R-02-07 01/08/2007Jan. 2. 2007 6:32PM RNTONOPOULOS & VIRTEL PC No.4056 P. 2
RESOLUTION NOP - -07
WHEREAS, HomeWerks- Lemont, LLC, a limited liability company ( "HomeWerks "), the
beneficiary of a Recapture Agreement dated October 23, 2006 granting HomeWerks the right to
recapture certain costs and expenses in connection with an extension of sanitary sewer and water
main; and
WHEREAS, HomeWerks has entered into a Construction Loan Agreement dated September
28, 2005, which agreement requires HomeWerks to collaterize its rights under said Recapture
Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF LEMONT, COUN ImS OF COOK, WILL AND DUPAGE,
AS FOLLOWS:
That the attached Collateral Assignment of Rights Under Recapture Agreement is hereby
approved and that the Mayor and Village Clerk are hereby authorized to execute said
acknowledgment.
PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE
VILLAGE QF LEMONT, COUNTIES OF COOK, WILL AND DUPAGE, ILLINOIS on this
5lx" day of , 2007.
Brian Reaves
Debby Blatzer
Peter Coules
Ron Stapleton,
Jeanette Virgilio
AYES NAYS ABSENT ABSTAIN
1%
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Approved by me this b4" day of
2007.
JO F. PIAZZA Vi11. r_e "sident
MOLLEN, Village Clerk
c: /coleeri/mydocuments/vill agdhomewellcs resolution
This instrument was prepared
by and, after recording,
return to:
Robert N. Sodikoff
Aronberg Goldgehn Davis &
Garmisa
330 North Wabash - Suite 3000
Chicago, Illinois 60611
Space above this line for Recorder's use only
COLLATERAL ASSIGNMENT OF RIGHTS UNDER RECAPTURE AGREEMENT
THIS COLLATERAL ASSIGNMENT OF RIGHTS UNDER RECAPTURE
AGREEMENT is made effective this 15` day of December, 2006 by HOMEWERKS-
LEMONT, LLC, an Illinois limited liability company ( "HomeWerks ") with offices at c/o
HomeWerks Development Company, 700 East Diehl Road, Suite 130, Naperville, Illinois 60563
and MIDWEST BANK AND TRUST COMPANY, an Illinois banking corporation ( "Lender ")
with offices at 500 West Chestnut Street, Hinsdale, Illinois 60521, Attention: Mary Henthorn,
Executive Vice President.
RECITALS
A. HomeWerks and Lender are parties to that certain Construction Loan Agreement
dated September 28, 2005, as amended or modified from time to time (the "Loan Agreement ")
pursuant to which Lender has agreed to loan to HomeWerks and HomeWerks has agreed to
borrow from Lender (i) a construction loan not to exceed $13,500,000.00 (the "Loan"), and
(ii) an additional loan of $4,953,029 (the "Term Loan").
B. A portion of the proceeds of the Loan have been used and in the future will be
used to construct and install water mains and sanitary sewers serving the Project (as defined in
the Loan Agreement) and will benefit an area beyond the Property owned by HomeWerks.
HomeWerks and the Village of Lemont have entered into a Recapture Agreement dated October
23, 2006 (the "Recapture Agreement ") permitting HomeWerks the right to recapture the costs of
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the water mains and sewers so constructed and installed, in accordance with the terms of the
Recapture Agreement. The Recapture Agreement is recorded as follows:
Recorder Office Document No.
C. To secure payment and performance of HomeWerk's obligations and liabilities
under the Loan Agreement, HomeWerks has, among other things, agreed to grant a security
interest and assign to Lender all of its rights under various contracts relating to the Project,
including but not limited to the Recapture Agreement.
NOW THEREFORE, in consideration of the Recitals and of the covenants and conditions
hereinafter contained and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, HomeWerks represents, warrants and covenants on behalf of
Lender as follows:
1. Incorporation by Reference. The foregoing Recitals are incorporated in this
Agreement as though fully set forth herein. Capitalized terms not otherwise defined herein have
the meaning ascribed to them in the Loan Agreement.
2. Grant of Security Interest. To secure the payment and performance by
HomeWerks of its Obligations and Liabilities under the Loan Agreement and other Loan
Documents, HomeWerks has granted and does hereby grant a security interest in and assigns to
Lender all of its rights, title and interest in, to and under the Recapture Agreement, including the
right to receive Recapture Fees, as described therein.
3. Obligations Secured. This Collateral Assignment is given to secure payment of
(i) the Loan; (ii) the Term Loan; (iii) any other obligations, liabilities or indebtedness which may
be due and owing from HomeWerks to Lender, or by any guarantor of the Loan, whether such
obligations, liabilities or indebtedness are now existing or hereafter created, direct or indirect,
absolute or contingent, joint or several, due or to become due, howsoever created, evidenced or
arising and howsoever acquired by Lender, and any and all renewals, extensions or refinancings
thereof; and (iv) all costs and expenses paid or incurred by Lender in enforcing its rights
hereunder, including without limitation, court costs and attorneys' fees.
4. Representations and Warranties of Assignor. HomeWerks represents and
warrants to Lender that:
(a) This Collateral Assignment, as executed by HomeWerks, constitutes the
legal and binding obligation of HomeWerks enforceable in accordance with its terms and
provisions;
(b) HomeWerks has not heretofore made and will not in the future make any
other assignment of all or any part of its interest in, to or under the Recapture Agreement
or to the Recapture Fees; and
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(c) HomeWerks has not heretofore executed any instrument or performed any
act which may or might prevent Lender from operating under any of the terms and
provisions hereof or which would limit Lender in such operation.
5. Covenants of Assignor. HomeWerks covenants and agrees that so long as this
Collateral Assignment shall be in effect:
(a) Homewerks shall observe and perform all of the covenants, terms,
conditions and agreements contained in the Recapture Agreement to be observed or
performed by HomeWerks thereunder, and HomeWerks shall not do or suffer to be done
anything to impair the security thereof, or without the express written consent of Lender,
release the liability of any party or delay the collection of any Recapture Fees thereunder.
(b) HomeWerks shall enforce and shall not alter, modify or change the terms
of or terminate the Recapture Agreement.
(c) HomeWerks shall give prompt notice to Lender of any notice of any
default on the part of HomeWerks with respect to the Recapture Agreement received
from the Village of Lemont thereunder
6. Event of Default. Upon the occurrence of an Event of Default (as defined in the
Loan Agreement), and after any applicable notice or cure period, if any, Lender may, at its
election, exercise any one or more of the rights accruing or remedies set forth in the Loan
Documents and, in addition, with respect to the Recapture Agreement, Lender shall have full
power and authority to exercise all or any one or more of the remedies and shall have all the
rights of a secured party under the Uniform Commercial Code of Illinois (the "Code "). Any
requirement of the Code for reasonable notice shall be met if such notice is given at least ten (10)
business days prior to the time of sale, disposition or other event or thing giving rise to the
requirement of notice (which period and method of giving notice is hereby agreed to be
commercially reasonable.
7. No Liability by Lender. Notwithstanding anything to the contrary appearing in the
Recapture Agreement, the interest hereinabove described is assigned and transferred to Lender by
way of collateral security only and, accordingly, Lender by its acceptance hereof shall not be
deemed to have assumed or become liable for any of the obligations or liabilities of HomeWerks
under the Recapture Agreement, whether provided for by the terms thereof, arising by operation
of law or otherwise, HomeWerks hereby acknowledging and agreeing that HomeWerks is and
remains liable thereunder to the same extent as though this Collateral Assignment had not been
made.
8. Indemnity. HomeWerks agrees to indemnify, defend and hold Lender harmless
from and against any and all loss, claim, expense, damage and cost (including court costs and
reasonable attorneys' fees) which may arise from or in connection with this Collateral
Assignment.
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9. Enforcement. If at any time Lender employs counsel for advice or other
representation to enforce the security interest granted under this Collateral Assignment, all of the
expenses, costs and charges (including reasonable attorneys' fees) arising in any way in
connection therewith or relating thereto shall constitute a part of the Liabilities and Obligations
provided that they relate to the action or inaction of HomeWerks, shall be payable by
HomeWerks to Lender on demand by Lender and shall bear interest at the rate provided in the
Construction Note for interest payable after default. Notwithstanding the foregoing, if any
action, suit or proceeding is brought against Lender, HomeWerks will, upon Lender's request,
and at HomeWerks' expense, resist and defend such action, suit or proceeding or will cause the
same to be resisted and defended by counsel designated by HomeWerks and approved by Lender.
10. Binding Effect. This Collateral Assignment shall be binding upon and inure to the
benefit of Lender and HomeWerks and their respective successors and assigns.
11. Governing Law. The laws and decisions of the State of Illinois shall govern and
control the construction, enforceability, validity and interpretation of this Collateral Assignment.
12. Invalidity. If all or any portion of any provision of this Collateral Assignment or
the application thereof to any person or circumstance is declared or found by a court of
competent jurisdiction to be unenforceable or null and void to any extent, the remainder of this
Collateral Assignment and the application of such provision to other persons or circumstances
shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
13. Payments to Lender. Borrower hereby authorizes and directs the Village of
Lemont ( "Lemont ") to remit to Lender all Recapture Fees collected under the Recapture
Agreement and all other amounts payable from time to time by Lemont to HomeWerks. Lender
is hereby irrevocably authorized and empowered to ask, demand, receive and give acquittance for
any and all amounts which may be or become due or payable, or remain unpaid at any time and
times to HomeWerks by Lemont, and to endorse any checks, drafts or other orders for the
payment of money payable to HomeWerks in payment thereof, and in Lender's discretion to file
any claims or take any action or institute any proceeding, either in its own name or in the name of
HomeWerks or otherwise, which Lender may deem necessary or advisable in order to collect
Recapture Fees and all other amounts payable from time to time by Lemont to HomeWerks.
Lemont is hereby authorized to recognize Lender's claims to rights hereunder without
investigating any reason for any action taken by Lender or the application to be made by Lender
of any of the amounts to be paid to Lender hereunder and HomeWerks releases Lemont from all
liability in connection with Lemont's compliance with the instructions given herein. Checks for
all or any part of the sums payable hereunder shall be drawn to the sole and exclusive order of
Lender. The foregoing instructions, being coupled with an interest, shall be irrevocable.
14. No Further Assignments. HomeWerks hereby irrevocably directs the Village of
Lemont to accept no further assignments, sales, pledges, transfers or encumbrances of
HomeWerks' right, title and interest in, to and under the Recapture Agreement without the prior
written consent of Lender.
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15. Effective Date. This Agreement shall be effective as of the date first above
written upon execution by the parties hereto and thereupon is incorporated into the terms of the
Loan Documents. The date or dates of the acknowledgements indicate the date(s) of execution of
this Collateral Assignment but execution is as of the above date, and for purposes of
identification and reference the date of this Collateral Assignment is the above date.
[Signature page follows.]
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HomeWerks has executed and delivered this Collateral Assignment of Rights Under
Recapture Agreement as of the day and year first above written.
STATE OF ILLINOIS
) SS.
COUNTY OF COOK
ASSIGNOR:
HOMEWERKS- LEMONT, LLC,
an Illinois limited liability company
By: HOMEWERKS DEVELOPMENT COMPANY,
an Illinois corporation, its manager
By:
Angelo Palumbo, President
The undersigned, a Notary Public in and for said County, in the State aforesaid, does
hereby certify that Angelo Palumbo, the President of Homewerks Development Company, the
manager of Homewerks- Lemont, LLC (the "Company"), who is personally known to me to be
the same person whose name is subscribed to the foregoing instrument as such President
appeared before me this day in person and acknowledged that he signed and delivered the said
instrument as his own free and voluntary act and as the free and voluntary act of said Company
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal, this day of December, 2006.
# 422580.2
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Notary Public
ACCEPTANCE OF ASSIGNMENT
The undersigned hereby accepts, effective as of the 15t day of December, 2006 the
foregoing Collateral Assignment of Rights Under Recapture Agreement.
MIDWEST BANK AND TRUST COMPANY
By:
Mary Henthorn, Executive Vice President
STATE OF ILLINOIS )
) SS.
COUNTY OF DUPAGE )
The undersigned, a Notary Public in and for said County, in the State aforesaid, does
hereby certify that Mary Henthorn, the Executive Vice President of Midwest Bank and Trust
Company (the "Company"), who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such Executive Vice President appeared before me this
day in person and acknowledged that she signed and delivered the said instrument as her own
free and voluntary act and as the free and voluntary act of said Company for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal, this day of December, 2006.
Notary Public
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ACKNOWLEDGEMENT
The Village of Lemont acknowledges receipt of the Collateral Assignment of Rights
Under Recapture Agreement and agrees to pay Lender all Recapture Fees in accordance with
Section 13 of this Collateral Assignment.
ichA
dolf�i -F. Piazza, Mayer
NoLMas,
ATTEST:
Uj 1145e. Ad IAA.) t / r �foo-
Gliarlcn° Smollen, Village Clerk
den wejvn,.., i
4 ss, „t,,. )
STATE OF ILLINOIS )
/�
) SS.
COUNTY OF Ccok. )
The undersigned, a Notary Public in and for said County, in the State aforesaid, does
hereby certify that a, the Mayor of the Village of Lemont, and Charlene Smollen,
the Village Clerk, wcke personally known to me to be the same persons whose names are
subscribed to the foregoing instrument as such Mayor and Village Clerk appeared before me this
day in person and acknowledged that they signed and delivered the said instrument as their own
free and voluntary act and as the free and voluntary act of said Village of Lemont for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal, this RA day of December, 2006.
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Notary Ptbbi
OFFICIAL SEAL
ROSEMAY YATES
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 8.134008