minutes 03 seconds West, 1.72 feet along the southwesterly extension of the southerly line of Chicago Street; thence South 25 degrees 19 minutes 30 seconds East, 128.97 feet to a line 184.00 feet southwesterly of and parallel with the southwesterly line of South Grove Avenue; thence South 33 degrees 29 minutes 00 seconds East, 222.64 feet along said parallel line to the northerly face of the Fountain Square on the River Condominium concrete retaining wall; thence North 56 degrees 32 minutes 42 seconds East, 1.53 feet along said retaining wall to the southwesterly line of said Lot 22; thence North 32 degrees 47 minutes 16 seconds West, 16.67 feet along said southwesterly line to the Point of Beginning. 10 DM I\4546928.4