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17-121 Resolution No. 17-121 RESOLUTION AUTHORIZING EXECUTION OF AN AMENDMENT TO LOAN AGREEMENT WITH THE ELGIN SYMPHONY ORCHESTRA ASSOCIATION 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 an amendment to loan agreement on behalf of the City of Elgin with the Elgin Symphony Orchestra Association, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: September 13, 2017 Adopted: September 13, 2017 Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AMENDMENT TO LOAN AGREEMENT THIS AMENDMENT TO LOAN AGREEMENT (hereinafter referred to as the "Amendment Agreement" is made and entered into this 19th day of September, 2017, by and between the City of Elgin, Illinois, a municipal corporation, organized and existing under the laws of the State of Illinois (hereinafter referred to as the "City") and the Elgin Symphony Orchestra Association, an Illinois not-for-profit corporation (hereinafter referred to as the "ESO"). WITNESSETH: WHEREAS, the City and ESO previously entered into a loan agreement dated September 11, 2013 (hereinafter referred to as the "Subject Loan Agreement"); and WHEREAS, pursuant to such Subject Loan Agreement, ESO acknowledged and agreed that it was indebted and owed to the City the amount of Two Hundred Thirty-Three Thousand Nine Hundred Thirty and 21/100 Dollars ($233,930.21) referred to in the Subject Loan Agreement as the "Principal" or the "Subject Loan"; and WHEREAS, ESO agreed and promised to repay the City in full the Principal amount of Two Hundred Thirty-Three Thousand Nine Hundred Thirty and 21/100 Dollars ($233,930.21) plus interest thereon in installments as provided in the Subject Loan Agreement;and WHEREAS, there is currently due and owing from the ESO to the City from the Principal or Subject Loan the balance of One Hundred Eighty-Three Thousand Two Hundred Forty-One and 93/100 Dollars($183,241.93); and WHEREAS, the City has agreed, subject to the terms and conditions of this Amendment Agreement, to forgive a portion of the balance of the Subject Loan, conditioned upon ESO's compliance with the terms of this Amendment Agreement. NOW, THEREFORE, for and in consideration of the mutual undertakings contained herein, and in consideration of the mutual undertakings as set forth in the original Loan Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties hereto agree as follows: 1. Incorporation of Recitals. The foregoing recitals are incorporated into this Amendment Agreement. 2. Forgiveness of a Portion of the Balance of the Subiect Loan. ESO shall pay to the City the additional sum of Twenty-One Thousand Four Hundred and 82/100 Dollars ($21,400.82) (hereinafter referred to as the "Partial Payment"). Such Partial Payment shall be paid by ESO to the City in twelve (12) monthly installments in the amount of One Thousand Seven Hundred Eighty-Three and 40/100 Dollars ($1,783.40) for the first eleven (11) monthly installments and in the amount of One Thousand Seven Hundred Eighty-Three and 42/100 Dollars ($1,783.42) for the twelfth monthly installment. ESO will make such monthly payments beginning concurrently with the execution of this Amendment Agreement for the September 2017 payment, and ESO will make the other eleven (11) monthly payments on the first day of each month beginning October 1, 2017. In partial consideration of such partial payment by ESO to the City, and in consideration of ESO's compliance with the other terms and conditions of this Amendment Agreement, the City agrees to forgive the balance of the Subject Loan due and owing from ESO, such forgiven balance being in the amount of One Hundred Sixty-One Thousand Eight Hundred Forty-One and 11/100 Dollars ($161,841.11) (hereinafter referred to as the "Forgiven Balance"). The City's agreement to forgive the balance of the Subject Loan in the amount of the Forgiven Balance, is expressly subject to and contingent upon ESO's Partial Payment to the City of Twenty-One Thousand Four Hundred and 82/100 Dollars ($21,400.82) and ESO's compliance with the other terms and conditions of this Amendment Agreement including, but not limited to, compliance with the terms of the future leasing of the Hemmens Cultural Center as provided for in Section 3 of this Amendment Agreement, and ESO paying when due all rental charges and other fees due to the City pursuant to lease agreements for the Hemmens Cultural Center as required in such lease agreements. If the ESO does not make the Partial Payment to the City of Twenty-One Thousand Four Hundred and 82/100 Dollars ($21,400.82) as required in this Amendment Agreement, the ESO will be in default. If the ESO is in default, the City may send the ESO a written notice telling the ESO that if it does not cure such default by a certain date, the City may require the ESO to pay immediately the full amount of the Partial Payment of Twenty-One Thousand Four Hundred and 82/100 Dollars ($21,400.82) and the full amount of the Forgiven Balance of One Hundred Sixty-One Thousand Eight Hundred Forty-One and 11/100 Sollars ($161,841.11), plus interest at the yearly rate of three percent (3%) from the date of this Amendment Agreement to the date of the notice default. That date must be at least thirty (30) days after the date on which the notices are mailed to ESO or delivered by other means. 3. Section 10 of the Subject Loan Agreement entitled "Future Leasing of Hemmens Cultural Center" is hereby amended to read as follows: "Future LeasinLy of Hemmens Cultural Center. A. ESO'S Main Performance Venue. In partial consideration of the City's agreement to forgive a portion of the balance of the Subject Loan in the amount of the Forgiven Balance as provided in this Amendment Agreement, the ESO agrees to continue to lease from the City the City's Hemmens Cultural Center as ESO'S main performance venue until September 30, 2028. For the purposes of this agreement the City's Hemmens Cultural Center means the existing Hemmens Cultural Center or such successor facility if such a facility is established and designated by the City. For the purposes of this agreement main performance venue shall deemed to mean that ESO performs not less than seventy-five percent (75%) of its events in a performance season at the Hemmens Cultural Center in any performance season. For the purposes of this agreement events shall be deemed to mean rehearsals, concerts, performances and other events. B. Lease Terms. The ESO'S leasing of the Hemmens Cultural Center from the City shall be pursuant to written lease agreements with such terms, rights and charges as -2 - from time to time determined and established by the City. The ESO agrees to and shall promptly pay when due all rental charges and other fees due to the City pursuant to such lease agreements by the dates as required in such lease agreements. C. Default. If the ESO does not continue to utilize the Hemmens Cultural Center as its main performance venue or does not pay to the City the full amount of the rental charges for future rentals when due,the ESO will be in default. D. Notice of Default. If the ESO is in default, the City may send the ESO a written notice telling the ESO that if it does not cure such default by a certain date, (1) the City may require the ESO to pay immediately the full amount of the Forgiven Balance of One Hundred Sixty-One Thousand Eight Hundred Forty-One and 11/100 Dollars ($161,841.11) plus interest at the yearly rate of three percent (3%) from the date of this Amendment Agreement to the date of the notice of default; (2) the City may require the ESO to pay immediately the full amount of any remaining balance of the Partial Payment of Twenty-One Thousand Four Hundred and 82/100 Dollars ($21,400.82) plus interest at the yearly rate of three percent (3%) from the date of this Amendment Agreement to the date of the notice of default; and, (3) any and all future ESO events at the Hemmens Cultural Center shall be canceled and the ESO'S use of the Hemmens Cultural Center shall be terminated. That date must be at least 30 days after the date on which the notices are mailed to ESO or delivered by other means. E. No Waiver By City. Even if, at a time when the ESO is in default, the City does not require the ESO to pay immediately in full as described above, the City will still have the right to do so if the ESO is in default at a later time. F. Payment of the City's Cost and Expenses. If the City has required the ESO to pay immediately in full as described above, the City will have the right to be paid back by the ESO for all its costs and expenses in enforcing this agreement to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorney's fees. G. Leasing at City's Discretion. Nothing in this Section or in this Amendment Agreement is intended or shall be construed as to require the City to lease the Hemmens Cultural Center or any other facility to the ESO. The leasing of the Hemmens Cultural Center or any other facility by the City to the ESO shall be in the sole and exclusive discretion of the City and may be discontinued by the City at any time the City elects to do so. H. Rehearsals to be Open to the Public. In partial consideration of the City's agreement to forgive a portion of the balance of the Subject Loan in the amount of the Forgiven Balance, ESO agrees to and shall open to the public two of its rehearsals each year which are conducted at the Hemmens Cultural Center and allow members of the public to attend such rehearsals free of charge. Such rehearsals which shall be open to the members of the public to attend shall include a pre-rehearsal welcome from the ESO conductor describing the proceedings of the rehearsals at each such event." 1. Reports on Grants. ESO shall provide to the City within thirty (30) days of the conclusion of each fiscal year through and including 2028 a written report detailing - 3 - (1) all grants that ESO has applied for in the fiscal year, (2)the outcome or the result of all such grant applications, and(3)any grants and the amounts thereof which were awarded to the ESO in the fiscal year. 4. Construction. In the event of any conflict between the terms of this Amendment Agreement, and the terms of the Subject Loan Agreement, the terms of this Amendment Agreement shall supersede and control. 5. Continued Effect. Except as specifically amended pursuant to this Amendment Agreement,the terms of the Subject Loan Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the undersigned have entered into and executed this agreement on the date and year first written above. ELGIN SYMPHONY ORCHESTRA CITY OF ELGIN ASSOCIATION B� _ h By: l� Its David J.KfirtainA4ayor LAttest: 7;'�� /'- 4(/< n'�C�Its; fo q 5 , Tity Clerk STATE OF ILLINOIS ) SS COUNTY OF KANE ) I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that David J. Kaptain, Mayor of the City of Elgin, an Illinois municipal corporation, and Kimberly A. Dewis, City Clerk of said 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 severally acknowledged that as such Mayor and City Clerk, they signed and delivered the said instrument as Mayor and City Clerk as their free and voluntary act, and free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. Given under my hand and official seal this day of September, 2017. RVIPRESS NOTARIAL SFAI HERE JENNIFER J QUINTON ary Pu c OFFICIAL SEAL NOTARY PUBLIC STATE OF ILLINOIS MY COMMISSION EXPIRES JANUARY 10,2020 -4 --1 STATE OF ILLINOIS ) ) SS COUNTY OF KANE ) I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that DchJ,4 6 1'2 D CED of the Elgin Symphony restra Association and lbn ed- 6th � , J)12 OF 6USINE of said 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 severally acknowledged that as such 0150 andl)X d.# &,Lt//yx_s, they signed and delivered the said instrument as (a and 4(P or li C5� as their free and voluntary act, and free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. Given under my hand and official seal this day of September,2017. IMPR> �T6hT9�IiAL �`I,"'� SEAMOLIEMBEER GIESKE !� NOTARY PUBLIC-STATE OF IWNOIS Notary Public MY COMMISSION EXPIRES SEPT.17,2018 F:\Legal Dept\Agreement\Loan Agreement-Elgin Symphony Orchestra-Amendment 9-14-17.docx -5 -