Hodge Transit WarehouseTHE CITY OF DUBUQUE
Masterpiece on the Mississippi
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Hodge Transit Warehouse Co.
DATE: May 30, 2008
Project Manager Steve Sampson Brown is recommending approval of the Assignment
of Real Estate Lease and Agreement related to Hodge Transit Warehouse Co. As part
of refinancing, the City is required to consent to the transfer of assignment between
Hodge Transit Warehouse Co. from US Bank (formerly First National Bank of Dubuque)
to Dubuque Bank & Trust Company.
concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/gd
Attachs.
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
THE CITY OF DUBUQUE
Masterpiece on the Mississippi
2007
TO: Michael C. Van Milligen, City Manager
FROM: Steve Sampson Brown, Project Manager
SUBJECT: Hodge Transit Warehouse Co.
DATE: May 30, 2008
INTRODUCTION
This is in response to a May 30, 2008 request of Hodge Transit Warehouse Co. (Hodge
Transit) to the City Council to approve an assignment of its existing lease from US Bank
(formerly First National Bank of Dubuque) to Dubuque Bank & Trust Company.
DISCUSSION
Hodge Transit Warehouse Co. leases a property from the City of Dubuque pursuant to a
lease dated April 28, 1969. Hodge Transit is assigning its interest as Lessee in this
agreement from US Bank (formerly First National Bank of Dubuque) to Dubuque Bank &
Trust Company. The assignment transfers and assigns to Dubuque Bank & Trust
Company all of Hodge Transit's rights, titles and interest in the above lease in order to
refinance for constructing improvements to the leased premises.
The existing lease with Hodge Transit allows the assignment of the lease with the prior
written approval of the City, to the extent that the City's interest shall be fully protected.
The lease also provides that the City shall not unreasonably withhold such assignment.
RECOMMENDATION
The requested lease assignment has been reviewed by the City Attorney, and the City
Council is requested to adopt the attached resolution consenting to the assignment of
the lease between Hodge Transit Warehouse Co. and the City of Dubuque from US
Bank to Dubuque Bank & Trust Company.
RESOLUTION NO. 182-08
RESOLUTION AUTHORIZING THE ASSIGNMENT OF A CERTAIN LEASE
BETWEEN THE CITY OF DUBUQUE, IOWA, AND HODGE TRANSIT
WAREHOUSE COMPANY FROM US BANK TO DUBUQUE BANK & TRUST
COMPANY FOR SECURITY
Whereas, the City of Dubuque, Iowa (City) has leased to Hodge Transit
Warehouse Company, an Iowa Corporation (Lessee) certain real property
located at 1111 Purina Drive, Dubuque, Iowa pursuant to a lease dated April 28,
1969.
Whereas, Dubuque Bank & Trust Company has agreed to lend Lessee
certain sums of money for the purpose of constructing improvements to the
leased premises for the benefit of the business to be conducted upon the leased
premises; and
Whereas, the lease agreements between the City of Dubuque and Hodge
Transit Warehouse Company allows an assignment of the lease by the Lessee at
its option upon prior written approval of the City; and
Whereas, the City Council of the City of Dubuque, Iowa has determined
that it is in the best interest of the City of consent to such assignment.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The Assignment of Real Estate Lease and Agreement
attached hereto by Hodge Transit Warehouse Co. from US Bank to Dubuque
Bank & Trust Company is hereby approved.
Section 2. The Mayor is authorized and directed to sign said Assignment
of Real Estate and Agreement on behalf of the City of Dubuque, Iowa.
2008.
Passed, approved and adopted this
2nd day of June
Attest:
Jeanne F. Schneider, CMC, City Clerk
Roy D. Buol, Mayor
Prepared By: David L. Clemens, Clemens, Walters, Conlon & Meyer, L:L.P., 2080 Southpark Court,
PJubuque, IA 52003 (583)582-2026
Return tJocument To: Dubuque Bank & Trust Company, 1398 Central Avenue, Dubuque, lA 52001
A~wA~ ANT ~F REAL ESTATE ~.~ASE ANA ACREEI4~~N1~
This ASSIGNMENT is made this ~+~ day of , 2008, by and
among HODGE TRANSIT WAREHOUSE CQ., an Iowa Corporation, hereinafter
referred to as "BORROWER" and DUBUQUE BANK & TRUST COMPANY, a national
banking association, hereinafter referred to as "ASSIGNEE" and THE CITY OF
DUBUQUE, an laws Municipal Corporation, hereinafter referred to as "LESSOR".
RECITALS:
A. On this 28`h day of April 1969, Borrower, as .Lessee, entered rota a Lease
Agreement with Lessor for the lease of the following described real estate:
Lot 2 of Lot ~ 0, of Block 4, in Riverfront Sub. No. 2, together with an
easement in, over and across Lot 1 of Lot 10 of Block ~ in Riverfront Sub.
No. 2,
which real estate tonsis#s of 8.389 acres and four warehouse buildings and is locally
known as 1111 Purina Drive, Dubuque, (owe.
B. The Lease Agreement referred to in Recital A above was not filed with the
Dubuque County Retarder.
C. Borravuer is indebted to Assignee under the terms and canditians and
evidenced by two Promissory Notes #05793036 and #1:648793036 bath dated June ~,
2008.
Page 1 of 7
D. The loaning of said money as evidence by two Promissory Notes described in
Paragraph C above by Assignee to Borrower is for the bane#it of both Borrower and
Lessor in that the loan funds are being used far the purpose of constructing
improvements to the leased premises and are being used for the benefit of the
business to be conducted upon the leased premises.
E. Pursuant to the terms of said Security Agreement dated .June 4, 2008,
Borrower has agreed to assign its rights, as Lessee, to Dubuque Bank & Trust
Company as security far the foregoing indebtedness owing by Borrower to said Bank.
NOUV, THEREFORE, far valuable consideration, the parties agree as follows:.
1. ASS(CNMENT. Borrower does hereby grant, transfer and assign to Assignee
all of Borrower's right, title and interest in and to that certain Lease Agreement between
The City of Dubuque, as Lessor, and Borrower, as Lessee, dated the 28`~ day of April,
1969, and pertaining to the lease premises consisting of approximately 8.5 acres and
four warehouse buildings located at 1111.Purina Drive in Dubuque, Iowa, The lease
premises are located an the following described real estate:
Lot 2 ofi Lot 10, of Block 4, in Riverfront Sub. No., together with an
easement in, over and across Lot 1 of Lot 10 of Block 4 in Riverfront Sub.
Na. 2.
This Assignment includes and covers ell rights, including possessory rights, to
which Borrower is entitled as Lessee under the #erms of said Lease Agreement,
including any amendment or extension of said Lease Agreement.
2. SECURITY INTEREST. This Assignment is for the purpose of securing
payment on all amounts. due by Borrower to Assignee under the terms and conditions
ofi two Promissory Nates #05793035 and #845793036 bath dated June 4, 2008
described in Paragraph C above and under the terms of the aforesaid Loan Agreement,
including any refinancing, renewal or extension of said indebtedness or future Ioans, if
any, made by Assignee to and on behalf of Borrower.
3. COVENANTS OF BORROWER AND LESSOR. To protect the security of
this Assignment, Borrower end Lessor covenant and agree as folfows with respect to
the [.ease Agreement and the rights of Assignee:
{a) Neither Borraw nor Lessor is now in default in the performance of the
Lease.
(b} Borrower and Lessor will not, alone or by agreement between them,
modify or terminate the Lease Agreement except as provided in
Paragraph 4.
Page 2 of 7
(c) Borrower and Lessor covenant and agree to faithfully perform and
discharge each and every obligation, covenant and agreement required of
them, respectively, under the terms of the Lease Agreement, including
any amendment or extension of said Lease Agreement.
(d) Borrower will enforce and secure the performance of each and every
obligation of Lessor under the Lease Agreement; Borrower will not waive,
excuse, condone or in any other manner release or discharge Lessor of
and from any obligations, covenants, conditions and agreement by Lessor
to be performed.
(e) Borrower will not execute any other assignment of the Lease Agreement
or of Borrower's right, title or interest in and to the leased premises and
will not perform any act ar execute any instrument which might adversely
affect the rights of Assignee hereunder..
(f1 Borrawer shall give prompt notice to Assignee of any notice received from
Lessor of Borrower's default under the Lease Agreement; together with an
accurate and complete copy of any such notice.
4. TENANT'S DEFAULT UNDER LEASE. ]n the event of default by Borrower
under the terms of the Lease Agreement, the Lessor shall have the right to terminate
said Lease in accordance with its #erms; provided that Lessor shah first give Assignee
60 days written notice afi such default and the right, at Assignee's option, to cure such
default during said ~0-day period; and during said 60~day cure period, Lessor will take
not action, without Assignee's consent, to enforce Lessor`s claim arising from such
default.
Assignee may, at its option, elect to cure any such default of Borrawer under the
Lease and simultaneously enter upon, take possession of, manage and operate the
leased premises, or any part thereof, and to do any aet which Assignee may deem
proper and necessary in order to protect the security granted Assignee ur7der this
Assignment and security documents dated June 4, 2008. The entering upon and taking
possession of the leased premises by Assignee pursuant to the terms of this paragraph
and the exercise of any other remedy by Assignee shall not, in and of itself, cure or
waive any default of Borrawer which may occur under the .Loan Agreement.
Notwithstanding the foregoing, it is expressly agreed by all parties that by virtue
of this Agreement Assignee shall not be obligated to perform or discharge, oar does
Assignee hereby undertake to perform or discharge, any obligation, duty or liability of
Borrower under the Lease Agreement. However, Assignee shall be obligated to pay
rent and otherwise comply with the terms of the Lease Agreement during any period in
which it is in possession ofi the leased premises under this Paragraph 4,
Page 3 of 7
5. DEFAULT 01= BORROWER UNDER LOAN AG[~Ei=MENT, lJpon the
occurrence of an event of default by Borrower under the Loan Agreement, Promissory
Note or related security documents with Assignee, including any default in Borrower's
performance under the Promissory Note or security documents, Assignee may exercise
all rights of a secured party under the terms of the Loam Agreement, this Assignment,
the Promissory Note, any security documents, ar iowa law, including the right to enter
upon and take possession of the feared premises. Furthermore, the rights granted to
Assignee by this Assignment may be foreclosed in the same manner as provided for
the real estate mortgages under the laws of the State of Iowa. Such rights of Assignee
shall include, the right, without notice and without interference by or from Lessor, to:
(a) enter the leased premises and remove therefrom all property of Eorrower
in which Assignee holds a security interest, including any fixtures vvhich
are constructed and installed by Borrower upon the Lased premises and
also including any equipment, machinery, inventory and fumiture in which
Assignee holds a security interest;
{b) sell on the leased premises all or a portion of the property referred to in
subparagraph (a) above;
(c) enter upon, take possession of, manage and operate the leased
premises;
(d) transfer and assign said Lease .and Borrower's rights therein to a party or
parties satisfactory to Lessor and upon assignment, the obligations. under
said Lease shall be binding on the transferee.
In the event Assignee shall only exercise the options provided in subparagraphs
{a) and (b} above, it shall have no obligation other than the payment of rent accruing
during the period of its possession of the leased premises, except that Assignee shall
be responsible for repairing any damage to the leased. premises caused by removal of
fixtures. In the event Assignee shall exercise the option provided for in subparagraph
(e} above, Assignee will cure all defaults under the Lease and will assume and be
responsible for aU obligations of Borrower under the Lease but only during the period of
Assignee's possession. In the event Assignee exercise its option under subparagraph
(d) above, Assignee will cure all defaults under the Lease and its sole other obligation
shall be to pay al[ rent which accrues prior to the transfer and assignment of said
Lease.
6. LESSOR`S CONSENT AN®SUBORDINATiON. By entering into this
Agreement, Lessor consents to the terms of the Assignment of Borrower's leasehold
rights to Assignee and to the ether terms of this Agreement. Lessor does further
subordinate any lien or rights (whether arising under the terms of the Lease Agreement,
by statute or otherwise) which it now holds or may hereafter have on the tangible
personal property of Borrower (including fixtures, equipment, machinery, inventory and
furniture) to the security interest and rights of Assignee in said property of Borrower. By
Page 4 of 7
this provision it is intended that Assignee's security interest in Borrower's tangible
personal property (including fixtures, equipment, machinery, inventory and fiurniture)
which is presently located upan ar may in the future be located upon the leased
premises, together with rights of Assignee hereunder, shall be prior and superior tb any
lien or other rights of Lessor in the same property. Nothing in this paragraph should be
deemed to affect any other rights of Lessor under the lease agreement referred to in
Paragraph 1 above.
7. RELEASE OF ASSIGNMENT. Upon payment in full of all indebtedness
owing by Borrower to Assignee, this Assignment shall become void and ofi no further
effect and shall be released by Assignee..
8. INDEMN11=lCATION BY ASSIGNOR. Borrower hereby agrees to indernnifiy
Assignee against and bald it harmless from any and all liability, lass ar damage which
Assignee may incur under the Lease Agreement, ar under ar lay reason of this
Assignment, and of and Pram any and all claims and demands whatsoever which may
be asserted against Assignee by reason of any alleged obligation or undertaking an its
part to perform or discharge any of the terms, covenants ar agreements contained in
the Lease; should Assignee incur any such liabili#y, loss or damage under the Lease, or
under ar by reason of this Assignment, ar in the defense against any such claims ar
demand, the amount thereof, including casts, expenses and reasonable attorney's fee
shall be secured hereby and Borrower shall reimburse Assignee immediately upon
demand, and upon the failure of Borrower to da sa, Assignee may declare all sums
secured hereby immediately due and payable.
9. SUCCESSORS AND ASSIGNS. This Assignment inures to the benefit of
and shall be binding upan the parties and their respective- heirs, successors and
assigns. The term "Lease Agreement" or "Lease" means not only the Lease Agreement
hereby assigned but also any amendment, modification, renewal or extension of said
Lease Agreement, The term "`Security Agreement" means not only the Securi#y
Agreement, bu# also any amendment ar modification to said Security Agreement.
Dated this '~` day of J~H~ , 2U08.
HODGE TRANSIT WAREE-lOUSE CC7.,
Borrower;
By. 'CG
Page 5 of 7
dUBUC~UE BANK & TRUST COMPANY,
Assignee;
By. ! • , MVP
~y: ~ q r Sv`~
CITY OF dUBU ~,
Lessor;
B
y•
R ~' D. UOL, Mayor
1:3y;
JEANNE SCHN~l1~~R, City Clerk
STATE Oi= IOWA }
ss:
COUNTY OF DUBUQUE }
On this G~~ day of ~~- , 20Q$, before me, the
undersigned, a Nptary Public in and for said County and State, personally appeared
i ;,.r.~~-1^~/-{ooh ,~. to me personally known, who being by me duly sworn,
did say that they are the ~~s;ata,,,,.~ and r~• !a
respectively, of said corporation; that (no seal has been procured by the said}(the seal
affixed thereto is the seal of said) corporation; that said instrument was signed and
sealed on behalf of said corporation by authority of -its Board of Directors; and that the
said ~~~,s; o~-.~.--I- and ~ / ~ as such officers,
acknowledged the execution of said instrument to be the voluntary act and. deed of said
corporation, by it and by them voluntary executed.
"°~'~`~ MARIE ?. KOERPERICH
Z ~ C0117mIS51Gn ~umbeP 718885 Not ry Public in and or said State ~,~~
• ,.~ ~ ~y0ctober~2 Z008res
Page 6 of 7
STATE OF IOWA }
ss;
COUNTY Oi= DUBUQUE )
On this ~+`~` day of ~~ , 20U8, before me, the
undersigned, a Notary Public in and f r said County and State, personally appeared
I,ui~l:~.- a-l• ~-t•,1~,,.-~- Da+r~ C.~e personally known, who being by me duly s orn,
did say that they are the ~.,-.-w V c.o. r~...s:~.~and ~~w V-~ ~+~-c~
respectively, of said corporation; that (no seal has been procured by fihe said)(the seal
affixed thereto is the seal of said) corporation; that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors; and that the
said ~aLt o-~ and ~•t l~ as such officers,
acknowledged the execution of said instrument to be the voluntary set and deed of said
corporation, by it and by them voluntary executed.
,~~~^~s MARIE ?. KOERPERICH
z°~ F~ Commtssit;n ~umbe~ 71884
Niy Comrrission Expires
,e~ ~ October 2, 2008
STATE OF IOWA )
} ss:
COUNTY OF DUBUQUE }
Not Public in and for aid hate
On this L"~ day of ~~~~L~--~ , 20Q~f .before me, the undersigned,
a Notary Public in and for said State of Iowa, personally appeared ROY D. BUOL and
JEANNE SCHN1=lDER, to me personally known, who being k?y me dufy sworn, did say
that the said ROY D. BUOL is MAYOR and the said JEANNE SCHNEI~ER is CLERK
of the City of Dubuque, laws, that the seal affixed to the above instrument is the
corporate seal of the City of Dubuque, Iowa; and that said instrument was signed and
sealed an behalf of the City of Dubuque, Iowa, by authority of City Council of said City;
and the said ROY D. BUOL and JEANNE SCHNEIDER acknowledged the execution of
said instrument to be the voluntary act and deed of the said City of Dubuque, Iowa, by it
voluntary executed.
Wetness our hands and notarial seal on the above stated date.
p,lA~ 8 KEVIN S. FI<~NSTAHL
o`* ~ COMMISSION N0.7452~15
a .ter ~ MY COMM15SlON EXPIRES Nato ublic IrF and ar said State
,oW~ 2~12iro
5~1wp4Gyndilpuququo E3ar~€c $ TrusllHddgo "transit N/arohouso GolAssignm~?nt Af lgaso and Agt54rr1~nt.Wpd
Page 7 of 7
RESOLUTION N0. 294 -93
RESOLUTION AUTHORIZING THE ASSIGNMENT OF CERTAIN LEASES BETWEEN THE
CITY OF DUBUQUE, IOWA, AND HOOGE TRANSIT WAREHOUSE COMPANY TO FIRST
NATIONAL BANK OF DUBUQUE FOR SECURITY
Whereas, the City of Dubuque, Iowa (City) has leased to Hodge Transit
Warehouse Company, an Iowa Corporation (Lessee) certain real property located at
1111 Purina Drive, Dubuque, Iowa pursuant to a leased dated April 28, 1969.
Whereas, the First National Bank of Dubuque has agreed to lend Lessee
certain sums of money for the purpose of constructing improvements to the leased
premises for the benefit of the business to be conducted upon the leased
premises; and
Whereas, the lease agreements between the City of Dubuque and Nodge Transit
Warehouse Company allows an assignment of the lease by the Lessee at its option--
upon prior written approval of the City; and
Whereas, the City Council of the City of Dubuque, Iowa as determined that
it is in the best interest of the City to consent to such assignment.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE,
IOWA:
Section 1. That the assignment of Real Estate Lease and Agreement attached
hereto from the Hodge Transit Warehouse Company to the First National Bank is
hereby approved.
Section 2. That the Mayor be authorized and directed to sign said
Assignment of Real Estate Lease and Agreement on behalf of the City of Dubuque,
Iowa.
Passed, approved and adopted this nth day of SeFtember
1993.
---~
James E ady
L~ Mayor
Attest:
~l~,,
Mary A. •vis
City C1 k
PW-HODGE.RES