Loading...
O-88-07 10/22/2007ORDINANCE NO 7 AN ORDINANCE APPROVING THE FIRST AMENDMENT TO A REDEVELOPMENT AGREEMENT BY AND BETWEEN THE VILLAGE OF LEMONT, ILLINOIS AND MARQUETTE PROPERTY INVESTMENTS, INC., IN CONNECTION WITH DOWNTOWN CANAL DISTRICT I REDEVELOPMENT PROJECT AREA, AND RELATED MATTERS WHEREAS, Marquette Property Investments, Inc. (the "Town builder"), and the Village of Lemont, Illinois (the "Municipality"), in connection with the redevelopment of a part of the Municipality's Downtown Canal District I Redevelopment Project Area (the "Redevelopment Project Area") entered into a Redevelopment Agreement dated as of May 15, 2006 (including all exhibits and attachments in connection therewith, as supplemented and amended, including as herein provided, the "Redevelopment Agreement," with respect to which undefined terms herein shall have the meaning therein) concerning redevelopment incentives and assistance related to the preservation, development and redevelopment of a part of the Redevelopment Project Area; and WHEREAS, the Municipality and the Townbuilder have negotiated a First Amendment to Redevelopment Agreement (the "Amendment") in connection with supplemental tax increment finance ("TIF") incentives and assistance. NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COOK, DUPAGE AND WILL COUNTIES, ILLINOIS, as follows: Section 1. Approval. The Amendment, in substantially the form thereof presented before the meeting of the President and Board of Trustees at which this ordinance is adopted, shall be and is hereby ratified, confirmed and approved, and the Village President and Village Clerk are authorized to execute and deliver the Amendment for and on behalf of the Municipality, with such modifications and revisions therein as the Municipality's officers executing the Amendment shall approve, such approval to be conclusively evidenced by execution and delivery, with no further authorization required other than this ordinance; and upon the execution thereof by the Municipality and the Townbuilder, the appropriate officers, agents, attorneys and employees of the Municipality are authorized to take all supplemental actions, including (i) the issuance from time to time of TIF Notes and/or Refunding TIF Notes under the Redevelopment Agreement and related Authenticating Orders from time to time, and (ii) the execution and delivery of related supplements and amendments and related supplemental approvals and consents, obligations (including TIF Notes, Refunding TIF Notes and Authenticating Orders) opinions, certificates, agreements (including Parking Agreements), instruments not inconsistent with the Redevelopment Agreement and the Amendment, desirable or necessary to implement and otherwise give full effect to the Redevelopment Agreement and the Amendment (and including without limitation the TIF Notes, and/or Refunding TIF Notes, as the case may be, and related Authenticating Orders). Upon full execution thereof, the Amendment shall be attached as an exhibit to this ordinance, but any failure to so attach shall not abrogate, diminish or impair the effect of the Redevelopment Agreement as fully executed. Section 2. Reimbursements, The Municipality reserves the right, and intends to, reimburse itself from incremental property taxes (not pledged under the Redevelopment Agreement) for redevelopment project costs paid from the Municipality's local improvement fund or from general funds. Further, the Municipality reserves the right, but is not obligated, to reimburse itself from proceeds of tax-exempt obligations up to the amount of its contribution to redevelopment project costs as set forth in the Redevelopment Agreement, under Section 1.150-2 of the Income Tax Regulations. Section 3. Bid Waiver. Pursuant to Section 8-9-1 of the Illinois Municipal Code bidding requirements, if any, related to the Redevelopment Agreement and related documents and related contracts entered into or to be entered into shall be and are herebv waived. The Townbuilder shall be responsible for compliance with applicable law related to the Redevelopment Agreement, including without limitation the Prevailing Wage Act. Section 4. Effective. This ordinance shall be in full force and effect in the manner provided by law. -2- Upon motion by Trustee lk ios , seconded by Trustee cayu e, F adopted this 22nd day of October 2007, by roll call vote, as follows: AYES (Names): . Blatzer, Co les- Miklns. ReameR SYs to iijo NAYS (Names): ABSENT (Names): (SEAL) Attest: Aillageerk, Village o emont, Cook, DuPage and Will Counties, Illinois Approved this 22 day of October , 2007. Villagqpresident, Village ofe ont, Cook, DuPag and Will Counties, 11 in is -3- STATE OF ILLINOIS ) COUNTY OF COOOK ) SS. VILLAGE OF LEMONT ) 1, Charlene M. Smollen, do hereby certify that I am the duly selected, qualified and acting Village Clerk of the Village of Lemont, Cook, DuPage and Will Counties, Illinois (the "Municipality"), and as such official I am the keeper of the records and files of the Municipality and of its President and Board of Trustees (the "Corporate Authorities"). I do further certify that the attached ordinance constitutes a full, true and correct excerpt from the meeting and proceedings of the Municipality's Corporate Authorities held on October 22, 2007, insofar as same relates to the adoption of Ordinance No. entitled: ' AN ORDINANCE APPROVING THE FIRST AMENDMENT TO A REDEVELOPMENT AGREEMENT BY AND BETWEEN THE VILLAGE OF LEMONT, ILLINOIS AND MARQUETTE PROPERTY INVESTMENTS, INC., IN CONNECTION WITH THE DOWNTOWN CANAL DISTRICT I REDEVELOPMENT PROJECT AREA, AND RELATED MATTERS, a true, correct and complete copy of which ordinance as adopted at such meeting appears in the minutes of such meeting and is hereto attached. Such ordinance was adopted and approved on the date thereon set forth by not less than a affirmative vote of a majority of the Corporate Authorities and approved by the Village President on the date indicated thereon. I do further certify that the deliberations of the Corporate Authorities on the adoption of the above ordinance were taken openly, that the vote on the adoption of such ordinance was taken openly and was preceded by a public recital of the nature of the matter being considered and such other information as would inform the public of the business being conducted, that such meeting was held at a specified time and place convenient to the public, that the Agenda for the meeting was duly posted at the Village Hall at least 48 hours prior to the meeting, that notice of such meeting was duly given to all of the news media requesting such notice, that such meeting was called and held in strict compliance with the provisions of the Illinois Municipal Code, as amended, and that the Corporate Authorities have complied with all of the applicable provisions of such laws and such Code and their procedural rules in the adoption of such ordinance. IN WITNESS WHEREOF, I hereunto affix my official signature and the seal of the Village of Lemont, Illinois, this 2 vay of Qctohpr- . 2007. Village Clerk (SEAL) PAMPHLET PUBLICATION ORDINANCE NO??.,:;)7 AN ORDINANCE APPROVING THE FIRST AMENDMENT TO A REDEVELOPMENT AGREEMENT BY AND BETWEEN THE VILLAGE OF LEMONT, ILLINOIS AND MARQUETTE PROPERTY INVESTMENTS, INC., IN CONNECTION WITH DOWNTOWN CANAL DISTRICT I REDEVELOPMENT PROJECT AREA, AND RELATED MATTERS PRESENTED: October 22, , 2007 PASSED: October 22, 2007 APPROVED: October 22, , 2007 RECORDED: 2007 PUBLISHED: October 23, 2007 Voting "Aye" (Names): Blatzer, Coules, Miklos Reaves Stapleton, Virgil' o Voting "Nay" (Names): Absent (Names): The undersigned being the duly qualified and acting Village Clerk of the Village of Lemont, Illinois, does hereby certify that this document constitutes the publication in pamphlet form, in connection with and pursuant to Section 1-2-4 of the Illinois Municipal Code, of the above-captioned ordinance and that such ordinance was presented, passed, approved, recorded and published as above stated. Village Clerk (SEAL) Dated: 10123(07 2007 FIRST AMENDMENT TO REDEVELOPMENT AGREEMENT by and between the VILLAGE OF LEMONT, ILLINOIS, And MARQUETTE PROPERTY INVESTMENTS, INC., as Townbuilder dated as of 2007 FIRST AMENDMENT TO REDEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO REDEVELOPMENT AGREEMENT (this "First Amendment", which together with the Redevelopment Agreement dated May 15, 2006 (the "Initial Agreement', are, collectively, the "Agreement") is made and entered into as of this day of 2007, by and between the VILLAGE OF LEMONT, ILLINOIS, a municipal corporation of the State of Illinois (the "Municipality"), and MARQUETTE PROPERTY INVESTMENTS, INC., an Illinois corporation (the "Townbuilder"). (Certain capitalized terms used herein shall have the meanings ascribed to them in the Initial Agreement, except as they may be defined elsewhere in this Amendment.) RECITALS WHEREAS, pursuant to the Tax Increment Allocation Redevelopment Act, Chapter 65, Sections 5/11-74.4-1 through 5/11-74.4-11 of the Illinois Compiled Statutes, as supplemented and amended (the "Act'), the President and Board of Trustees, by Ordinance Nos. 0-37-05, 0-38-05, and 0-39-05 adopted and approved on April 18, 2005 (as supplemented and amended, including by Ordinance No. 0-33-05, adopted April 11, 2005, collectively, the `Approving Ordinances "), (i) approved a redevelopment plan and project titled "Downtown Canal District I Redevelopment Plan and Project" (the "Redevelopment Plan, " and includes the related "Redevelopment Project"), (ii) designated the "Downtown Canal District I Redevelopment Project Area" within the Municipality (the "Redevelopment Area"), and (iii) adopted tax increment allocation finance ("TIF") for the Redevelopment Area, all as set forth in the Approving Ordinances and in accordance with the requirements of the Act; and WHEREAS, in furtherance of the redevelopment of a part of the Redevelopment Area, the Townbuilder commenced part of the first Phase ("Phase ]A') of the Redevelopment Area, such Phase IA constituting a part of the Redevelopment Area to be owned, acquired, or otherwise controlled by the Townbuilder and developed and redeveloped as provided in the Agreement (the `Phase I Development Property, " as described in Exhibit A to the Agreement, as supplemented and amended under the Agreement); and WHEREAS, under the Agreement the Townbuilder agrees to redevelop the Development Property and make certain infrastructure improvements as set forth in the Agreement, consistent with the Redevelopment Plan; and WHEREAS, pursuant to provisions of the Act, the Municipality is authorized to make and enter into all contracts necessary or incidental to the implementation and furtherance of the Redevelopment Plan, to pay directly or to issue one or more TIF Notes (each a "TIF Note") or Refunding TIF Notes (each a "Refunding TIF Note") as evidence of the Municipality's special and limited obligation to pay certain redevelopment project costs incurred in furtherance of the Redevelopment Plan (the "Redevelopment Project Costs"), and/or to apply Incremental Taxes and/or to pledge certain Incremental Taxes to the payment of the TIF Notes and/or the Refunding TIF Notes; and WHEREAS, in accordance with the Redevelopment Plan and the Act, the President and Board of Trustees adopted Ordinance No. 0-28-06 on May 15, 2006, authorizing the Initial Agreement and Ordinance No. 0-_-07 on 2007, authorizing this First Amendment; and WHEREAS, the President and Board of Trustees hereby ratifies and affirms its determination that the approval of the Redevelopment Plan and the fulfillment generally of the Agreement (which includes this First Amendment) are in the best interests of the Municipality, and the health, safety, morals and welfare of its residents, and in accordance with the public purposes set forth in the Redevelopment Plan and the Act. AGREEMENTS NOW, THEREFORE, IN CONSIDERATION OF THE ABOVE PREMISES AND THE PROMISES CONTAINED HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE ADEQUACY AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, EACH PARTY HERETO HEREBY AGREES AS FOLLOWS: Sectionl . Amendments The Initial Agreement is hereby amended by adding as anew part (A) "(A) Phase 1B and Phase 1C," the following: (A) Phase 1B and Phase 1C. At the Townbuilder's request, the Municipality shall provide up to a $700,000 financial advance (the "Financial Advance," in the manner and at the times as more particularly detailed herein) related to the undergrounding of utilities in the "East Paseo" and in the "West Paseo" as part of its current development of 340 River Street, now known as "Front Street Lofts" in Phase 1 A. East Pasco and West Paseo shall be as shown on Exhibit A - 2 attached hereto. There are two parts to the undergrounding to be done by the Townbuilder: Part 1-This work is located within the "East Paseo" and is the relocation of aerial utility services to underground. In addition to servicing the Front Street Lofts, the work provides services to 370 River (Illinois Marine), 42 Stephen Street (Post Office, Phase I B), and 44 Stephen Street (thrift store, auto repair). The two primary purposes for this are: (1) aesthetic; and (2) to have the power/utility aerials eliminated during construction and development for safety considerations. Part 2 - This work is located in the area known as the "West Paseo," to service the Front Street Lofts. The total cost of this work (Part 1 and Part 2) is estimated at $700,000, with the Townbuilder to be responsible for any overages. This work includes the following: concrete encased conduit, primary and secondary lines, cable lines, fiber and/or copper telecommunications, switch gears, transformers and natural gas sleeves. In connection with the Financial Advance for the East Paseo work and the West Paseo work, the Townbuilder has agreed to undertake development of Phase 1 B and Phase 1 C, as herein provided. 2 (z) Phase 1B Development: The Townbuilder hereby agrees to undertake and complete Phase 1B at the times and in the manner as herein provided. Phase 1 B area encompasses 42 and 44 Stephen Street. The four main features of Phase I B are the following (subject to such extensions as the Village President shall approve, as provided in this Agreement): (1) Renovation of 42 Stephen Street ACTIVITY: Financing Preliminary Development Plans Final Development Plans Open SCHEDULE: Complete by 20_ Complete by 20_ Complete by , 20_ On or before , 20 (2) Renovation of 44 Stephen Street ACTIVITY: SCHEDULE: Financing Complete by 20 Preliminary Development Plans Complete by 20_ Final Development Plans Complete by 20_ Open On or before 20- (3) Construction of a new four (4) story, sq. ft. mixed use building between 42 and 44 Stephen Street ACTIVITY: Financing Preliminary Development Plans Final Development Plans Open SCHEDULE: Complete by 20_ Complete by 20 Complete by , 20_ On or before 120 (4) Construction of a five (5) story, sq. ft. mixed use building along the western property line of 42 and 44 Stephen Street ACTIVITY: SCHEDULE: Financing Complete by 120_ Preliminary Development Plans Complete by .20- Final Development Plans Complete by , 20_ Open On or before 120 In connection with the development of Phase 1 B: (i) The Post Office is to continue operations within its various divisions operating within Phase 1B. The Townbuilder shall maintain a retail component to this area of not less than sq. ft. whether through U.S. Postal Service or a private entity. 3 (ii) Allow for continuing current use by owners of 44 Stephen Street. (iii) Preserve the historical parts of the Post Office building, including the mural in the lobby. (iv) On or before August 1, 2008 the Municipality shall advance $300,000 (part of the Financial Advance) under (x) below to finance the East Pasco undergrounding work. The Townbuilder, MP Lemont LLC, Nicholas M. Ryan, Bruno N. Bottarelli and Richard S. Harb (collectively, the "Guarantors") shall by a Guaranty (the "Guaranty," in substantially the form of "EXHIBIT K" hereto) shall guaranty such payment, as one of the "Payments Hereby Guaranteed" under such Guaranty. On or before August 15, 2008 the Municipality shall advance such $400,000 (or its own funds) under (x) below to finance the East Paseo undergrounding work as a part of the Financial Advance under (x) below. In connection with Phase 1 B: (a) The Townbuilder will advance the funds to the Municipality required to purchase the Post Office site for market value (i.e. the $300,000 payment under (5) above), and the Municipality shall transfer title to the property for the Phase 1 B Development described above. The Post Office's current operations are to be relocated to 44 Stephen Street location, replacing the existing tenant, or another downtown location, at a lease rate to be negotiated and paid for by the Townbuilder and at no cost to the U.S. Postal Service or to the Municipality (b) The Townbuilder wil I purchase the existing parking lot of 44 Stephen Street (between the building and the Post Office property). The price shall be the prorated cost of Market Value/ 19,000 s£ =price per SF. The Townbuilder will commence construction of the mixed-use 4 story, sq. ft. building facing Stephen Street and connecting to the Post Office redevelopment with an elevator lobby. Access to the existing auto shop will be provided by easement at the back of the Post Office block of buildings. (c) Upon completion of the Post Office Building redevelopment, the Post Office operations will again be relocated into their permanent offices in the lower level of the building, with the exception of the retail operation. Their purchase price will be factored as pre-paid lease value for a multi-year lease. (d) The 44 Stephen Street building will be leased by the Townbuilder and leased via sublease to a new retail tenant. The purchase price of the parking lot will be used to rehab the existing 44 Stephen Street building fagade along the newly constructed Front Street. All Service Auto Repair will continue its operations and the owner / operators, Tom Frantic and Bruce Geraskey will continue to own the building. (y) Phase 1C Development: The Townbuilder hereby agrees to undertake Phase 1 C at the time and in the manner as herein provided. Conduit banks are to be installed to primarily service 340 River with power, cable television and AT&T service (to include DSL and TV). Some of the power system will feed the public parking garage with the majority of the system providing service for both residential and commercial properties. There may be an opportunity for these systems as well to be utilized on future development at the 230 River Site. The cost of these improvements will be paid for through the sale of Municipality owned (the "Phase IC Municipality Property") property to the Townbuilder at $400,000. Purchase of the Phase 1 C Development Property from the Municipality on or before July 1, 2008 shall be at a price of $400,000. The Municipality on or before such date, and subject to procedures of applicable law, shall provide good and merchantable title to such Phase IC Development Property to the Townbuilder. The Guaranty shall apply to such $400,000 as part of the $700,000 Financial Advance. The property adjacent to the Phase 1 C Municipality Property: The Phase 1 C development is to include not less than 20 town home units with commercial development on the first floor. Not less than 15' of the east property line of Phase I C will be dedicated to the Municipality for purposes of finishing the sidewalk. The Townbuilder will be responsible for streetscape work. In addition, the Townbuilder will be responsible for finishing required streetscape on the southern property line and for any cost overruns. (x) Financial Advance. The Municipality hereby agrees that on or before August 1, 2008 the Municipality shall advance $700,000 (the "Financial Advance") to the Phase 1 Lender to disburse according to the loan documents with the Phase IA Lender for Phase IA for the Townbuilder to complete the East Pasco and West Pasco undergrounding work described in this part A to paragraph 3. 1.1 (d) in (y) and (z) above. Section2 . Agreement. This First Amendment incorporates by reference all of the terms and provisions of the Initial Agreement, which together with this First Amendment constitute, collectively, the Agreement. [The remainder of this page is intentionally blank.] 5 IN WITNESS WHEREOF, the Municipality and the Townbuilder have caused this Agreement to be executed in their respective names and caused their respective seals to be affixed thereto and attested as to the date first above written. This may be executed in counterparts. "MUNICIPALITY" : (SEAL) By Attest; Village Clerk STATE OF ILLINOIS COUNTY OF COOK ACKNOWLEDGMENT SS. On this day of 2007, before me, the undersigned, a Notary Public, appeared John F. Piazza and Charlene M. Smol len, to me personally known, who, being by me duly sworn, did say that they are the Village President and the Village Clerk, respectively, of the VILLAGE OF LEMONT, ILLINOIS, a body politic and corporate 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 in behalf of the Municipality by authority of its President and Board of Trustees, 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 (SEAL) VILLAGE OF LEMONT, ILLINOIS "TOWNBUILDER": MARQUETTE PROPERTY INVESTMENTS, INC. By Its President, Nicholas M. Ryan STATE OF ILLINOIS ) SS. COUNTY OF COOK ) On this day of 2007, before me, the undersigned, a Notary Public, appeared Nicholas M. Ryan, to me personally known, who, being by me duly sworn, did say that (s)he is President of Marquette Property Investments, Inc. duly authorized, established and existing under and by virtue of the laws of the State of Illinois, and that such instrument was signed and sealed in behalf of such limited liability company by authority of its board of directors, and such officer acknowledged said instrument to be executed for the purposes therein stated and as the free act and deed of said limited company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last above written. Notary Public (SEAL) CONSENT / AUTHORIZATION / APPROVAL Mercantile Safe Deposit and Trust Company, as trustee for the AFL-CIO Business Investment Trust (the "Phase 1 Lender" under the Initial Agreement) hereby consents to, authorizes and approves the foregoing First Amendment and the execution, delivery and performance of the First Amendment and the Agreement as so amended. Supplemental to the foregoing, if, as and when the Municipality provides the $700,000 Financial Advance under the First Amendment the Phase I Lender hereby covenants and agrees to administer and disburse such Financial Advance according to the loan documents related to the Phase 1 A development. Dated: 12007 MERCANTILE SAFE DEPOSIT AND TRUST COMPANY, as trustee for the AFL-CIO Business Trust By: Its Approved: TOWNBUILDER By: Its President Dated 2007 EXHIBIT A-2 East Paseo / West Paseo EXHIBIT K GUARANTY THIS GUARANTY AGREEMENT ("Guaranty") is entered into as of , 2007, by and among Marquette Property Investments, Inc. (the "Corporate Guarantor'), MP Lemont, LLC (the "Company Guarantor"), Nicholas M. Ryan, Bruno N. Bottarelli and Richard S. Herb (each an "Individual Guarantor") (Collectively, jointly and severally, the Corporate Guarantor, the Company Guarantor and the Individual Guarantors, are the "Guarantors") and the Village of Lemont, Illinois (togetherwith any successors, as "Secured Party" and also sometimes referred to as the "Municipality"). A. The Municipality and Marquette Property Investments, Inc. (as "Town builder") have entered into a Redevelopment Agreement dated as of May 15, 2006 (the "Agreement", including as amended by the Amendment (defined in B.), with respect to which undefined terms herein shall have the meanings therein), in connection with, among other things, the development and redevelopment of part (referenced to in the Agreement as Phase 1A) of the Downtown Canal District 1 Redevelopment Property Area; and B. The Municipality and the Townbuilder have amended the Agreement by the FirstAmendment to Redevelopment Agreement dated 2007 (the "Amendment") in connection with the development of Phase 113 and Phase 1C, with respect to, among other things, the Municipality advancing $700,000 (the "Financial Advance") to complete certain work with respect to undergrounding utilities within the "East Paseo" and "West Paseo" in Phase 1A (collectively, the "Undergrounding Work"). C. The Guarantors desire that the Municipality fund the Financial Advance and apply the Financial Advance for the Undergrounding Work described above and is willing to enter into the Amendment and this Guaranty in order to provide an inducement to the Municipality to fund the Financial Advance, and the Municipality desires that the Townbuilder undertake Phase 1B and Phase 1C and is willing to enter into the Amendment and accept this Guaranty as an inducement to the Townbuilder to undertake Phase 1B and Phase 1C. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the Guarantors hereby covenant and agree with the Secured Party as follows: REPRESENTATIONS AND WARRANTIES OF GUARANTOR SECTION 1.1 The Guarantors represent and warrant as follows: (a) The Corporate Guarantor is an Illinois corporation and Company Guarantor is an Illinois limited liability company, each legally organized and validly existing under the laws of the State of Illinois. The Corporate Guarantor and the Company Guarantor each is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is material to such entity's business and operations or the ownership of its properties, and has all authority to conduct the business now being conducted by them, respectively, to own and operate the properties used in such businesses, and to execute and carry out and perform their respective obligations under this Guaranty. (b) The execution, delivery and performance by the Guarantors of this Guaranty have been duly authorized by all necessary company action, do not contravene or violate (i) the Articles of Incorporation and Management Agreement of the Corporate Guarantor and the Company Guarantor, (ii) any law, order, rule or regulation applicable to the Guarantors, or (Iii) any contract or agreement to which the Guarantors are a party or by which they are reportedly bound and do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of the properties of any Guarantor. (c) All authorizations or approvals of any governmental body required to be obtained by the Guarantors for(!) the execution, delivery and performance by the Guarantors, of this Guaranty and (!!) the Townbuilder undertakings with respect to the Agreement have been obtained and remain in full force and effect. (d) The Guaranty is the legal, valid and binding obligations of the Guarantors enforceable against the Guarantors in accordance with their respective terms, except as the enforceability may be limited by principles of equity or by bankruptcy, insolvency or similar laws affecting the enforcement of rights of creditors of the Guarantors, or any of them, generally. (e) There is no litigation undisclosed to the Secured Party, legal or administrative proceedings, investigations or any other action of any nature, pending, orto its knowledge, threatened or affecting the Guarantors, which includes the possibility of any judgment or liability not covered by insurance which may materially adversely affect Phase 1 or the rights of the Guarantors, to carry on business as now conducted. Details of all material litigation, legal or administrative proceedings, investigations or any other action of a similar nature, pending against the Guarantors, at any time during the term of this Guaranty will be brought to the attention of the Secured Party, in writing forthwith. The term "material" as used in this subsection means litigation, legal or administrative proceedings involving more than $50,000 which is not covered by insurance. (f) All financial statements and information relating to the Guarantors which have been or may hereafter be delivered to the Secured Party are true and correct and have been prepared in accordance with generally accepted accounting principles consistently applied, and there have been no material adverse changes in the financial condition of the Guarantors since the submission of any financial information to Secured Party and no such material adverse changes in such financial condition are imminent or threatened. (g) All federal, state and other tax returns and reports of the Guarantors including reports from any governmental authority, for the proper maintenance and operation of the properties, assets and business of the Guarantors as may be required by law to be filed or paid, have been filed, and all federal and other taxes, assessments, fees and other governmental charges, (other than those presently payable, without penalty) imposed upon the Guarantors, or their respective properties or assets, which are due and payable, have been fully paid unless being contested by the Guarantors, in the ordinary course of business. (h) To the best of each Guarantors' knowledge, the Guarantors have not willfully or negligently acted or failed to act in a manner which would violate any state or federal environmental law in effect at such time or now in effect with respect to use or occupancy of Phase 1. ARTICLE II AGREEMENTS SECTION 2.1 The Guarantors hereby unconditionally guarantee to the Secured Party(!) the full timely, and prompt payment of (a) the $300,000 Financial Advance for Phase 1 B under the Amendment on or before 2008 and (b) the $400,000 Financial Advance for Phase 1 C under the Amendment on or before 2008 (Including any related attorneys fees and costs and any other collection or enforcement costs for (a) and (b), (a) and (b) are, collectively, the "Payments Hereby Guaranteed") under the Agreement when and as the same shall become due, whether at the stated maturity thereof, by acceleration, call for redemption or otherwise, (Ii) the full and prompt payment of the Indebtedness Hereby Guaranteed when and as the same shall become due, and agree, in the event of any failure of the Townbuilder to make such payments, when due, to make such payments to the Secured Party, and (II!) the full and prompt payment of all other amounts due to the Secured Party pursuant to Section 3.3 of the Agreement and under this Guaranty. All payments by the Guarantors shall be paid in lawful money of the United States of America. Each and every default in payment of the Indebtedness Hereby Guaranteed, shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. Secured Party shall have the right to apply payments in respect of the Indebtedness Hereby Guaranteed, with such allocation to the respective parts thereof and the respective due dates thereof as Secured Party in its sole discretion may from time to time deem advisable. Each Guarantors obligation to pay the Indebtedness Hereby Guaranteed and all other amounts due to the Secured Party under the Agreement contained in this Section 2. 1, expressly includes, but is not limited to, payment of interest subject to adjustment byreason of a change in law, payment of the other amounts due tothe Secured Party as described in the Agreement and this Guaranty and the indemnification payments to the Secured Party required by the Agreement and this Guaranty, the provisions of which are incorporated herein by reference in their entirety. SECTION 2.2 The obligations of the Guarantors under this Guaranty shall be absolute, unconditional and shall remain in full force and effect until the entire Indebtedness Herein Guaranteed shall have been paid or duly provided for, and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, all or any of Guarantors: (a) The waiver, compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of the Issuer contained in the Agreement or this Guaranty, or of the payment, performance or observance thereof; (b) The failure to give notice to the Guarantors of the occurrence of an Event of Default or a default under the terms and provisions of this Guaranty, the Agreement, the Guaranty, or any mortgage, security agreement or other collateral document securing payment of this Guaranty; (c) The transfer, assignment or mortgaging or the purported transfer, assignment or mortgaging of all or any part of the interest of the Secured Party in Phase 1 with respect to the real estate upon which Phase 1 is situated except as referred to in the Agreement or any failure of title with respect to the Secured Party's interest in Phase 1 or related facilities or in the real estate upon which Phase 1 is situated or the invalidity, unenforceability or termination of the Agreement, or any mortgage, security agreement or any other collateral document securing payment of this Guaranty; (d) The waiver, compromise, settlement, release or termination of the Townbuilder's obligations, covenants or agreements contained in the Agreement, or of the payment, performance or observance thereof; (e) The waiver, compromise, settlement, release or termination of any of obligations, covenants or agreements of the Guarantors under or in respect of the Agreement or this Guarantyor of the payment, performance or observance thereof; (f) The extension of the time for payment of any Indebtedness Herein Guaranteed, owing or payable, or of the time for performance of any obligations, covenants or agreements under or arising out of the Agreement, the Indebtedness Herein Guaranteed, or the extension or the renewal of any thereof; (g) The modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Agreement, or this Guaranty; (h) The taking or the omission of any of the actions referred to in the Agreement or of any actions under this Guaranty; (i) Any failure, omission, delay or lack on the part of the Secured Partyto enforce, assert or exercise any right, power or remedy conferred on the Issuer or the Secured Party in this Guaranty, the Agreement, or any other act or acts on the part of the Issuer or Secured Party; (j) The voluntary or involuntary liquidation, dissolution, sale or other disposition (other than by way of mortgage or granting of security interest to secure borrowing of the Guarantors) of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors, or any lessee or user of Phase 1 or the Municipality or any of the assets of any of them, or any allegation or contest of the validity of this Guaranty, the Agreement or the disaffirmance of the Agreement, this Guaranty, or the Indebtedness Herein Guaranteed; (k) To the extent permitted by law, any event or action that would, in the absence of this clause, result in the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in this Guaranty, or any securityfor this Guaranty; or (1) The default or failure of any or all of the Guarantors fully to perform any of its obligations set forth in this Guaranty. SECTION 2.3 No set-off, counterclaim, reduction, or diminution of an obligation, or any defense of any kind or nature (other than performance by the Guarantors of their obligations hereunder) which the Guarantors have or may have against the Secured Party shall be available hereunder to the Guarantors against the Secured Party. SECTION 2.4 In the event of a default in payment of the Indebtedness Herein Guaranteed when and as the same shall become due, whether at the stated maturity thereof, by acceleration, call for prepayment or otherwise when and as the same shall become due, the Secured Party may proceed to enforce its rights hereunder and the Secured Party shall have the right to proceed first and directly against the Guarantors under this Guaranty without proceeding against or exhausting any other remedies which it may have and without resorting to any other security or guaranty held by the Secured Party. SECTION 2.5 The Guarantors hereby expressly waives notice from the Secured Party of its acceptance and reliance on this Guaranty. The Guarantors agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees which may be incurred by the Secured Party in enforcing or attempting to enforce this Guaranty or protecting the rights of the Secured Party following any default on the part of the Guarantors hereunder, whether the same shall be enforced by suit or otherwise. SECTION 2.6 This Guaranty shall not be deemed to create any right in, or to be in whole or in part for the benefit of any person other than the Secured Party, and its permitted successors and assigns, and may be enforced only by the Secured Party. ARTICLE III AFFIRMATIVE COVENANTS SECTION 3.1 From the date hereof until the principal of and interest on the Bond, and premium, if any, and any other indebtedness under the terms of the Agreement are paid in full, the Guarantors covenant and agree that each will: (a) Annual Financial Reports. Provide or cause upon request to be provided to the Secured Party the annual audited financial statements of the Guarantors not later than one hundred twenty (120) days after the close of each fiscal year of the Guarantors and financial reports, including, but not confined to, a balance sheet as at the close of each such fiscal year, a statement of support, revenue and expenses, changes in fund balances, and functional expenses for each such year, such other comments and financial details as are usually included in similar reports togetherwith the complete annual federal income tax returns including all supporting schedules for the Guarantors when filed. Such reports forthe Guarantors shall be prepared on an audited basis in accordance with generally-accepted accounting principles consistently applied by independent certified public accountants selected by the Guarantors and reasonably acceptable to the Secured Party and shall contain unqualified opinions as to the fairness of the statements therein contained. (b) Interim Financial Statements and Reporting. Furnish, or cause to be furnished to the Secured Party within thirty (30) days after the end of each quarter financial statements containing the balance sheet of the Guarantors at the end of such period, income and expense summary and summary statement for operations and changes in fund balances for the portion of the fiscal year up to the end of such month. These financial statements for the Company Guarantor shall be management prepared on the same basis as the statements required in Section 3.1 (a) above and shall be certified by an officer of the Company Guarantor, as being true and correct to the best of his or her knowledge and belief (subject to year end adjustments). (c) No Default rtifi .at Together with such delivery of the financial statements required by Section 3.1 (a) above, furnish to the Secured Party a certificate of an officer of the Company Guarantor, stating that no Event of Default has occurred hereunder or under the Agreement, nor has any event occurred which, with notice and/or passage of time, would constitute such an Event of Default, or if any such Event of Default exists or would exist with notice and/or the passage of time, stating the nature thereof, the period of existence thereof and what action the Guarantors propose to take with respect thereto. (d) Adverse Events. Promptly inform the Secured Party of the occurrence of any Event of Default or of any event which, with notice and/or the passage of time would become an Event of Default, or of any occurrence which has or could reasonably be expected to have a materially adverse effect upon or ability to comply with the obligations hereunder of the Guarantors. (e) Other Information As Reguested. Promptly furnish to the Secured Party such other information regarding the operations, business affairs and financial condition of the Guarantors, as the Secured Party may reasonably request from time to time, permit the Secured Party, its employees, attorneys and its agents, to inspect all of the books, records and properties of the Guarantor, at any reasonable time, except for items protected by attorney-client privilege. (f) Maintain Existence. As to the Company Guarantor, preserve and maintain its company existence, and do or cause to be done all things necessary to preserve and keep in full force and effect the existence, rights and franchises of the Company Guarantor and comply with all applicable laws; continue to conduct and operate the businesses of the Company Guarantor, substantially as conducted and operated during the present and preceding calendar year; at all times maintain, preserve and protect all franchises and trade names and preserve all the remainder of the property used or useful in the conduct of the business of the Company Guarantor and keep the same in good repair, working order and condition. (g) Pay Taxes and Assessments. Duly pay and discharge or cause to be paid and discharged all taxes, assessments and other governmental charges imposed upon the Guarantors and its properties or any part thereof or upon the income or profits therefrom, as well as all claims for labor, materials or supplies which, if unpaid, might by law become a lien or charge upon its properties, except such items as are being in good faith appropriately contested and for which security sufficient to cover payment of such taxes or liens has been provided to Secured Party. (h) Accountina. As to the Company Guarantor, maintain a standard, modern system of accounting for the Company Guarantor in accordance with generally accepted accounting principles ("GAAP"); deliver to Secured Party financial reports in a form satisfactory to Secured Party as Secured Party may reasonably request from time to time; permit the duly authorized representatives of Secured Party at all reasonable times to examine and inspect the financial books and records of the Company Guarantor, or any related business entity of the Company Guarantor, and to make abstracts and copies thereof, and to inspect any property of the Company Guarantor, wherever the same may be located, except for matters covered by the attorney-client privilege. (i) Compliance with Law. The Guarantors shall comply with all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all environmental laws, ordinances, rules and regulations and shall keep all of their respective real property free and clean of any liens imposed pursuant to such laws, ordinances, rules and regulations, and deliver to Secured Party such internally prepared information, reports and forms satisfactory to Secured Party, togetherwith such other reports as Secured Party may reasonably request from time to time to establish compliance with such laws. 0) Litigation. The Guarantors will, during the term of this Guaranty, promptlyfumishtothe Secured Party, in writing, the details of all material litigation, legal or administrative proceedings, investigations or other actions of any nature affecting the Guarantors, and, upon request of the Secured Party, submit to the Secured Party the opinion of counsel to the Guarantors as to the merits thereof. For purposes of this covenant only, "material" shall be deemed to be any litigation, proceeding, investigation or other action in an amount exceeding Fifty Thousand Dollars ($50,000.00). (k) ERISA. As to the Company Guarantor: (1) At all times meet the minimum funding requirements of ERISA with respect to Company Guarantor's employee benefit plans subject to such Act; (ii) as soon as possible and in any event within thirty (30) days after Company Guarantor knows or has reason to know (a) of the occurrence of any event which would constitute a reportable event under Section 4043(b) of Title IV of ERISA, or (b) that the Pension Benefit Guaranty Corporation ("PBGC") or the Company Guarantor has instituted or will institute proceedings under such Title to terminate an employee pension plan, deliver to the Secured Party a certificate of the chief financial officer, of the Company Guarantor setting forth details as to such reportable event which may be required to be filed with the PBGC, or any intent to institute such proceedings, or any notice to the PBGC that the plan is to be terminated, as the case may be (for all purposes of this subsection, Company Guarantor shall be deemed to have knowledge of all facts attributable to the plan administrator under such Title); and (iii) furnish to the Secured Party (or cause the plan administrator to furnish to the Secured Party) a copy of the annual report (including all schedules and attachments) for each plan covered by Title IV, and filed with the Internal Revenue Service by the Company Guarantor, not later than 10 days after such report has been so filed. ARTICLE IV NEGATIVE COVENANTS SECTION 4.1 From the date hereof until the principal of and interest on the Indebtedness Herein Guaranteed, and any other indebtedness under the Agreement is paid in full, the Guarantors covenant and agree that they will not, without the prior written consent of the Secured Party: (a) Loans. Make loans, advances or extensions of credit to, or any investment in, any person, except for services or sales on open account and deposits in the ordinary course of business. For the purposes of this Guaranty, the word "Person" means an individual, corporation, partnership, trust, unincorporated association, joint stock company or other entity. "Related Person" shall include, but shall not be confined to, any person related to the Guarantor, by control or ownership. (b) Guaranty. Guaranty or otherwise in any other way become or be responsible for obligations of any other Person under a guaranty or similar agreement, whether by agreement to purchase the indebtedness of any other Person, or agreement for the furnishing of funds to any other Person through purchases, capital contribution, advance or loans for the purpose of paying or discharging the indebtedness of any other Person, or otherwise, except for the endorsement of negotiable instruments by the Guarantor, in the ordinary course of business for collection. ARTICLE V RESERVED SECTION 6.1 EVENTS OF DEFAULT (a) The occurrence of any of the following events shall be an Event of Default hereunder unless waived in writing by the Secured Party. (i) Any representation or warranty made by any Guarantor pursuant hereto or in any financial data or other information now or hereafter delivered to Secured Party shall prove to have been incorrect in any material respect when made; or (ii) If any principal, premium, if any, or interest or any other sums, owing by the Guarantor to the Secured Party for the Indebtedness Herein Guaranteed are not paid when due, upon demand, whether by acceleration or otherwise, and continuance of non-payment for five (5) business days; or (iii) Any Guarantor, shall fail to perform or observe any material term, covenant or agreement contained in this Guaranty, other than (ii) above, after 30 days written notice having been given to the Guarantors by Secured Party; or (iv) Any material provision of this Guaranty shall at any time for any reason cease to be valid and binding on any Guarantor, or shall be declared to be null and void, or the validity or enforceability thereof against any Guarantor, shall be contested by any Guarantor, or any Guarantor, shall deny that it has any or further liability or obligation under this Guaranty; or (v) The default by any Guarantor in the due payment of any indebtedness for borrowed money other than the Indebtedness Herein Guaranteed in excess of $25,000 or in the observance or performance of any term, covenant or condition in any agreement or instrument evidencing, securing or relating to such indebtedness, and such default shall be continued for the sooner to occur of a period of 30 days or the acceleration of such indebtedness; or (vi) The entry against any Guarantor of one or more judgments or decrees involving an aggregate liability of $50, 000 or more, which has or have become non-appealable and shall remain undischarged, unsatisfied by insurance and unstayed for more than 20 days, whether or not consecutive; or the issuance and levy of a writ of attachment or garnishment against the property of any Guarantor in an action claiming $50,000 or more, and which is not released or appealed and bonded in a manner satisfactory to the Secured Party; or (vii) If any Guarantor voluntarily suspends transaction of its business; or if any Guarantor shall make a general assignment for the benefit of creditors; or shall be the object of a petition under the United States Bankruptcy Code which is not dismissed within 30 days of the filing of such petition; or shall file a voluntary petition in bankruptcy or for a reorganization or to effect a plan or other arrangement with its creditors; or shall file an answer to a creditor's petition or other petition against it (admitting the material allegations thereof) for liquidation or adjustment of debts or for a reorganization; or shall apply for or permit the appointment of a receiver, trustee, or custodian for any substantial portion of its properties or assets; or if any order shall be entered by any court approving an involuntary petition seeking reorganization which is not dismissed within 30 days after entry; or if a receiver, trustee, or custodian shall be appointed for it or for any substantial portion of its property or assets; or if it becomes unable to meet its obligations as they mature; or (viii) The occurrence of an Event of Default or a default under the Agreement, or any other related documents to the Agreement and Phase 1 financing Agreement. ARTICLE VII MISCELLANEOUS SECTION 7.1 The obligations of the Guarantors hereunder shall arise absolutely and unconditionally upon the Municipality funding the Indebtedness Herein Guaranteed. The execution and delivery of this Guaranty shall not impair or diminish in any respect the obligations of any Guarantors under this Guaranty, or any related documents. SECTION 7.2 No delay or omission to exercise any right or power accruing upon anydefault, omission or failure or performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Secured Party to exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice, other than such notice as may be expressly required herein. In the event any provision contained in the Guaranty should be breached by any party and thereafter duly waived by the other party so empowered to act, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing, but solely by an instrument in writing duly executed by the parties to this Guaranty. SECTION 7.3 The Guaranty, with respect to the obligations referred to herein, constitutes the entire agreement, and supersedes all prior agreements and understanding, both written and oral, between the parties with respect to the subject matter hereof and may be executed simultaneously in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. SECTION 7.4 Each of the Guarantors shall be liable for any deficiency remaining after foreclosure of or realization upon any security for all or part of the indebtedness described in Section 2.1 above, whether or not liability of the Guarantor or any other obligor for the deficiency is changed pursuant to statute orjudicial decision. SECTION 7.5 If any payment applied by the Secured Party to the indebtedness described in Section 2.1 above is set aside, recovered, rescinded, or required to be returned for any reason (including, without limitation, the bankruptcy, insolvency or reorganization of the Guarantor the indebtedness to which the payment was applied shall, for the purposes of this Guaranty, be deemed to have continued in existence, not withstanding such application, and this Guaranty shall be enforceable as to such indebtedness as fully as if the Secured Party had not made the application. SECTION 7.6 The Guarantor agrees to, indemnify the Secured Party and hold it harmless from and against any and all losses, expenses, damages, costs and reasonable attorneys' fees incurred by the Secured Party in connection with or as a result of the assertion of any and all claims for the return of monies (including the proceeds of any collateral received or applied by the Secured Party in partial orfull payment of the indebtedness), including without limitation all such claims based upon allegations that monies so received by the Secured Party constituted trust funds under any applicable law or that the payment of such monies or the granting of such collateral to the Secured Party constituted a preference or a fraudulent transfer under the Bankruptcy Act or any other applicable law. This indemnity shall extend to and include all monies recovered from or paid over by the Secured Party as a result of such claim, regardless of the basis thereof, and all costs and expenses including reasonable attorneys' fees incurred by the Secured Party in investigating, evaluating and contesting such claims, regardless of the outcome. SECTION 7.7 Each Guarantor represents and warrants that it has a copy of the Agreement and the Amendment and reviewed the Indebtedness Herein Guaranteed, understands their respective terms and provisions, and the obligations of the Guarantors, which each Guarantor is jointly and severally guaranteeing hereby. SECTION 7.8 The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections in this Guaranty contained, shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof. SECTION 7.9 This Guaranty shall be construed under the laws of the State of Illinois. SECTION 7.10 Unless specifically provided otherwise, any notice for purposes of this Guaranty shall be given in writing or by facsimile (fax) transmission to the number listed below, and shall be addressed or delivered to the respective addresses set forth below, or to such other addresses as may have been previously designated by the intended recipient by written notice provided in accordance with this paragraph. If transmitted by personal delivery, notice shall be effective when delivered and receipted. If transmitted by facsimile, the notice shall be effective when confirmed by telephone at the number listed below. No notice of change of address, fax number or phone number, shall be effective except upon actual receipt, and service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. This paragraph shall not be construed in any way to affect or impair any waiver of notice or demand provided in the Guaranty or to require giving notice or demand to or upon any person in any situation or for any reason. Individual Guarantors Municipality: Corporate Guarantor: Company Guarantor: Nicholas M. Ryan Bruno N. Bottarelli Richard S. Haft If to Seared Party: Village of Lemont 416 Main Street Lemont, Illinois 60439 Tel: (630) 2574 550 Fax: (630) 257-1598 Attn: Village President SECTION 7.11 This Agreement is personal and the parties hereto and is for their sole benefit and is not made for the express or implied benefit of any other person or entity. SECTION 7.12 This Guaranty shall bind the Guarantors, and their respective successors and assigns, and shall inure to the benefit of the Secured Party, its successors and assigns. EACHOF THE UNDERSIGNED AND THE SECURED PARTY ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS. IN WITNESS. WHEREOF, the Guarantors have caused this Guaranty to be executed as of the date first above written. [This page may be executed in counterparts.] GUARANTORS: MP LEMONT, LLC By: Its: Manager MARQUETTE PROPERTY INVESTMENTS, INC. By: Its President ACCEPTED: By Attest: Village Clerk Nicholas M. Ryan Bruno N. Bottarelli Richard S. Harb VILLAGE OF LEMONT, ILLINOIS