Platinum Holdings, Riverfront LeaseCITY OF DUBUQUE, IOWA
MEMORANDUM
May 31, 2001
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Platinum Holdings, LLC
The Development Agreement between the City and Platinum Holdings, LLC provides for
a closing on the Land Lease to occur on or before June 4, 2001. It was anticipated that
Platinum Holdings would need to mortgage the property as part of the financing on the
project to construct the riverfront hotel and indoor water park. Platinum Holdings has
requested consent to that mortgage and Corporation Council Barry Lindahl and City
Bond Council Bill Noth have reviewed all documents and find them to be in acceptable
form.
I respectfully recommend the Mayor and City Council approve the mortgage doCuments
and proceed to closing with Platinum Holdings.
MCVM/jh
Attachment
CC;
Michael C. Van Milligen
Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
¥i ' nbnqna
Q3Ai303U
CITY OF DUBUQUE, IOWA
MEMORANDUM
May 31, 2001
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Platinum Holdings, LLC
The Development Agreement between the City and Platinum Holdings, LLC provides for
a closing on the Land Lease to occur on or before June 4, 2001. It was anticipated that
Platinum Holdings would need to mortgage the property as part of the financing on the
project to construct the riverfront hotel and indoor water park. Platinum Holdings has
requested consent to that mortgage and Corporation Council Barry Lindahl and City
Bond Council Bill Noth have reviewed all documents and find them to be in acceptable
form.
I respectfully recommend the Mayor and City Council approve the mortgage documents
and proceed to closing with Platinum Holdings.
MCVM/jh
Attachment
CC:
Michael C. Van Milligen
Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Barry A. Lindahl, Esq.
Corporation Counsel
196 Dubuque Building
700 Locust Street
Dubuque, Iowa 52001-6824
(319) 583-4113
(319) 583-1040 FAX
E-maili baiesqC~hnwci.net
May 30, 2001
Mr. Michael Van Milligen, City Manager
~ty Hall - City Manager's Office
50 West 13th Street
Dubuque, IA 52001
RE: Platinum Holdings, L.L.C.
Dear Mike:
Plat'mum Holdings, L.L.C. has requested that the City consent to a mortgage of the property
upon which the hotel and water park will be constructed in favor of American Trust & Savings
Bank and that the City further consent to subordinate its interest in the property to the mortgage.
Platinum has also requested the Cky's consent to an assignment of the Amended Development
Agreement, Lease Agreement and Parking Use Agreement to American Trust & Savings Bank as
security for the Bank's loans to Platinum for construction of the hotel and water park.
City Bond Counsel Bill Noth and I have reviewed the documents and find that they are
acceptable in form.
Enclosed is a Resolution approving the documents for the City Council meeting of June 4, 2001.
I would request that you submit the Resolution and accompanying documents to the City Council
for action.
Barry Lindahl
'Corporation Counsel
BAL/jm
Enclosure
Wayne Norman, Esq.
Thomas Johnson, Esq.
Service People Integrity- Responsibility Innovation Teamwork
RESOLUTION NO. 248-01
APPROVING A CONSENT AND SUBORDINATION TO MORTGAGE
AGREEMENT FOR PLATINUM HOLDINGS, L.L.C. IN FAVOR OF
AMERICAN TRUST AND SAVINGS BANK AND ASSIGNMENTS OF THE
AMENDMED DEVELOPMENT AGREEMENT, LEASE AGREEMENT AND
PARKING USE AGREEMENT BY PLATINUM HOLDINGS, L.L.C. TO
AMERICAN TRUST AND SAVINGS BANK
WHEREAS, the City of Dubuque (City) has entered into an Amended
Development Agreement, Lease Agreement and Parking Use Agreement with Platinum
Holdings, L.L.C. (Platinum) for the development of certain property owned by City (the
Property) for a hotel and water park;
AND WHEREAS, Platinum has requested that City consent to a mortgage of the
Property in favor of American Trust & Savings Bank (the Bank) and that City
subordinate its interests in the Property to the mortgage, a copy of which Consent and
Subordination to Mortgage is attached hereto;
AND WHEREAS, Plainfrffhas further requested that City consent to the
assignment of the Development Agreement, Lease Agreement and Parking Use
Agreement by Plainfiffto the Bank as security for Bank's loans to Platinum, copies of
which Assignments are attached hereto;
AND WHEREAS, the City Council funds that it is in the best interests of the City
to approve ?htinm's request..
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA, AS FOLLOWS:
1. The Consent and Subordination to Mortgage, Assignment of Amendment
Development Agreement, Assignment of Lease Agreement, and Assignment of Parking
Use Agreement, attached hereto, are hereby approved.
2. The Mayor Pro Tern is hereby authorized and directed to execute the
documents on behalf of the City.
Passed, approved and adopted this 4th day of June, 2001.
Joseph T. Robbins, Mayor Pro Tern
Attest: Jeanne F. Schneider, City Clerk
Prepared by: Wayne A. Norman, Jr., Norman, Gilloon, Wright & Hamel, P.C., 800 Town Clock Plaza, P.O. Box 857, Dubuque, IA 52004-0857
(319) 556-6433
SPACE ABOVE THIS LINE
FOR RECORDER
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY
BY ANOTHER WRITTEN AGREEMENT.
ASSIGNMENT OF LEASE AGREEMENT
This Assignment of Lease Agreement ("Agreement") is effective ,2001, among
Platinum Holdings, L.L.C., an Iowa limited liability company, Lessee, ("Borrower"), City of Dubuque, Iowa
("Lessor") and American Trust & Savings Bank ("Bank").
Recltals. Borrower has leased from the Lessor certain real
property under a Lease dated June __, 2001, a copy of which is
attached as Exhibit A ("Lease"). Bank has authorized the
making of certain loans to Borrower by virtue of a Loan
Agreement executed by Borrower and Bank dated ,
2001, ("Loans"). The Loans are for the benefit of both
Borrower and Lessor insofar as funds from the Loans will be
used for the benefit of the business conducted on the leased
premises. In consideration of the promises contained in this
Agreement, and of the disbursement of part or all of the Loans
by Bank, Borrower, with the consent of Lessor, assigns to Bank
its rights under the Lease during the remainder of its term,
including all extensions and renewals. This Agreement is for
the sole purpose of securing payment of all amounts due by the
Borrower to the Bank under the Loans, together with and
including any refinancing, renewal or extension of such
indebtedness. Upon payment in full of all indebtedness
secured by this Agreement, this Agreement and the security
interest created hereby shall become null and void and of no
further force or effect.
2. Borrower and Lessor Further Covenant and Agree:
Page 1 of 5
Borrower is not now in default in the performance of the
Lease; Borrower and Lessor will each comply with the
terms of the Lease for the term of the Loans and any
extensions or renewals.
o
2.2.
2.4.
wp60docsXatsb~P]afinum. Assignment of Lease-053001
Borrower and/or Lessor will not materially modify the Lease without the prior written consent
of Bank, which consent shall not be unreasonably withheld.
If Borrower defaults under the terms of the Lease, Lessor shall have the right to terminate the
Lease according to its terms: However, Lessor shall first give Bank thirty (30) days' written
notice of such default and the right, at the option of Bank, during such period, to cure such
default. During the thirty (30) day period, Lessor will take no action to enforce its claim
arising from such default without Bank's prior written consent.
If Borrower defaults in the performance of any of its obligations under the Loans, any
renewals or extensions, or of any related agreement, and Borrower has not cured such default
within the applicable cure period under the Loans or of any related agreement, then Bank, at
its option, may, upon receiving the consent of the Lessor, using such reasonable force as may
be necessary, enter said leased premises and do any one or more of the following: (1) Remove
all property of Borrower that is pledged as collateral for the Loans; (2) Sell such property;
(3)Transfer and assign the Lease and Borrower's rights in it to parties satisfactory to City and
Bank, and upon assignment the obligations of the Lease shall be binding on such transferees.
In the event that Bank undertakes the options provided in Subsections (1) or (2), it shall have
no obligation other than payment of rent accruing and performance of the terms of the Lease
dtrring the period of its possession of the premises. In the event that Bank transfers the Lease
as provided in Subsection (3), Bank will cure all defaults in said Lease, and its sole other
obligation shall be the payment of rent which accrued prior to the transfer of said Lease and
the pm~formance of the terms of the Lease prior to the transfer.
Subordination. Lessor subordinates any lien it has or may
have on the property of Borrower that is or may be security
for the Loans to Bank's liens on Borrower's property, and to
Bank's rights under this Agreement.
Warranty of Title. Lessor warrants that title to the leased
premises is held by it in fee simple and that it has full
power and authority to enter into this Agreement.
Notices. Ail notices under this Agreement shall be in writing
and shall be deemed delivered if delivered in person, if sent
by certified mail (postage prepaid, return receipt requested),
telegraph or facsimile, as follows:
If to Bank:
American Trust & Savings Bank
Attn.: Jeffrey L. Vorwald or
Victoria J. Richter
895 Town Clock Plaza
P.O. Box 857
Page 2 of 5
Dubuque, IA 52004-0938
If to Borrower:
If to Lessor:
PlatinumHoldlngs, L.L.C.
Attn.: James P. Rix, Manager
801 Jackson Street
Dubuque, IA 52001
City of Dubuque, Iowa
Attn.: City Manager
City Hall
50 West 13th Street
Dubuque, IA 52001
Applicable Law; Severability. This Agreement shall be subject
to, construed and enforced in accordance with the laws of the
State of Iowa. If any provision of this Agreement is held
invalid under applicable Law, such invalidity shall not affect
any other provision of this Agreement that can be given effect
without the invalid provision, and to this end, the provisions
hereof are severable.
Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted
assigns of the parties. Neither Borrower nor Lessor shall
assign any of its rights or obligations hereunder without the
prior written consent of Bank.
InterDretatlon; Headings. Words and phrases herein shall be
interpreted and understood according to the context in which
they are used. The headings in this Agreement are intended
solely for convenience of reference, and shall be given no
effect in the construction or interpretation of this
Agreement.
Entire Agreement; CounterDarts; Remedies Cumulative. This
Agreement, including any Exhibits, all of which are
incorporated by this reference, and the documents executed and
delivered pursuant hereto, constitute the entire agreement
between the parties, and may be amended only by a writing
signed by each party. All agreements, instruments and
documents referred to in this Agreement are by this reference
made a part of this Agreement for all purposes. This
Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
The parties shall have, in addition to the rights and remedies
provided by this Agreement, all those allowed by all
applicable laws, all of which shall be in extension of and not
in limitation of those provided hereunder.
Page 3 of 5
t0.
11.
Waivers. Except as herein expressly provided, no waiver by
either party of any breach of this Agreement, or of any
warranty or representation hereunder, shall be deemed to be a
waiver by the same party of any other breach of any kind or
nature (whether preceding or succeeding the breach in
question, and whether or not of the same or similar nature).
10.1. No acceptance by a party of payment or performance
after any such breach shall be deemed to be a waiver of
any breach of this Agreement or of any representation or
warranty hereunder (unless such payment or performance
cures such breach), whether or not the party knows of the
breach when it accepts such payment or performance.
10.2. No failure by a party to exercise any right it may
have under this Agreement or under law upon another
party's default, and no delay in the exercise of that
right, shall prevent it from exercising the right
whenever the other party continues to be in default. No
such failure or delay shall operate as a waiver of any
default or as a modification of the provisions of this
Agreement.
Attorneys Fees. If any action at law or in equity, including
an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorney's fees
and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of
such action or by the arbitrator, as the case may be, or may
be enforced in a separate action brought for that purpose.
Such fees and costs of litigation shall be in addition to any
other relief which may be awarded.
Effective as of the date first written above.
Platinum Holdings, L.L.C.
City of Dubuque, Iowa
By:
James P. Rix, Manager
American Trust & Savings Bank
By:
Jeffrey L. Vorwald, Vice President
By:
Joseph T. Robbins,
Mayor Pro-Tem
By:
Jeanne F. Schneider,City Clerk
Page 4 of 5
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared James P. Rix, to me personally known, who being by me duly sworn,
did say that he is the Manager of the limited liability company executing the within and foregoing insmunent to
which this is attached; that said instrument was signed on behalf of the limited liability company by authority
of its Managers; and that James P. Rix, as Manager, acknowledged the execution of the foregoing instrument
to be the voluntary act and deed of the limited liability company, by it and by him voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Joseph T. Robbins, and Jeanne F. Schneider, to me personally known,
who, being by me duly sworn, did say that they are the Mayor Pro-Tern and City Clerk, respectively, of the
City of Dubuque, Iowa, executing the within and foregoing instrument, that no seal has been procured by the
corporation; that said instrument was signed on behalf of the City by authority of ils City Council; and that
Joseph T. Robbins and Jeanne F. Schneider, as Mayor Pro-Tern and City Clerk, respectively, acknowledged
the execution of the foregoing instrument to be the voluntary act and deed of the City, by it and by them
voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Jeffrey L. Vorwaid, to me personally known, who being by me duly
sworn, did say that he is an officer of the Bank executing the within and foregoing instrument to which this is
attached; that said instrument was signed on behalf of the Bank by authority of its Board of Directors; and that
Jeffrey L. Vorwald, as officer of the Bank, acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the Bank, by it and by him voluntarily executed.
Notary Public, State of Iowa
Page 5 of 5
CONSENT AND SUBORDINATION TO MORTGAGE
Re: Certain Real Estate Described on Exhibit A, Attached.
The undersigned City of Dubuque, Iowa ("City"), is the owner of the above-described property ("the
Property") described in the mortgage ("the Mortgage") to which this Consent and Subordination to Mortgage is
attached,, and hereby consents to the mortgaging of the Property by Platinum Holffmgs, L.L.C., an Iowa lira/ted
liability company (Platinum), in favor of American Trust & Savings Bank, Dubuque, Iowa (Bank), in an amount
not to exceed Fourteen Million Eight Hundred Thousand & 00/100 Dollars ($14,800,000.00). City further
consents that the interest o,reed by City shall be subordinate,junior and inferior to the mortgage established in
favor of Bank, subject to the following:
In the event foreclosure is brought, City consents to being named a party defendant for the purposes of
foreclosing its interests in the Property, but with no personal liability being incurred or any deficiency
judgment resulting by or against City.
In the event of any foreclosure by Bank, Bank agrees to be bound by the terms and conditions of that
certain Minimtma Assessment Agreement entered into between City and Platinum on
2001, and that certain Amended Development Agreement entered into between City and Platinum on
_, 2001, with respect to the Property.
City agrees that this Consent and Subordination to Mortgage document will be attached to, and
become a part of, the executed Mortgage between Bank and Platinum.
Bank executes this Consent and Subordination to Mortgage solely for the purpose of agreeing to be
bound by the terms of the agreements referred to in Section 2, above, in the event of foreclosure by
Bank.
Dated ,2001.
City of Dubuque, Iowa
American Trust & Savings Bank
By:
By:
Joseph T. Robbins, Mayor Pro-Tern
Jeanne F. Schneider, City Clerk
By:
Jeffrey L. Vorwald,
Vice President
STATE OF IOWA, DUBUQUE COUNTY) ss:
wp60docs~atsb\Plafinum. Mortgage Consent & Subordinatlon-053001
Page l of 2
On this _ day of .......... 2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Joseph T. Robbins and Jeanne F. Schneider, to me personally known,
who, being by me duly sworn, did say that they are the Mayor Pro-Tern and Ciw Clerk, respectively, of the City
of Dubuque, Iowa, executing the within and foregoing insWament, that no seal has been procured by the
corporation; that said instrument was signed on behalf of the City by anthority of its City Council; and that
Joseph T. Robbins and Jeanne F. Schneider, as Mayor Pro-Tern and City Clerk, respectively, acknowledged the
execution of the foregoing instrument to be the voluntary act and deed of the City, by it and by them voluntarily
executed.
Notm¥ Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this ____ day of ...... 2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Jeffrey L. Vorwald, to me personally known, who, being by me duly
sworn, did say that he is the Vice President of American Trust & Savings Bank executing the w/thin and
foregoing inslrument~ that no seal has been procured by the corporation; that said instamment was signed on
behalf of the corporation by authority of its Board of Directors; and that Jeffrey L. Vorwald, as Vice President,
acknowledged the execution of the foregoing insirument to be the voluntary act and deed of the corporation, by
it and by him voluntarily executed.
Notary Public, State of Iowa
Page 2 of 2
Prepared by: Wayne A. Norman, Jr., Norman, Gilloon, Wright & Hamel, P.C., 800 Town Clock Plaza, P.O, Box 857, Dubuque, IA 5201M-0857
(319) 556-6433
SPACE ABOVE THIS LINE
FOR RECORDER
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY
BY ANOTHER WRITTEN AGREEMENT.
ASSIGNMENT OF AMENDED DEVELOPMENT AGREEMENT
This Assignment of Amended Development Agreement ("Agreement") is effective
, 2001, among Platinum Holdings, L.L.C., an Iowa limited liability company
("Borrower"), City of Dubuque, Iowa ("City") and American Trust & Savings Bank ("Bank").
Recitals. Effective January 15, 2001, Borrower entered into
an Amended Development Agreement ("Development Agreement") with
City under which Borrower will lease from City approximately
3.5 acres of land within the Ice Harbor Urban Renewal
District, located within the City, for the purpose of
redeveloping such property. A copy of said Development
Agreement, as subsequently amended, is attached as F~hlbit A.
Bank has authorized the making of certain loans to Borrower
by virtue of a Loan Agreement executed by Borrower and Bank
effective , 2001, ("Loans"). The Loans are for the
benefit of both Borrower and City insofar as funds from the
Loans will be used for redevelopment purposes under the
Development Agreement. In consideration of the promises
contained in this Agreement, and of the disbursement of part
or all of the Loans by Bank, Borrower, with the consent of
City, assigns to Bank its rights under the Development
Agreement during the remainder of its term, including all
extensions and renewals. This Agreement is for the sole
purpose of securing payment of all amounts due by the Borrower
Page 1 of 5
to the Bank under the Loans, together with and including any
refinancing, renewal or extension of such indebtedness. Upon
payment in full of all indebtedness secured by this Agreement,
this Agreement and the security interest created hereby shall
become null and void and of no further force or effect.
wp60docs~atsbWlatinur~ Assigamcnt - Development Agreeracnt-053001
Borrower and City Further Covenant and Agree:
Borrower is not now in default in the performance of the
Redevelopment Agreement; Borrower and City will each
comply with the terms of the Development Agreement for
the term of the Loans and any extensions or renewals.
2.2.
Borrower and/or City will not materially modify the
Development Agreement without the prior written consent
of Bank, which shall not be unreasonably withheld.
2.3.
If Borrower defaults under the terms of the Development
Agreement, City shall have the right to terminate the
Redevelopment Agreement according to its terms. However,
City shall first give Bank thirty (30) days' written
notice of such default and the right, at the option of
Bank, during such period, to cure such default. During
the thirty (30) day period, City will take no action to
enforce its claim arising from such default without
Bank's prior written consent.
2.4.
If Borrower defaults in the performance of any of its
obligations under the Loans, any renewals or extensions,
or of any related agreement, and Borrower has not cured
such default within the applicable cure period under the
Loans or of any related agreement, then Bank, at its
option, may, upon receiving the written consent of the
City, transfer and assign the Development Agreement and
Borrower's rights in it to parties reasonably
satisfactory to City and Bank, and upon assignment the
obligations of the Redevelopment Agreement shall be
binding on such transferees. In that event, Bank shall
have no obligation other than performance of the terms of
the Development Agreement during the period of its
possession of the premises. In the event that Bank
transfers the Redevelopment Agreement as provided above,
Bank will cure all defaults in said Redevelopment
Agreement.
Notices. Ail notices under this Agreement shall be in writing
and shall be deemed delivered if delivered in person, if sent
by certified mail (postage prepaid, return receipt requested),
telegraph or facsimile, as follows:
Page 2 of 5
If to Bank:
American Trust & Savings Bank
Attn.: Jeffrey L. Vorwald or
Victoria J. Richter
895 Town Clock Plaza
P.O. Box 857
Dubuque, IA 52004-0938
If to Borrower: Platinum Holdlngs, L.L.C.
Attn.: James P. Rix, Manager
801 Jackson Street
Dubuque, IA 52001
If to City:
City of Dubuque, Iowa
Attn.: City Manager
City Hall
50 West 13th Street
Dubuque, IA 52001
ApDlicable Law; Severability. This Agreement shall be subject
to, construed and enforced in accordance with the laws of the
State of Iowa. If any provision of this Agreement is held
invalid under applicable Law, such invalidity shall not affect
any other provision of this Agreement that can be given effect
without the invalid provision, and to this end, the provisions
hereof are severable.
Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted
assigns of the parties. Neither Borrower nor City shall
assign any of its rights or obligations hereunder without the
prior written consent of Bank.
InterDretation; Headings. Words and phrases herein shall be
interpreted and understood according to the context in which
they are used. The headings in this Agreement are intended
solely for convenience of reference, and shall be given no
effect in the construction or interpretation of this
Agreement.
Entire Agreement; CounterDarts; Remedies Cumulative. This
Agreement, including any Exhibits, all of which are
incorporated by this reference, and the documents executed and
delivered pursuant hereto, constitute the entire agreement
between the parties, and may be amended only by a writing
signed by each party. All agreements, instruments and
documents referred to in this Agreement are by this reference
made a part of this Agreement for all purposes. This
Page 3 of 5
o
Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
The parties shall have, in addition to the rights and remedies
provided by this Agreement, all those allowed by all
applicat)le laws, all of which shall be in extension of and not
in limitation of those provided hereunder.
Waivers. Except as herein expressly provided, no waiver by
either party of any breach of this Agreement, or of any
warranty or representation hereunder, shall be deemed to be a
waiver by the same party of any other breach of any kind or
nature (whether preceding or succeeding the breach in
question, and whether or not of the same or similar nature).
No acceptance by a party of payment or performance after
any such breach shall be deemed to be a waiver of any
breach of this Agreement or of any representation or
warranty hereunder (unless such payment or performance
cures such breach), whether or not the party knows of the
breach when it accepts such payment or performance.
8.2.
No failure by a party to exercise any right it may have
under this Agreement or under law upon another party's
default, and no delay in the exercise of that right,
shall prevent it from exercising the right whenever the
other party continues to be in default. No such failure
or delay shall operate as a waiver of any default or as a
modification of the provisions of this Agreement.
Attorney's Fees. If any action at law or in equity, including
an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorney's fees
and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of
such action or by the arbitrator, as the case may be, or may
be enforced in a separate action brought for that purpose.
Such fees and costs of litigation shall be in addition to any
other relief which may be awarded.
Effective as of the date first written above.
Page 4 of 5
Platinum Holdings, L.L.C.
City of Dubuque, Iowa
By: By:
James P. Rix, Manager
American Trust & Savings Bank
Joseph T. Robbins,
Mayor Pro-Tem
By:
Jeanne F. Schneider, City Clerk
By:
Jeffrey L. Vorwald, Vice President
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of ,2001, before me, the undm'signed, a Notary Public in and for
the State of Iowa, personally appeared James P. Rix, to me personally known, who being by me duly sworn,
did say that he is the Manager of the limited liability company executing the within and foregoing insmunent to
which this is attached; that said instrument was signed on behalf of the limited liability company by authority
of its Managem; and that James P. Rix, as Manager, acknowledged the execution of the foregoing instrument
to be the voluntary act and deed of the limited liability company, by it and by him voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Joseph T. Robbins and Jeanne F. Schneider, to me personally known,
who, being by me duly sworn, did say that they are the Mayor Pro-Tern and City Clerk, respectively, of the
City of Dubuque, Iowa, executing the within and foregoing instrument, that no seal has been procured by the
corporation; that said instrument was signed on behalf of the City by authority of its City Council; and that
Joseph T. Robbins and Jeanne F. Schneider, as Mayor Pro-Tem and City Clerk, respectively, acknowledged
the execution of the foregoing insmmaent to be the voluntary act and deed of the City, by it and by them
voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Jeffrey L. Vorwald, to me personally known, who being by me duly
sworn, did say that he is an officer of the Bank executing the within and foregoing instrument to which this is
attached; that said instrument was signed on behalf of the Bank by authority of its Board of Directors; and that
Jeffrey L. Vorwald, as officer of the Bank, acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the Bank, by it and by him vohmtafily executed.
Notary Public, State of Iowa
Page 5 of 5
Prepared by: Wayne A. Norman, Jr., Norman, Gilloon, Wright & Hamel, P.C., 800 Town Clock Plaza, P.O. Box 857, Dubuque, IA 52004-0857
(319) 556-6433
SPACE ABOVE THIS LINE
FOR RECORDER
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY
BY ANOTHER WRITTEN AGREEMENT.
ASSIGNMENT OF PARKING USE AGREEMENT
This Assignment of Parking Use Agreement ("Agreement") is effective ,2001,
among Platinum Holdings, L.L.C., an Iowa limited liability company, Lessee, ("Borrower"), City of
Dubuque, Iowa ("Lessor") and American Trust & Savings Bank ("Bank").
Recitals. Borrower has entered in to a Parking Use Agreement
with Lessor effective June . , 2001, a copy of which is
attached as ~/~ib£t A ("Use Agreement"). Bank has authorized
the making of certain loans to Borrower by virtue of a Loan
Agreement executed by Borrower and Bank dated
2001, ("Loans"). The Loans are for the benefit of both
Borrower and Lessor insofar as funds from the Loans will be
used for the benefit of the business which is the subject of
other agreements between Borrower and Lessor. In
consideration of the promises contained in this Agreement, and
of the disbursement of part or all of the Loans by Bank,
Borrower, with the consent of Lessor· assigns to Bank its
rights under the Use Agreement during the remainder of its
term, including all extensions and renewals. This Agreement
is for the sole purpose of securing payment of all amounts due
by the Borrower to the Bank under the Loans, together with and
including any refinancing, renewal or extension of such
indebtedness. Upon payment in full of all indebtedness
secured by this Agreement, this Agreement and the security
interest created hereby shall become null and void and of no
further force or effect.
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Borrower and Lessor Further Covenant and Agree:
Borrower is not now in default in the performance of the
Use Agreement; Borrower and Lessor will each comply with
the terms of the Use Agreement for the term of the Loans
and any extensions or renewals.
2.2.
wp60does~atsbXPlalinum. Assignment of Use Agreement-05300I
Borrower and/or Lessor will not materially modify the Use Agreement without the prior
written consent of Bank, which consent shall not be tm_reasonably withheld.
2.3.
If Borrower defaults under the terms of the Use Agreement, Lessor shall have the right to
terminate the Use Agreement according to its terms. However, Lessor shall first give Bank
thirty (30) days' written notice of such default and the right, at the option of Bank, during
such period, to cure such default. During the thirty (30) day period, Lessor will take no action
to enforce its claim arising from such default without Bank's prior written consent.
2.4.
If Borrower defaults in the performance of any of its obligations under the Loans, any
renewals or extensions, or of any related agreement, and Borrower has not
cured such default within the applicable cure period under the Loans or of
any related agreement, then Bank, at its option and upon receiving the
written consent of the Lessor, may assume and complete Borrower's
obligations under the Use Agreement, or may transfer and assign the Use
Agreement and Borrower's rights in it to parties reasonably satisfactory to
City and Bank. Upon assignment the obligations of the Use Agreement shall
be binding on such tmusferees.
Warranty of Title. Lessor warrants that title to the leased
premises is held by it in fee simple and that it has full
power and authority to enter into this Agreement.
Notices. All notices under this Agreement shall be in writing
and shall be deemed delivered if delivered in person, if sent
by certified mail (postage prepaid, return receipt requested),
telegraph or facsimile, as follows:
If to Bank:
American Trust & Savings Bank
Attn.: Jeffrey L. Vorwald or
Victoria J. Richter
895 Town Clock Plaza
P.O. Box 857
Dubuque, IA 52004-0938
If to Borrower: Platinum Holdings, L.L.C.
Attn.: James P. Rix, Manager
801 Jackson Street
Dubuque, IA 52001
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If to Lessor:
City of Dubu~e, Iowa
Attn.: City Manager
City Hall
50 West 13th Street
Dubuque, IA 52001
Applicable Law; Severability. This Agreement shall be subject
to, construed and enforced in accordance with the laws of the
State of Iowa. If any provision of this Agreement is held
invalid under applicable Law, such invalidity shall not affect
any other provision of this Agreement that can be given effect
without the invalid provision, and to this end, the provisions
hereof are severable.
Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted
assigns of the parties. Neither Borrower nor Lessor shall
assign any of its rights or obligations hereunder without the
prior written consent of Bank.
Interpretation; Headings. Words and phrases herein shall be
interpreted and understood according to the context in which
they are used. The headings in this Agreement are intended
solely for convenience of reference, and shall be given no
effect in the construction or interpretation of this
Agreement.
Entire Agreement; Counterparts; Remedies Cumulative. This
Agreement, including any Exhibits, all of which are
incorporated by this reference, and the documents executed and
delivered pursuant hereto, constitute the entire agreement
between the parties, and may be amended only by a writing
signed by each party. Ail agreements, instruments and
documents referred to in this Agreement are by this reference
made a part of this Agreement for all purposes, This
Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
The parties shall have, in addition to the rights and remedies
provided by this Agreement, all those allowed by all
applicable laws, all of which shall be in extension of and not
in limitation of those provided hereunder.
Waivers. Except as herein expressly provided, no waiver by
either party of any breach of this Agreement, or of any
warranty or representation hereunder, shall be deemed to be a
waiver by the same party of any other breach of any kind or
nature (whether preceding or succeeding the breach in
question, and whether or not of the same or similar nature).
Page 3 of 5
No acceptance by a party of payment or performance after
any such breach shall be deemed to be a waiver of any
breach of this Agreement or of any representation or
warranty hereunder (unless such payment or performance
cures such breach), whether or not the party knows of the
breach when it accepts such payment or performance.
9.2.
No failure by a party to exercise any right it may have
under this Agreement or under law upon another party's
default, and no delay in the exercise of that right,
shall prevent it from exercising the right whenever the
other party continues to be in default. No such failure
or delay shall operate as a waiver of any default or as a
modification of the provisions of this Agreement.
10.
Attorneys Fees. If any action at law or in equity, including
an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorney's fees
and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of
such action or by the arbitrator, as the case may be, or may
be enforced in a separate action brought for that purpose.
Such fees and costs of litigation shall be in addition to any
other relief which may be awarded.
Effect£ve as of the date first written above.
Platinum Holdings, L.L.C.
City of Dubuque, Iowa
By:
J~nes P. Rix, Manager
American Trust & Savings Bank
By:
Jeffrey L. Vorwald, Vice President
By:
Joseph T. Robbins,
Mayor Pro-Tem
By:
Jeanne F. Schneider,
City Clerk
Page 4 of 5
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared James P. Rix, to me personally kno~vn, who being by me duly sworn,
did say that he is the Manager of the limited liability company executing the within and foregoing insmunent to
which this is attached; that said insmunent was signed on behalf of the limited liability company by authority
of its Managers; and that James P. Rix, as Manager, acknowledged the execution of the foregoing instrument
to be the voluntary act and deed of the limited liability company, by it and by him voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this dayof ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Joseph T. Robbins and Jeanne F. Schneider, to me personally known,
who, being by me duly sworn, did say that they are the Mayor Pro-Tern and City Clerk, respectively, of the
City of Duhnque, Iowa, executing the within and foregoing instrument, that no seal has been procured by the
corporation; that said instrument was signed on behalf of the City by authority of its City Council; and that
Joseph T. Robbins and Jeanne F. Schneider, as Mayor Pro-Tern and City Clerk, respectively, acknowledged
the execution of the foregoing instnnnent to be the voluntary act and deed of the City, by it and by them
voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this dayof ,2001, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared Jeffrey L. Vorwald, to me personally known, who being by me duty
sworn, did say that he is an officer of the Bank executing the within and foregoing insmunent to which this is
attached; that said instrument was signed on behalf of the Bank by authority of its Board of Directors; and that
Jeffrey L. Vorwald, as officer of the Bank, acknowledged the execution of the foregoing instmmant to be the
voluntary act and deed of the Bank, by it and by him voluntarily executed.
Notary Public, State of Iowa
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