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R-22-10 - Authorizing Repayment Agreement with MP LemontRESOLUTION f a ' f C) A RESOLUTION AUTHORIZING EXECUTION OF A REPAYMENT AGREEMENT WITH MP LEMONT, LLC IN CONNECTION WITH DOWNTOWN CANAL DISTRICT 1 REDEVELOPMENT PLAN AND PROJECT WHEREAS, the Village of Lemont desires to enter into an Agreement with MP Lemont, LLC for Repayment of Notes in connection with Downtown Canal District I Redevelopment Plan and Project; and WHEREAS, the document attached hereto as Exhibit A outlines the terms and conditions of the Repayment Agreement between the Village of Lemont and MP Lemont, LLC. NOW, THEREFORE BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES as follows: SECTION 1: That the Village President is hereby authorized to execute the Repayment Agreement with MP Lemont, LLC attached hereto as Exhibit A. SECTION 2: This Resolution shall be in full force and effect from and after its passage, approval and publication in the manner provided by law. SECTION 3: The Village Clerk of the Village of Lemont shall certify to the adoptions of this Resolution and cause the same to be published in pamphlet form PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COOK, WILL AND DU PAGE COUNTIES ILLINOIS on this ®`lei Day of , 2010. Debby Blatzer Paul Chialdikas Clifford Miklos Rick Sniegowski Ronald Stapleton Jeanette Virgilio Attest: L L L AYES NAYS PASSED ABSENT ARLENE SMOLLEN, Village Clerk S, Village President REPAYMENT AGREEMENT AND RELEASE This REPAYMENT AGREEMENT AND RELEASE is made as of February , 2010 (this "Agreement ") by and between the VILLAGE OF LEMONT ( "Village ") and MP LEMONT, LLC (including as successor "Townbuilder ", the ``Developer "), with reference to the following facts: A. The Village issued that certain Recital Subordinate Developer Note (No. R -1 (Series 2006A)) described on Exhibit A (with the Developer as owner, the "Developer Note "), and those certain PNC Notes (No. R -1 (Series 2006) and No. R -2 (Series 2006)) (with PNC BANK, NATIONAL ASSOCIATION (successor by merger and acquisition of Merchantile -Safe Deposit and Trust Company, a Maryland Corporation) as successor Trustee of the AFL -CIO Building Investment Trust, a trust existing under the laws of Maryland, and not in its corporate capacity ( "Trustee "), as owner, the "PNC Notes ") in connection with the development of certain Development Property (as defined in the Redevelopment Agreement) pursuant to that certain Redevelopment Agreement by and between Marquette Property Investments, Inc. ( "MPI ") and the Village, dated as of May 15, 2006 ( "Redevelopment Agreement ") and assigned by MPI to the Developer. B. The Developer Note is not secured and the PNC Notes are secured, inter alia, by: (i) that certain Mortgage and Security Agreement dated August 22, 2006 ( "Mortgage ") made by MP Lemont, LLC in favor of Trustee's predecessor -in- interest, Mercantile -Safe Deposit and Trust Company, a Maryland corporation, as successor Trustee of the AFL -CIO Building Investment Trust; and (ii) that Collateral Assignment of Redevelopment Agreement dated August 22, 2006 by and between MP Lemont, LLC and Trustee's predecessor -in- interest, Mercantile -Safe Deposit and Trust Company, a Maryland corporation, then successor Trustee of the AFL -CIO Building Investment Trust. C. Village has requested that Developer and Trustee each accept a "write down" of, and release the Village, from their certain obligations under and related to the Developer Note and PNC Notes, including all Incremental Taxes and certain obligations arising out of and in connection with the Redevelopment Agreement. D. Developer has agreed to accept a write down of the Developer Note and to release the Village, subject to the terms and conditions set forth herein as to Incremental Taxes and from any and all obligations evidenced by the Developer Note and, except for Article IV concerning the Parking Structure (defined in the Redevelopment Agreement), the Redevelopment Agreement. NOW THEREFORE, to induce Developer and Village to enter into this Agreement and to confer substantial benefits upon the Village and the Developer, and in consideration of the foregoing Recitals, the mutual covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Village and Developer hereby agree as follows: 1. Recitals and Exhibits. The Recitals set forth above and the Exhibits attached hereto are true and correct and are incorporated into this Agreement by this reference as if they were fully set forth herein. Capitalized terms not defined herein shall have the same meaning set forth in the Redevelopment Agreement. 2. Reduced Payoff. Village shall pay. to Developer an amount equal to $400,000.00 ( "Payoff Amount ") on or before 1:00 p.m. E.S.T. March 31, 2010 (the "Final Payoff Date "). So long as the Payoff. Amount shall be received by Developer on or before the Final Payoff Date, Developer agrees to accept the Payoff Amount as full payment and satisfaction of all amounts due and owing or to become due and owing under the Developer Note and to release any and all claims and rights to Incremental Taxes and the Village from all further payment and other obligations under the Developer Note and the Redevelopment Agreement. 3. Closing. Delivery of the Payoff Amount by the Village to the Developer contemplated herein shall be consummated at a closing ( "Closing ") to occur on or before 1:00 p.m. E.S.T. of the Final Payoff, Date, or as otherwise agreed to by the parties (the "Closing Date "). Payment shall be made by means of a wire transfer directed to the following account: [DEVELOPER — Please provide.] 4. Contingencies. (a) Approval of Corporate Authorities. Village shall have until 11:59 p.m. C.S.T. on March 16, 2010 (herein the "Village Approval Period ") in which to obtain the necessary approval and authorization to consummate the transaction contemplated by this Agreement by the corporate authorities of the Village. The Village, or its attorney, shall give written notice to Developer or its attorney that the foregoing contingency has been satisfied or waived on or before the expiration of the Village Approval Period. Should the Village fail to declare in writing (by fax or email, by the Village or its attorney) that the foregoing contingency is satisfied (or that the foregoing condition is waived) on or before the Village Approval Period, this Agreement and the obligations of the parties hereunder shall cease and terminate. (b) Issuance of Bonds. Village shall have until 12:30 p.m. C.S.T. March 31, 2010 (herein the "Bond Period ") in which to issue bonds or other obligations (the "Bonds ") in an amount adequate to fund the Payoff Amount. The Village, or its attorney, 2 shall give written notice to Trustee or its attorney that the foregoing contingency is satisfied or waived on or before the expiration of the Bond Period. Should the Village fail to declare in writing (by fax or email, by the Village or its attorney) that the foregoing contingency is satisfied (or that the foregoing condition is waived) on or before the Bond Period, this Agreement and the obligations of the parties hereunder shall cease and terminate. (c) The Developer has obtained all the necessary approval and authorization in connection with this Agreement. 5. Bonds. The Developer shall not participate in or be responsible for any statements, representations or warranties made in connection with the issuance of the Bonds. The Village represents that there is a reasonable expectation that the Bonds will be purchased and result in net bond proceeds of not less than the amount which is required for the write -down and Repayment Amount of the Developer Note and the obligations = related thereto as provided herein. 6. Effectiveness of Agreement. Village hereby acknowledges, covenants and agrees that the effectiveness of this Agreement (including, without limitation, Developer's agreements regarding write -down and reduction of a part of the referenced debt and other amounts payable under the Developer Note, other than the Payoff Amount) is expressly subject to and contingent the Developer receiving the write down on or prior to the Final Payoff Date. 7. Release by Developer. Subject to and conditioned upon timely indefeasible payment in full to the Developer of the write down Amount, and whether or not a separate release document is executed and delivered, Developer (i) remises, releases, acquits, satisfies and forever discharges Village, from any and all manner of debts, accountings, bonds, warranties, representations, covenants, promises, contracts, controversies, agreements, liabilities, obligations, expenses, damages, judgments, executions, actions, claims, demands and causes of action of any nature whatsoever, whether at law or in equity, either now accrued or hereafter maturing and whether known or unknown, which Developer now has or hereafter can, shall or may have by reason of any matter, cause or thing, from the beginning of the world to and including the Closing with respect to or arising out of or in connection with the Developer Note, Incremental Taxes and the Redevelopment Agreement, including specifically, but without limitation, matters arising out of, in connection with or relating to (now existing or hereafter acquired) (A) the Redevelopment Agreement (except as to the Parking Structure as defined in the Redevelopment Agreement); and (B) and Incremental Taxes; and (ii) covenants and agrees never to institute or cause to be instituted or continue prosecution of any suit or other form of action or proceeding of any kind or nature whatsoever against Village or its successors and assigns by reason of or in connection with any of the foregoing matters, claims or causes of action, and in those connections does them and there discharge, declare satisfied and releases all of Developer's rights, titles and interests in and to the Developer Note, Redevelopment Agreement (including Incremental Taxes, as defined in the Redevelopment Agreement). 3 8. Time of the Essence. Time shall be of the essence in the performance of the obligations of the parties. 9. Fees and Costs. Each party shall bear its own fees and costs in connection with the transaction contemplated hereby whether or not such transaction closes. 10. Brokers. No party to the transaction contemplated hereby has dealt with a broker, finder or intermediary in connection herewith and the each party shall indemnify, defend and hold harmless the other from against any and all claims for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary retained or claimed to be retained by such party. 11. Inducement. Each of the acknowledgments, representations, covenants and agreements by Village and Director contained in this Agreement is a material part of the consideration received by the other and is a material inducement to each for the execution and delivery by the other of this Agreement and all related documents. 12. Notices. All notices and other communications under this Agreement are to be in writing and addressed to each party as set forth below. Default or demand notices shall be deemed to have been duly given upon the earlier of: (a) actual receipt; '(b) one (1) Business Day after having been timely deposited for overnight delivery, fee prepaid, with a reputable overnight courier service, having a reliable tracking system; or (c) three (3) Business Days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by certified mail, postage prepaid, return receipt requested, and in the case of clause (b) and (c) irrespective of whether delivery is accepted. Notice to outside counsel or parties other than the named Village or Developer, now or hereafter designated by a party as entitled to notice, are for convenience only and are not required for notice to a party to be effective in accordance with this section. Notice addresses are as follows: Address for Developer: Address for Counsel for Developer: Jeff Prosapio Marquette Companies 15 W. Jefferson Ave., 2nd Floor Naperville, Illinois 60540 Fax: (630) 346 -0003 Email: jrosapio@marquettecompanies.com Robert G. Gibson, Esq. Dommermuth, Brestal, Cobine and West, Ltd. 123 Water Street Naperville, Illinois 60540 Fax: (630) 355 -5976 Email: rqg @dbcw.com 4 Address for Village: Address for Special Counsel for Village: Village of Lemont 418 Main Street Lemont, IL 60439 Attn: Ben Wehmeier Fax: (630) 257 -1598 Email: bwehmeier(a�lemont.il.us cc: Dan Blondin (email: dblondin @rzllc.com) Evans, Froehlich, Beth & Chamley 44 Main Street, Third Floor Champaign, Illinois 61820 Attn: Kurt P. Froehlich Fax (217) 359 -6468 kfroehlich @efbclaw.com 13. Construction. The language in all parts of this Agreement in all cases shall be construed simply according to its fair meaning and not strictly for or against any party. All words used herein in the singular number shall extend to and include the plural number. All words used herein in the plural number shall extend to and include the singular number. All words used in any gender, male, female or neuter shall extend to and include all genders as may be applicable in any particular context. Captions and headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision of this Agreement. This Agreement has been negotiated at arms' length between persons knowledgeable in the matters dealt with herein. Accordingly, among other things, any rule of law or any other statute, legal decision or common law principle that would require interpretation of any ambiguities in this Agreement against the party that has drafted this Agreement are of no application, and are hereby expressly waived by all parties hereto. 14. Governing Laws. This Agreement, and the obligations of the parties hereunder, shall be interpreted, construed, and enforced in accordance with the laws of the State of Illinois. 15. Integration. This Agreement embodies the entire agreement and understanding among the parties hereto relating to the subject matter hereof and supersedes all prior agreements, understandings, representations and discussions relating thereto. Neither this Agreement, nor any of its provisions may be changed, amended, waived or otherwise modified except by an agreement in writing duly executed by, or on behalf of, the party against whom enforcement of any change, amendment, waiver, modification, consent or discharge is sought. The parties fully understand and acknowledge the import of the foregoing provision, and are aware that the law may permit subsequent oral modification of a contract, notwithstanding any contractual language which requires that any such modification be in writing, but the parties hereby fully and expressly intend that the foregoing requirements as to a writing 5 shall be strictly adhered to and strictly interpreted and enforced by any court which may be asked to decide the question. 16. Binding Effect. Except as herein otherwise provided to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and legal representatives. 17. Counterparts. This Agreement may be executed in counterparts, and the signature pages and acknowledgements thereof may be separated from the body thereof and be assembled into one document by the Trustee, and when so assembled and taken together, all so executed shall constitute one agreement, binding on all of the parties, notwithstanding such assembly of this Agreement or that all of the parties are not signatories to the original or the same counterpart signature page. 18. Further Assurances. The parties will execute and deliver such further instruments and do such further acts and things as may be required to carry out the intent and purposes of this Agreement. [The balance of this page is intentionally left blank. The executions are on the following page.] 6 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first written above. VILLAGE: VILLAGE OF LEMONT By Print Nam Title: Developer: MP LEMONT, LLC By: Print Name: Title: Manager Approved: MAQUETTE PROPERTY INVESTMENTS, INC. By: Its: EXHIBIT A DEVELOPER NOTE Registered No. 1 (Installment) Subordinate Taxable Tax Increment Redevelopment Note [Downtown Canal District I Redevelopment Project Area /Phase 1], Series 2006A in the aggregate principal amount of $809,000 made by the Village of Lemont to Marquette Property Investments, Inc. (as assigned to Developer) 8