16-121 Resolution No. 16-121
RESOLUTION
RATIFYING THE EXECUTION OF A COLLATERAL ASSIGNMENT
OF REDEVELOPMENT AGREEMENT WITH ELGIN TOWER, LLC, AS
SUCCESSOR IN INTEREST THEREUNDER TO CAPSTONE
DEVELOPMENT GROUP, L.L.C., AND MIDLAND STATES BANK
(100 E. Chicago Street)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that it
hereby ratifies and approves the execution of a collateral assignment of redevelopment agreement
with Elgin Tower,LLC,as successor in interest thereunder to Capstone Development Group,L.L.C.,
and Midland States Bank, by Richard G. Kozal, City Manager, a copy of which is attached hereto
and made a part hereof by reference.
BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that it hereby ratifies and approves the execution of a memorandum of the foregoing
collateral assignment by Richard G. Kozal, City Manager,and Kimberly Dewis, City Clerk,a copy
of which is attached hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: September 14, 2016
Adopted: September 14, 2016
Vote: Yeas: 8 Nays: 0 Abstain: 1
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
COLLATERAL ASSIGNMENT OF REDEVELOPMENT AGREEMENT
THIS COLLATERAL ASSIGNMENT OF REDEVELOPMENT AGREEMENT (this
"Assignment") dated as of August 18, 2016, is executed by among the CITY OF ELGIN,
ILLINOIS, an Illinois municipal corporation (the "City") and ELGIN TOWER LLC, an
Illinois limited liability company ("Assignor'), with an address of 101 South Hanley Road,
Clayton, Missouri 63105, as successor in interest thereunder to CAPSTONE
DEVELOPMENT GROUP, L.L.C., a Missouri limited liability company ("Capstone"), in
favor of MIDLAND STATES BANK, an Illinois state chartered bank (together with its
successors and assigns, "Assignee'), having an address at 1540 Illinois Route 59, Joliet,
Illinois 60431.
RECITALS:
The following recitals form a material part of this Assignment.
A. Assignee has agreed to make a loan in the aggregate original principal amount
of up to $10,500,000.00 to Borrower(the"Loan"),evidenced by a certain Promissory Note in
said principal amount, made and executed by Borrower and payable to the order of Assignee
(together with all modifications, amendments, renewals, extensions, replacements,
restatements, supplements and substitutions therefor,the"Note").
B. The Loan will be secured by, among other things, a certain Loan Agreement by
and between Borrower and Assignee dated as of even date herewith (together with all
modifications, amendments, renewals, extensions, replacements, restatements, supplements
and substitutions therefor,and any and all exhibits, schedules, and addenda thereto,the "Loan
Agreemenf') and a certain Mortgage, Assignment of Leases and Rents, Security Agreement
and Fixture Filing granted by Borrower for the benefit of Assignee, dated as of even date
herewith (together with all modifications, amendments, renewals, extensions, replacements,
restatements, supplements and substitutions therefor, and any and all exhibits, schedules, and
addenda thereto, the "Mortgage") encumbering certain real property and improvements
thereon located in the City of Elgin, Illinois, which property is more particularly described
in Exhibit A attached hereto and incorporated herein by reference(the"Land").The Note,the
Loan Agreement, the Mortgage, the Security Documents (as defined in the Loan Agreement),
and all other documents, agreements, instruments, and affidavits now or hereafter evidencing,
securing, guaranteeing, executed and/or entered into in connection with the Loan are
collectively referred to herein as the"Loan Documents".
C. The Loan proceeds will be used to finance the rehabilitation and reuse of the
property commonly known as Elgin Tower and located at 100 East Chicago Street in Elgin,
Illinois 60120, for market rate apartments being constructed by Borrower, pursuant to the
sources and uses approved by Assignee(and together with the Land,the"fMiecf').
D. The Land (and where applicable the Project) is subject to that certain
Redevelopment Agreement by and between Assignor and the City dated October 8, 2014
(together with all modifications, amendments, renewals, extensions, replacements,
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restatements, supplements and substitutions therefor, and any and all exhibits, schedules, and
addenda thereto, the "Redevelopment Agreement'), for, in part, of the construction,
improvement and equipping of the Property in respect of the Project and wherein the City
agreed to provide Assignor certain monetary development assistance and/or reimbursement of
certain eligible Projects costs in the amount of Six Million Three Hundred Fifty Thousand and
00/100 Dollars ($6,350,000.00) (together with any and all other amounts or sums paid,
reimbursed or disbursed to Assignor under the Redevelopment Agreement, collectively, the
"TIF Proceeds") in order to incent and facilitate the proposed to finance the rehabilitation and
reuse of the Land for market rate apartments, pursuant to the terms contained in the
Redevelopment Agreement.
E. Capstone, as the former Developer under and pursuant to the Redevelopment
Agreement, previously assigned its rights, title and interests as the Developer thereunder to
Assignor,and Assignor accepted such assignment.
F. As a condition to the making of the Loan, Assignee has required that Assignor
pledge, assign, convey, transfer and grant to Assignee, and Assignor has agreed to pledge,
assign, convey, transfer and grant to Assignee, a security interest in, and all right, title and
interest of Assignor in, to and under, the Redevelopment Agreement and amounts due
thereunder as additional security and collateral for the payment and performance by Borrower
under the Loan and all of Borrower's obligations under the Loan Agreement,the Note and the
other Loan Documents.
G. Assignor, Borrower and the City will directly benefit from the extension of the
Loan under the Note and the other Loan Documents for the redevelopment of the Land in
respect of the Project and from the completion of the Project.
NOW, THEREFORE, in consideration of the foregoing premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby act and agree as follows:
AGREEMENT:
1. Agreement. Assignor hereby pledges, grants, transfers and assigns to Assignee
all of its rights, title, interests and benefits in, to and under the Redevelopment Agreement
including, without limitation,Assignor's rights to and to receive the TIF Proceeds, pursuant to
the terms of the Redevelopment Agreement. Assignee hereby grants to Assignor a revocable
license to, except as otherwise herein provided, enjoy the benefits of and enforce the
Redevelopment Agreement. So long as there exists no Event of Default (as hereinafter
defined) beyond any applicable grace or cure period, and except as otherwise herein provided,
Assignor will have the right under the license hereby granted to so enjoy the benefits of and
enforce the Redevelopment Agreement.
Borrower,Assignor and the City covenant and agree to deposit all payments, revenues,
or sums collected, received, paid, reimbursed, or disbursed under the Redevelopment
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Agreement in respect of any TIF Proceeds be deposited into the Reserve Accounts under the
Loan Agreement.
This Assignment is given for the purpose of securing any and all obligations and
liabilities of Assignor to Assignee, whether direct or indirect, joint or several, absolute or
contingent, now or hereafter existing, and however created, evidenced or arising, including,
but not limited to, the payment of all sums, including, without limitation, the payment of
principal and interest,due under the Note,the Loan Agreement,any other Loan Documents, or
any other documents, agreements and instruments in connection therewith, which are now or
at any time due Assignee thereunder, and the performance and discharge of the obligations,
covenants, conditions and agreements contained herein and in the Note, the Loan Agreement
any other Loan Documents, or any other documents in connection therewith, or any
modifications, amendments, restatements, extensions, renewals or substitutions of any of the
foregoing.This Assignment further secures any and all sums advanced by Assignee in order to
preserve the collateral pledged herein or to perfect its security interest in such collateral,and in
the event of any proceeding to enforce the collection of the obligations, the reasonable
expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or
realizing on the collateral or of any exercise by Assignee of its rights in the event of a default
under any agreement between Assignor and Assignee,together with reasonable attorneys' fees
and costs.
2. Obligations, Defaults; Liability; Further Assignment. Assignor and the City
agree:
(a) That, to the extent applicable, it shall faithfully abide by, perform and
discharge each and every material obligation, covenant, condition and agreement of the
Redevelopment Agreement to be performed by Assignor thereunder, and, to the extent
applicable, it shall faithfully abide by, perform and discharge each and every material
obligation, covenant, condition and agreement of the City to be performed by the City
thereunder, and to enforce, in a commercially reasonable manner, performance by the
other party of each and every material obligation, covenant, promise, condition and
agreement to be performed by such other thereunder.
(b) That the occurrence of any of the following shall constitute an "Event
o De aulf'hereunder:
i. any default by Assignor or the City in the observance or
performance of any obligation, covenant, promise, condition or agreement
under the Redevelopment Agreement;
ii. any default by Assignor or the City in the observance or
performance of any obligation, covenant, promise, condition or agreement
hereof;
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iii. any representation or warranty made by Assignor or the City
herein which is not true and correct in any material respect as of the date
hereof;or
iv. the occurrence of any Event of Default (however defined or
described) under any of the Loan Documents including, without limitation, the
Loan Agreement or the Note.
(c) That any Event of Default hereunder, as provided above, shall be
deemed to be an Event of Default under all of the Loan Documents, including, without
limitation, the Note. Upon the occurrence of any Event of Default hereunder,Assignee
shall have the right (but not the obligation), without notice to or demand on Assignor
or the City: (1) to declare all amounts outstanding under the Note and all other sums
evidenced or secured by the Loan Documents, to be immediately due and payable; (2)
to exercise any and all rights and remedies provided under the Loan Documents, or
hereunder as well as such remedies as may be available at law or in equity; and (3) to
correct any such default in such manner and to such extent as Assignee may deem
necessary to protect the security hereof, including, without limitation,the right(but not
the obligation) to appear in and defend any action or proceeding purporting to affect
the security hereof or the rights or powers of Assignee, and also the right (but not the
obligation) to perform and discharge each and every obligation, covenant, condition
and agreement of Assignor under the Redevelopment Agreement, and, in exercising
any such powers, to pay necessary costs and expenses, employ counsel and incur and
pay attorneys' fees and expenses. Assignee shall not be obligated to perform or
discharge,nor does it hereby undertake to perform or discharge,any obligation, duty or
liability under the Redevelopment Agreement, or by reason of this Assignment.
(d) That at any time after the occurrence of an Event of Default, Assignee
may, at its option, without notice, and without regard to the adequacy of security for
the indebtedness hereby secured, either in person or by agent, with or without bringing
any action or proceeding, or by a receiver to be appointed by a court at any time
hereafter, enforce for its own benefit this Assignment and/or any of the Redevelopment
Agreement against Assignor and the City in Assignee's sole and absolute discretion.
(e) Upon the occurrence of an Event of Default under this Assignment, the
Redevelopment Agreement or any of the Loan Documents, Assignee shall have the
right, power and privilege (but shall be under no duty) to terminate the license granted
to Assignor hereunder and thereupon Assignee may exercise any and all rights and
remedies and undertake any and all actions which would be available to Assignor
under the Redevelopment Agreement. Assignor and the City hereby specifically
authorize Assignee, and hereby irrevocably constitute and appoint Assignee as
Assignor's agent and attorney-in-fact, in Assignor's name, to do any of the foregoing,
said power of attorney being coupled with an interest and not revocable by insolvency,
bankruptcy, death, dissolution or otherwise. The exercise of any rights under this
Assignment shall not be deemed to cure or waive any default under any of the Loan
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Documents, or waive, modify or affect any notice of default under any of the Loan
Documents, or invalidate any act done pursuant to such notice.
(f) That Assignee, upon written notice from Assignee to Assignor and the
City of the occurrence of an Event of Default, shall be, and hereby is, authorized by
Assignor and the City to perform any obligation under the Redevelopment Agreement
for the benefit of Assignee in accordance with the terms and conditions thereof without
any obligation to determine whether or not such an Event of Default has in fact
occurred including, without limitation, payment of the TIF Proceeds to Assignee,
without setoff or demand and without need or demand for any other waiver, release,
agreement or document by or from Assignor or the City in evidence thereof or
authority therefor.
(g) That in the exercise of the powers herein granted to Assignee, no
liability shall be asserted or enforced against Assignee, all such liability being hereby
expressly waived and released by Assignor. Assignor hereby agrees to indemnify,
defend and hold Assignee free and harmless from and against any and all liability,
obligation, cause of action, claim, expense, cost, loss or damage which Assignee may
incur by reason of any act or omission of Assignor under the Redevelopment
Agreement, or under or by reason of this Assignment and of and from any and all
claims and demands whatsoever which may be asserted against it by reason of any
alleged obligations or undertakings on Assignee's part to perform or discharge any of
the terms, covenants or agreements contained in the Redevelopment Agreement.
Should Assignee incur any liability, expense, cost, loss or damage (1) under the
Redevelopment Agreement for which it is to be indemnified by Assignor as aforesaid,
or (2) by reason of the exercise of Assignee's rights hereunder (including but not
limited to the exercise of the rights granted to Assignee under Section 2(c) hereof),
then the amount thereof, including, but not limited to, costs and expenses (including
litigation costs and reasonable attorneys' fees and disbursements), damages,
obligations and liabilities of any nature whatsoever, shall be added to the indebtedness
evidenced by the Note and secured hereby and the other Loan Documents (regardless
of whether such indebtedness, when aggregated with other sums secured thereby, then
increases the outstanding balance of the Note to an amount in excess of the face
amount thereof) and shall (i) be due and payable immediately upon demand by
Assignee, and (ii)bear interest at the Default Rate set forth in the Note.
(h) That this Assignment shall be assignable by Assignee to any assignee of
Assignee and all representations, warranties, covenants, powers and rights herein
contained shall be binding upon, and shall inure to the benefit of, Assignor, the City
and Assignee and their respective legal representatives, successors and permitted
assigns, including, in the case of Assignee, all holders, from time to time, of the Note.
(i) That Assignor will cause the City to deposit any amounts owed to
Assignor pursuant to the Redevelopment Agreement directly with Assignee in
repayment of amounts due under the Note.
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3. Additional Covenants, Representations. Assignor and the City, where
applicable, further hereby covenants and represents to Assignee that:
(a) A true, correct and complete copy of the Redevelopment Agreement is
attached hereto as Exhibit B and the same has not been modified, amended, restated,
or supplemented, except as indicated in the copy thereof attached hereto;
(b) The Redevelopment Agreement is in full force and effect;
(c) Assignor and the City will not modify, amend or terminate the
Redevelopment Agreement after the date hereof without the prior written consent of
Assignee;
(d) Assignor and the City has not previously assigned, sold, pledged,
transferred, conveyed, mortgaged, hypothecated or otherwise encumbered any of the
Redevelopment Agreement, or its right, title and interest therein, except as specifically
provided in this Assignment to Assignee, and shall not further do so;
(e) Assignor and the City has not performed and will not perform any act
which might prevent Assignor or the City from performing its undertakings hereunder
or which might prevent Assignee from operating under or enforcing any of the terms
and conditions hereof or which would limit Assignee in such operation or enforcement;
(f) Assignor and the City is not in default under the Redevelopment
Agreement, and to the best knowledge of Assignor and the City, no other party is in
default under the Redevelopment Agreement, and no event has occurred which with
the passage of time or the giving of notice, or both,would constitute any such default;
(g) Assignor and the City has received no notice of any repudiation,
rescission or revocation of the Redevelopment Agreement or any part thereof by any
other party thereto;
(h) The Redevelopment Agreement has been authorized by the City
pursuant to the adoption by the City Council of the City of Elgin Ordinance Nos. S6-
99, S 1-02, 52-02, S3-02 and 54-02 proposing, approving and creating the Elgin
Central Area Tax Increment Financing Redevelopment Plan and Project (the "ECA
TIF District") pursuant to the Tax Increment Allocation Redevelopment Act at 65
ILCS 5111-74.4-1, et seq.,on or about April 10,2002.
(i) All necessary or appropriate consents and authorizations to, and
execution of, this Assignment under the Redevelopment Agreement or otherwise have
been obtained;
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(j) Assignor and the City will observe and perform all of its obligations,
covenants, promises, and agreements to be performed by Assignor and the City under
the Redevelopment Agreement; and
(k) None of the following events have occurred: (1) the filing of a petition
in bankruptcy, insolvency or reorganization, or for the appointment of a receiver or
trustee, affecting Assignor or the City, to the actual or constructive knowledge of
Assignor and the City, any other party to the Redevelopment Agreement, and (2) the
making of an assignment by Assignor or the City or, to the actual or constructive
knowledge of Assignor and the City,any other party to the Redevelopment Agreement,
for the benefit of its respective creditors.
A breach of any of the foregoing representations, warranties or covenants shall
constitute an Event of Default under the Loan Agreement.
4. Release of Security. This Assignment is made for collateral purposes only and
the duties and obligations of Assignor and the City under this Assignment shall terminate and
be released when all sums due Assignee under the Loan Documents are paid in full.
5. Security Agreement.Assignor and the City agree:
(a) (1)That this Assignment shall constitute a"Security Agreement"within
the meaning of the Uniform Commercial Code of the State of Illinois (the "Code")
with respect to all of Assignor's rights, title and interests, whether now existing or
hereafter arising or acquired, in, to and under the Redevelopment Agreement, and all
replacements, substitutions and additions thereto, and the proceeds thereof (said
Redevelopment Agreement and the proceeds thereof being collectively referred to in
this Section 5 as the"Collateral"); (2)that a security interest in and to the Collateral is
hereby granted to Assignee; and (3) that all of Assignor's rights, title and interests in,
to and under the Collateral hereby assigned to Assignee is to secure payment of the
indebtedness evidenced by, and to secure performance by Assignor of the terms,
provisions, duties, covenants and obligations of, the Note and the other Loan
Documents.
(b) If an Event of Default occurs hereunder, Assignee shall have all
remedies available to a secured party under the Code and ten (10) days' notice of the
sale of the Collateral shall be reasonable notice. The reasonable expenses of preparing
for sale, selling and the like incurred by Assignee shall include, but shall not be limited
to,reasonable attorneys' fees and costs and disbursements incurred by Assignee.
(c) This Assignment shall be self-operative with respect to the security
interest granted in the Collateral, but Assignor, upon request by Assignee from time to
time, agrees to execute, acknowledge and deliver to Assignee a separate security
agreement, financing statement or other similar security instruments, in a form
satisfactory to Assignee, covering the Collateral, whenever in the sole opinion of
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Assignee there may be any doubt whether the title to same has been conveyed by or
security interest perfected by this Assignment under the laws of the State of Illinois,
and will further execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered, any financing statement, affidavit, continuation statement
or certificate or other document as Assignee may request in order to perfect, preserve,
maintain, continue and extend the security interest under and the priority of this
Assignment and such security instrument. Assignor further agrees to pay to Assignee
on demand all costs and expenses incurred by Leader in connection with the
preparation, execution, recording, filing and re-filing of any such document. To the
extent permitted by the provisions of the Code, now or hereafter in effect, Assignor
hereby authorizes Assignee, without the signature of Assignor, to execute and file any
of the documents described in this Section 5 if Assignee shall determine that such are
necessary or advisable in order to perfect Assignee's security interest in the Collateral.
6. Subordination of Assignor's Interest in the Redevelopment Agreement. So long
as there exists an Event of Default beyond any applicable grace or cure period, Assignor will
not be entitled to receive any portion of the TIF Proceeds unless and until the full amount due
under the Note and the other Loan Documents is paid and satisfied, and performed and
discharged, and fulfilled in full including, without limitation, payment to Assignee of all
principal, accrued interest, fees and expenses due thereunder. So long as there exists an Event
of Default (as herein defined), any portion of the T1F Proceeds received by Assignor must be
paid over to Assignee immediately upon receipt by Assignor and will be held in escrow by
Assignee as security for repayment of the Loan. So long as there exists no Event of Default
beyond any applicable grace or cure period, and except as otherwise herein provided,
Assignor, will have the right under the license hereby granted to have access to the TIF
Proceeds to be held in escrow with Lender, plus any interest accrued thereon, for the uses and
purposes of the TIF Proceeds pursuant to the terms and conditions of the Redevelopment
Agreement. Upon the occurrence of an Event of Default and the expiration of any applicable
cure period, Assignee is authorized, without further notice to Assignor, to apply all or a
portion of the TIF Proceeds then in escrow, plus any interest accrued thereon, to the
outstanding balance of the Loan including, but not limited to, principal, accrued interest, fees,
costs, expenses, and charges, in any manner Assignee may elect in its sole and absolute
discretion. Any TIF Proceeds paid or reimbursed to, or received or collected by, Assignor
under the Redevelopment Agreement in violation of the terms of this Assignment must be held
in trust for the benefit of Assignee.
7. Notices. All notices, demands, requests and other communications which are
required or permitted to be given hereunder shall be in writing and shall be deemed
sufficiently given when delivered or mailed in the manner set forth in the Loan Agreement.
8. Governing Law; Venue. This Assignment will be construed according to its fair
meaning as if prepared by all parties to this Assignment. This Assignment will be construed in
accordance with the laws of the State of Illinois, without regards to its conflict of laws
provisions. The parties agree to submit to the jurisdiction of any state or federal court having
competent jurisdiction located in the State of Illinois, and to make no objection to venue
therein should any action at law or in equity be necessary to enforce or interpret this
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Assignment (except that Assignee shall have the right to bring any action or proceeding
against Assignor,the City,or any guarantor or assignor or indemnitor or any party hereto or its
or their property in the courts of any other jurisdiction, state or federal, which Assignee deems
necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights
and remedies against Assignor, the City, or any guarantor or assignor or indemnitor or any
party hereto or its or their property under the Loan Documents), and Assignor, the City and
Assignee acknowledge that any appeals from the courts described in the immediately
preceding sentence may have to be heard by a court located outside those jurisdictions. If any
action at law or in equity is necessary to enforce or interpret the terms of this Assignment, the
prevailing party in such action will be entitled to have and to recover from the other party its
reasonable attorneys' fees and other reasonable expenses in connection with such action or
proceeding in addition to its recoverable court costs.
9. Ca_ tom. The captions of this Assignment are for purposes of convenience
only and are not intended to be a part of this Assignment and shall not be deemed to modify,
explain, enlarge or restrict any of the provisions hereof.
10. No Third Party Rights. It is expressly intended, understood and agreed that this
Assignment, and the other Loan Documents, are made and entered into for the sole protection
and benefit of Assignee, and their respective legal representatives, successors and assigns;that
no other person shall have any right at any time to action hereon or rights to the proceeds of
the Loan; that the Loan proceeds do not constitute a trust fund for the benefit of any third
party; and that no third party shall under any circumstances be entitled to any equitable lien on
any undisbursed Loan proceeds at any time.
11. No Joint Venture.The relationship between or among Assignee,the City and/or
Assignor is solely that of an assignee and assignor, and nothing contained herein shall in any
manner be construed as making the parties hereto partners, joint venturers or any other
relationship other than assignee and assignor.
12. Severability. The parties hereto intend and believe that each provision in this
Assignment comports with all applicable local, state or federal laws and judicial decisions.
However, if any provision or provisions, or if any portion of any provision or provisions, in
this Assignment is found by a court of law to be in violation of any applicable local, state or
federal ordinance, statute, law, administrative or judicial decision or public policy, and if such
court should declare such portion, provision or provisions of this Assignment to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of the parties hereto
that such portion,provision or provisions shall be given force to the fullest possible extent that
they are legal, valid and enforceable, that the remainder of this Assignment shall be construed
as if such illegal, invalid, unlawful, void or unenforceable portion, provision or provisions
were not contained therein and that the rights, obligations and interests of the parties hereto
under the remainder of this Assignment shall continue in full force and effect.
13. Rights and Remedies Cumulative;Non-Waiver. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies which Assignee has under
the Note, the Mortgage, the Loan Agreement or the other Loan Documents, or any other
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document, instrument or agreement, or would otherwise have at law or in equity.No course of
dealing between or among Assignor, the City and/or Assignee or any failure or delay on the
part of Assignee in exercising any rights or remedies hereunder shall operate as a waiver of
any rights or remedies of Assignee and no single or partial exercise of any rights or remedies
hereunder shall operate as a waiver or preclude the exercise of any other rights or remedies
hereunder.
14. No Waiver. Waiver of or acquiescence by Assignee in any default by Assignor
or the City, or failure of Assignee to insist upon strict performance by Assignor or the City of
any warranties, agreements or other obligations contained in this Assignment, shall not
constitute a waiver of any subsequent or other default, failure or waiver of strict performance,
whether similar or dissimilar.
15. Costs of Enforcement. In the event that Assignee shall retain or engage an
attorney or attorneys to collect or enforce or protect its interests with respect to this
Assignment or any instrument or document delivered pursuant to this Assignment, including
the representation of Assignee in connection with any bankruptcy, reorganization, receivership
or any other action affecting creditor's rights, and regardless of whether a suit or action is
commenced, Assignor and the City shall pay all of the reasonable costs and expenses of such
collection, enforcement or protection, including reasonable attorneys' fees, and Assignee may
take judgment for all such amounts.
16. Fees and Expenses. Assignor shall pay all out-of-pocket costs and expenses,
including attorneys' fees and expenses, incurred by Assignee in connection with the
preparation of this Assignment and any document or instrument delivered pursuant to or in
connection with this Assignment and all related documentation, recording or filing fees.
Assignor shall also pay all like costs and expenses incurred by Assignee in connection with
any amendments, waivers, renewals or modifications of or made pursuant to this Assignment
or any document or instrument delivered pursuant to or in connection with this Assignment
and all other related documentation.
17. Modifications. No modification of any provision of this Assignment, no
approvals required from Assignee and no consent by Assignee to any departure therefrom by
Assignor or the City shall be effective unless such modification, approval or consent shall be
in writing and signed by a duly authorized officer of Assignee, and the same shall then be
effective only for the period and on the conditions and for the specific instances and purposes
specified in such writing. No notice to or demand on Assignor in any case shall entitle
Assignor or the City to any other or further notice or demand in similar or other
circumstances.
18. Reinstatement of Obligations. Assignor and the City expressly agree that to the
extent a payment or payments to Assignee, or any part thereof, are subsequently invalidated,
declared to be void or voidable, set aside and are required to be repaid to a trustee, custodian,
receiver or any other party under any bankruptcy act, state or federal law, common law or
equitable cause,then to the extent of such payment or repayment,the obligation or part thereof
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intended to be satisfied and any collateral given therefore including this Assignment shall be
revived and continued in full force and effect as if said payment had not been made.
19. Number and Gender/Successors and Assigns. The singular includes the plural
and the plural includes the singular. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the
Person or Persons referred to may require. Whenever the word "or" is used herein, it shall not
be deemed exclusive. This Assignment is a continuing obligation and shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their respective heirs,
successors, transferees and permitted assigns; provided, however, that Assignor and the City
may not assign or delegate all or any part of this Assignment without the prior written consent
of Assignee in its sole and absolute discretion. Assignee may, in accordance with applicable
law, from time to time sell, assign, transfer or convey its rights and obligations under or grant
participations in this Assignment without the consent of Assignor or the City. Without
limitation of the foregoing generality Assignee shall have the unrestricted right at any time and
from time to time, to grant to one or more banks or other financial institutions, private equity
or hedge funds (each, a "Participant") participating interests in Assignee's obligations and
rights hereunder. In the event of any such grant by Assignee of a participating interest to a
Participant, whether or not upon notice to Assignor or the City, Assignee shall remain
responsible for the performance of its obligations hereunder and Assignor and Manager shall
continue to deal solely and directly with Assignee in connection with Assignee's rights and
obligations hereunder.Assignee may furnish any information concerning any Assignor and the
City, and any guarantors and assignors, in its possession from time to time to prospective
assignees and Participants; provided, however, that Assignee shall require any such
prospective assignee or Participant to agree in writing to maintain the confidentiality of such
information to the same extent as Assignee would be required to maintain such confidentiality.
20. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION TO ASSIGNEE,
ASSIGNOR AND THE CITY HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY
(WHICH ASSIGNEE ALSO WAIVES) IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS ASSIGNMENT OR ANY OF THE
LOAN DOCUMENTS OR RELATING THERETO OR ARISING FROM THE LENDING
RELATIONSHIP WHICH IS THE SUBJECT OF THIS ASSIGNMENT AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
21. Definitions. Capitalized terms used and not defined herein or in the Loan
Agreement shall have the meanings given to them in the Uniform Commercial Code as
adopted and in force in the State of Illinois, as from time to time amended. Should any of the
covenants, terms or conditions in this Assignment conflict with those in the Loan Agreement,
then the covenants,terms and conditions in the Loan Agreement shall prevail.
11
{The remainder of this page is intentionally left blank; signature page follows.}
12
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties hereto
have caused this Assignment to be duly executed as of the day and year first above written.
ASSIGNOR:
ELGIN TOWER LLC,
an Illinois limited liability company
By: Elgin Manager LLC,
an Illinois limited liability company,
its Managing Member
By: Capstone Elgin Development Corporation,
an Illinois corporation,
its Manager
By:
William Luchini,President
CITY:
CITY OF ELGIN,ILLINOIS,
an Illinois municipal corporation
By:
Name: Richard G. Kozal
Its: Coty Manaapr
ASSIGNEE:
MIDLAND STATES BANK,
an Illinois state chartered bank
By:
Christine A. Uram, Authorized Signatory
13
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
PARCEL I:
THAT PART OF LOTS 3 AND 4 IN BLOCK 19 OF THE ORIGINAL TOWN OF ELGIN ON THE
EAST SIDE OF THE FOX RIVER,DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 4; THENCE NORTH ALONG THE
EAST LINE OF SAID LOT, 60 FEET; THENCE WEST AT RIGHT ANGLES TO SAID EAST LINE,
66 FEET TO THE WEST LINE OF SAID LOT; THENCE SOUTHWESTERLY AT RIGHT ANGLES
TO THE EASTERLY LINE OF RIVER STREET TO THE WESTERLY LINE OF SAID LOT 3;
THENCE SOUTHERLY ALONG SAID WESTERLY LINE AND ALONG THE WESTERLY LINE OF
LOT 4 AFORESAID TO THE SOUTH LINE OF SAID LOT 4;THENCE EAST ALONG THE SOUTH
LINE OF SAID LOT,49.5 FEET TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN,KANE
COUNTY,ILLINOIS.
PARCEL 2:
THAT PART OF LOT 3 IN BLOCK 19 OF THE ORIGINAL TOWN OF ELGIN ON THE EAST SIDE
OF FOX RIVER,DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF LOT 3 AFORESAID, 44 FEET
SOUTHERLY FROM THE NORTHWEST CORNER THEREOF; THENCE SOUTHERLY ALONG
THE WESTERLY LINE OF SAID LOT, 53 FEET AND 8 INCHES TO THE NORTHERLY LINE OF
THE LOT CONVEYED TO THE HOME NATIONAL BANK OF ELGIN BY DEED DATED JUNE 3,
1890, AND RECORDED JUNE 17, 1890 AS DOCUMENT 30468, IN BOOK 266, PAGE 115;
THENCE EASTERLY AT RIGHT ANGLES TO THE EASTERLY LINE OF RIVER STREET, 19
FEET 9 INCHES TO THE EAST LINE OF SAID LOT 3; THENCE NORTH ALONG SAID EAST
LINE TO A POINT THEREIN FROM WHICH A LINE DRAWN AT RIGHT ANGLES TO THE
EASTERLY LINE OF RIVER STREET WOULD INTERSECT THE PLACE OF BEGINNING;
THENCE WESTERLY AT RIGHT ANGLES TO RIVER STREET AND ALONG SAID LINE 60 FEET
AND 2 INCHES TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY,
ILLINOIS.
PARCEL 3:
THE NORTH 21 FEET OF THE SOUTH 81 FEET OF LOT 4(MEASURED ON THE EAST LINE OF
SAID LOT), IN BLOCK 19 OF THE ORIGINAL TOWN OF ELGIN ON THE EAST SIDE OF THE
FOX RIVER, IN SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD
PRINCIPAL MERIDIAN,IN THE CITY OF ELGIN,KANE COUNTY,ILLINOIS.
FOR INFORMATION ONLY:
C/K/A: 100 E. CHICAGO STREET,ELGIN,IL 60120
PIN:06-14-283-018
14
MEMORANDUM OF COLLATERAL ASSIGNMENT OF REDEVELOPMENT
AGREEMENT
This MEMORANDUM OF COLLATERAL ASSIGNMENT OF REDEVELOPMENT
AGREEMENT ("Memorandum") is entered into on August 18, 2016, by among the CITY OF
ELGIN, ILLINOIS, an Illinois municipal corporation(the"Q ') and ELGIN TOWER LLC, an
Illinois limited liability company ("Assi nor 1), with any address of 101 South Hanley Road,
Clayton, Missouri 63105, as successor in interest thereunder to CAPSTONE DEVELOPMENT
GROUP, L.L.C., a Missouri limited liability company ("Capstone'), in favor of MIDLAND
STATES BANK, an Illinois state chartered bank (together with its successors and assigns,
"Assignee'),having an address at 1540 Illinois Route 59,Joliet,Illinois 60431.
WITNESSETH:
The following recitals form a material part of this Memorandum:
A. Assignee has agreed to make a loan in the aggregate original principal amount of
up to $10,500,000.00 to Borrower(the"Loan"), evidenced by a certain Promissory Note in said
principal amount, made and executed by Borrower and payable to the order of Assignee
(together with all modifications, amendments, renewals, extensions, replacements, restatements,
supplements and substitutions therefor,the"Note").
B. The Loan will be secured by, among other things, a certain Loan Agreement by
and between Borrower and Assignee dated as of even date herewith (together with all
modifications, amendments, renewals, extensions, replacements, restatements, supplements and
substitutions therefor, and any and all exhibits, schedules, and addenda thereto, the "Loan
Agreemenf)and a certain Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing granted by Borrower for the benefit of Assignee, dated as of even date herewith
(together with all modifications, amendments, renewals, extensions, replacements, restatements,
supplements and substitutions therefor, and any and all exhibits, schedules,and addenda thereto,
the "Mort ka-e") encumbering certain real property and improvements thereon located in the
City of Elgin, Illinois, which property is more particularly described in Exhibit A attached
hereto and incorporated herein by reference (the "Land"). The Note, the Loan Agreement, the
Mortgage,the Security Documents(as defined in the Loan Agreement), and all other documents,
agreements, instruments, and affidavits now or hereafter evidencing, securing, guaranteeing,
1
executed and/or entered into in connection with the Loan are collectively referred to herein as the
"Loan Documents".
C. The Loan proceeds will be used to finance the rehabilitation and reuse of the
property commonly known as Elgin Tower and located at 100 East Chicago Street in Elgin,
Illinois 60120, for market rate apartments being constructed by Borrower, pursuant to the
sources and uses approved by Assignee(and together with the Land,the"Project").
D. The Land (and where applicable the Project) is subject to that certain
Redevelopment Agreement by and between Assignor and the City dated October 8, 2014
(together with all modifications, amendments, renewals, extensions, replacements, restatements,
supplements and substitutions therefor, and any and all exhibits, schedules, and addenda thereto,
the "Redevelopment Agreement"), for, in part, of the construction, improvement and equipping
of the Property in respect of the Project and wherein the City agreed to provide Assignor certain
monetary development assistance in the amount of Six Million Three Hundred Fifty Thousand
and 00/100 Dollars ($6,350,000.00) (together with any and all other amounts or sums paid,
reimbursed or disbursed to Assignor under the Redevelopment Agreement, collectively, the
"TIF Proceeds") in order to incept and facilitate the proposed to finance the rehabilitation and
reuse of the Land for market rate apartments, pursuant to the terms contained in the
Redevelopment Agreement.
E. Capstone, as the former Developer under and pursuant to the Redevelopment
Agreement, previously assigned its rights, title and interests as the Developer thereunder to
Assignor, and Assignor accepted such assignment.
F. As a condition to the making of the Loan, Assignee has required that Assignor
pledge, assign, convey, transfer and grant to Assignee, and Assignor has agreed to pledge,
assign, convey, transfer and grant to Assignee, a security interest in, and all right, title and
interest of Assignor in,to and under,the Redevelopment Agreement and amounts due thereunder
as additional security and collateral for the payment and performance by Borrower under the
Loan and all of Borrower's obligations under the Loan Agreement, the Note and the other Loan
Documents.
G. Assignor and the City will directly benefit from the extension of the Loan under
the Note and the other Loan Documents for the redevelopment of the Land in respect of the
Project and from the completion of the Project.
H. Assignor collaterally assigned its rights, title and interest in, to and under the
Redevelopment Agreement to and in favor of Assignee in connection with the Loan.
1. This Memorandrun shall not supplement,modify, alter or change any provision of
the Loan Documents or the Redevelopment Agreement, but merely provide notice of the
existence of the collateral assignment of the Redevelopment Agreement.
2
J. This Memorandum may be executed in one or more counterparts, each of which
when executed shall constitute an original, but all of which together shall constitute one and the
same agreement.
{The remainder of this page is intentionally left blank;signature page follows.'r
IN WITNESS HEREOF, Assignor and Assignee, intending to be legally bound, have
executed this Memorandum on the date set forth above, for the purpose of providing an
instrument for recording.
ASSIGNOR:
ELGIN TOWER LLC,
an Illinois limited liability company
By: Elgin Manager LLC,
an Illinois limited liability company,
its Managing Member
By: Capstone Elgin Development Corporation,
an Illinois corporation,
its Manager
By:
William Luchini, President
STATE OF l (VL 0 t ' )
} ss.
COUNTY OF C�n t'k )
On this t day of k T, 2016,before me appeared_William Luchini, to me
personally known, who being bk me duly sworn did say that he is the President of Capstone
Elgin Development Corporation, an Illinois corporation, Manager of Elgin Manager LLC, an
Illinois limited liability company, Managing Member of ELGIN TOWER LLC, an Illinois
limited liability company, and that said instrument was signed on behalf of said limited liability
company by authority of its Members, and said William Luchini acknowledged said instrument
to be the free act and deed of said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
...........Z6_44 (6)
NOTARY PUBLIC
3
Name:e !?::,
My Commission Expires: :�7 ))Le
(SEAL)
OFFICIAL SEAL
ELLEN Bus
Notary Public-State of Illinois
MY Commission Expires Oct 22,2016
ASSIGNEE:
MIDLAND STATES BANK,
an Illinois state chartered bank
By:
Christine A.Uram,Authorized Signatory
STATE OF )
ss.
COUNTY OF }
On this day of , 2016, before me appeared Christine A. Uratn, to me
personally known, who being by me duly sworn did say that she is the Authorized Signatory of
MIDLAND STATES BANK, an Illinois state chartered bank, and that said instrument was
signed on behalf of said corporation by authority of its Board of Directors, and said Christine A.
Uram acknowledged said instrument to be the free act and deed of said corporation.
IN TESTIMONY)NMREOI~, I have hereunto set my hand and affixed my official seal
the day and year first above written.
NOTARY PUBLIC
Name:
My Commission Expires:
(SEAL)
4
CITY:
CITY OF ELGIN, ILLINOIS,
An Illinois Municipal corporation
By:
Name: Richard G. Kozal �
Title: City Manager
� u
Attest
13y: Y A
t L l
Name: Kimberl
Title: City Clerk I �. v
d _.
(Seal of the City of Elgin, Illinois)
STATE OF )
SS.
COUNTY OF )
On this �, day of {. -�- , 2016, before me, the undersigned, a Notary
Public, appeared and , � ,i� to me personally known, who,
being by me duly sworn, did say that they are the City Manager and the City Clerk, respectively,
of the CITY OF ELGIN, ILLINOIS, a body politic and corporation duly authorized, incorporated
and existing under and by virtue of the laws of the State of Illinois, and that the seal affixed to the
foregoing instrument is the corporate seal of such Municipality, and that such instrument was
signed and sealed on behall'of the Municipality by authority of its City Manager, and said officials
acknowledged said instrument to be executed for the purposes therein stated and as the free act
and deed of such Municipality.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the
day and year last above written.
NOTARY PUBLIC
Name: E 1,'1 4 XT �L-L,
My Commission Expires: - J
(SEAL)
"OFFICIAL SEAL"
KATLUV S.BAILEY
Notary Public,State of IMMIs
My corrrmission Expires 06/27/17
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
PARCEL 1:
THAT PART OF LOTS 3 AND 4 IN BLOCK 19 OF THE ORIGINAL TOWN OF ELGIN ON THE
EAST SIDE OF THE FOX RIVER,DESCRIBED AS FOLLOWS:
BEGINNI'N'G AT THE SOUTHEAST CORNER OF SAID LOT 4; THENCE NORTH ALONG THE
EAST LINE OF SAID LOT, 60 FEET; THENCE WEST AT RIGHT ANGLES TO SAID EAST LINE,
66 FEET TO THE WEST LINE OF SAID LOT; THENCE SOUTHWESTERLY AT RIGHT ANGLES
TO THE EASTERLY LINE OF RIVER STREET TO THE WESTERLY LINE OF SAID LOT 3;
THENCE SOUTHERLY ALONG SAID WESTERLY LINE AND ALONG THE WESTERLY LINE OF
LOT 4 AFORESAID TO THE SOUTH LINE OF SAID LOT 4;THENCE EAST ALONG THE SOUTH
LINE OF SAID LOT,49.5 FEET TO THE POINT OF BEGINNING,IN THE CITY OF ELGIN,KANE
COUNTY,ILLINOIS.
PARCEL 2:
THAT PART OF LOT 3 INS'BLOCK 19 OF THE ORIGINAL TOWN OF ELGIN ON THE EAST SIDE
OF FOX RIVER,DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF LOT 3 AFORESAID, 44 FEET
SOUTHERLY FROM THE NORTHWEST CORNER THEREOF; THENCE SOUTHERLY ALONG
THE WESTERLY LINE OF SAID LOT, 53 FEET AND 8 INCHES TO THE NORTHERLY LINE OF
THE LOT CONVEYED TO THE HOME NATIONAL BANK OF ELGIN BY DEED DATED JUNE 3,
1890, AND RECORDED JUNE 17, 1890 AS DOCUMENT 30468, IN BOOK 266, PAGE 115;
THENCE EASTERLY AT RIGHT ANGLES TO THE EASTERLY LINE OF RIVER STREET, 19
FEET 9 INCHES TO THE EAST LINE OF SAID LOT 3; THENCE NORTH ALONG SAID EAST
LINE TO A POINT THEREIN FROM WHICH A LINE DRAWN AT RIGHT ANGLES TO THE
EASTERLY LINE OF RIVER STREET WOULD INTERSECT THE PLACE OF BEGINNING;
THENCE WESTERLY AT RIGHT ANGLES TO RIVER STREET AND ALONG SAID LINE 60 FEET
AND 2 INCHES TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY,
ILLINOIS.
PARCEL 3:
THE NORTH 21 FEET OF THE SOUTH 81 FEET OF LOT 4 (MEASURED ON THE EAST LINE OF
SAID LOT). IN BLOCK 19 OF THE ORIGINAL TOWN OF ELGIN ON THE EAST SIDE OF THE
FOX RIVER, IN SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD
PRINCIPAL MERIDIAN,IN THE CITY OF ELGIN,KANE COUNTY,ILLINOIS.
FOR INFORMATION ONLY:
C/K/A: 100 E.CHICAGO STREET,ELGIN,IL 60120
PIN:06-14-283-018