Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Hodge Companies Assignment of Real Estate Lease and Agreement
Copyrighted April 3, 2017 City of Dubuque Consent Items # 15. ITEM TITLE: Hodge Companies Assignment of Real Estate Lease and Agreement SUMMARY: City Manager recommending approval of the Assignment of Real Estate Lease and Agreement between Hodge Company and Dubuque Bank and Trust Company. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve ATTACHMENTS: Description Type Hodge Company Assignment of Real Estate Lease and City Manager Memo Agreement-MVM Memo Staff Memo Staff Memo Letter from DB&T Supporting Documentation Assignment of Real Estate Lease and Agreement Supporting Documentation THE CITY OF Dubuque DUB E i" Masterpiece on the Mississippi 2007.2012.2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Assignment of Real Estate Lease and Agreement for Hodge Company DATE: March 21, 2017 On June 20, 2016, Hodge Company signed a Lease Agreement with the City of Dubuque. Hodge Company is now requesting that the City of Dubuque consent to the assignment of the Lease from Hodge Company to Dubuque Bank and Trust Company per the terms of their Business Loan Agreement. Project Manager Steve Brown recommends City Council approval of the Assignment of Real Estate Lease and Agreement between Hodge Company and Dubuque Bank and Trust Company. I concur with the recommendation and respectfully request Mayor and City Council approval. v Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Barry Lindahl, Senior Counsel Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Steve Sampson Brown, Project Manager 'I'IiE CDubuque DU'--aEAl-bWcaCftvI I. M17Sterpiec:e on the Mississippn 2007•2012-2013 TO: Michael C. Van Milligen, City Manager 0 FROM: Steve Sampson Brown, Project Manager SUBJECT: Assignment of Real Estate Lease and Agreement for odge Company DATE: March 20, 2017 INTRODUCTION The purpose of this memo is to request City Council approval of the attached Assignment of Real Estate Lease and Agreement between Hodge Company and Dubuque Bank and Trust Company. DISCUSSION On June 20, 2016 Hodge Company signed a lease agreement with the City of Dubuque for the described real estate: Lot 2 of Lot 10, and part of Lot 11 of Block 4, in Riverfront Sub. No. 2, in the City of Dubuque, Iowa. Hodge Company is now requesting that the City of Dubuque consent to the Assignment of the Lease from Hodge Company to Dubuque Bank and Trust Company per the terms of their Business Loan Agreement. RECOMMENDATION I recommend that the City Council approve the Assignment of Real Estate Lease and Agreement between the City of Dubuque, Hodge Company and Dubuque Bank and Trust Company. ACTION TO BE TAKEN I recommend that the City Council approve the Assignment of Real Estate Lease and Agreement between Hodge Company and Dubuque Bank and Trust Company. cc: Barry Lindahl,City Attorney Maurice Jones,Economic Development Director Gus Psihoyos,City Engineer Jill Connors,Project Coordinator Encs. ' DUBuQUE BANK AND TRUST February 16, 2017 Attn:Jill Connors City of Dubuque 50 W. 13"St. Dubuque, IA 52001 Dear Jill, As per our conversation on 2/14/17: the enclosed is an Assignment of Real Estate Land Lease and Agreement taking assignment of the 6/20/16 land lease between the City of Dubuque & Hodge Company. Please have the Assignment signed by the mayor&city clerk and then notarized. By signing the City acknowledges Dubuque Bank&Trust Company's assignment of the aforementioned lease. Please reach out to me with any questions. A Michael J. Molony Dubuque Bank&Trust Company 1398 Central Avenue,P.O.Box 7781 Dubuque,Iowa 5200"7781P 563.589.20001 F 553.589.20111800.397JO001 ww-dubuquebank.com Fa(,QEauu unusu1owmw Prepared by: Return Document to: 11 11 11 11 11 11 11 11 is Doc ID: 008631510006 Type: GEN Kind: LEASE Recorded: 05/03/2017 at 02:48:37 PM Fee Amt: $42.00 Page 1 of 6 Dubuque County Iowa John Murphy Recorder F11e2017_00005163 Greg A. Rehmke, Heartland Financial USA, Inc., 1398 Central Avenue, Dubuque, IA 52001 (563) 589-1932 Dubuque Bank and Trust Company, 1398 Central Avenue, Dubuque, IA 52001 ASSIGNMENT OF REAL ESTATE LEASE AND AGREEMENT This ASSIGNMENT is made this 9th day of February, 2017, by and among Hodge Company, an Iowa corporation, hereinafter referred to as "BORROWER", Dubuque Bank and Trust Company, an Iowa bank, hereinafter referred to as "ASSIGNEE", and the City of Dubuque, an Iowa municipal corporation, hereinafter referred to as "LESSOR". RECITALS: A. On the 20th day of June, 2016, Borrower, as lessee, entered into a lease agreement ("Lease Agreement") with Lessor for the lease of the following described real estate: Lot 2 of Lot 10, and part of Lot 11 of Block 4, in Riverfront Sub. No. 2, in the City of Dubuque, Iowa, which real estate consists of approximately 8.47 acres, 0.42 acres for an easement, and four warehouse buildings, locally known as 1111 Purina Drive, Dubuque, Iowa (collectively referred to herein as the "Leased Premises"). B. The Lease Agreement was not filed with the Dubuque County Recorder. C. Borrower is currently indebted to Assignee under the terms and conditions set forth four promissory notes. Promissory notes #****3035 dated June 4, 2008, #*****3036 dated October 27, 2009, #*****7473 dated February 9, 2017, and #*****7477 dated February 9, 2017. The promissory notes referred to in this Recital C are referred to herein collectively as the "Promissory Notes". The loans from Assignee to Borrower are further evidenced and governed by the terms and conditions of a business loan agreement dated February 9, 2017 (the "Business Loan Agreement"). 1 09W IV X0,10 C(/ 'reel D. The loaning of said money as evidenced by the Promissory Notes by Assignee to Borrower is for the benefit of both Borrower and Lessor in that the loan funds are being used for 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. As security for the forgoing and future indebtedness owing by Borrower to Assignee, Borrower agreed to assign its rights, as lessee, in active lease agreements pursuant to the terms of a security agreement dated June 6, 2008 (the "Security Agreement"). The Promissory Notes, Business Loan Agreement, and Security Agreement, and accompanying documents are herein referred to collectively as the "Loan Documents". NOW, THEREFORE, for valuable consideration, the parties agree as follows: 1. ASSIGNMENT. Borrower does hereby grant, transfer, and assign to Assignee all of Borrower's right, title, and interest in and to the Lease Agreement. This Assignment includes and covers all rights, including possessory rights, to which Borrower is entitled as Lessee under the terms of the Lease Agreement, including any amendment or extension of the Lease Agreement. 2. SECURITY INTEREST. This Assignment is for the purpose of securing payment on all amounts due by Borrower to Assignee under the Loan Documents, including any refinancing, renewal or extensions of said indebtedness or future loans, 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 and Lessor covenant and agree as follows with respect to the Lease Agreement and rights of Assignee: (a) Neither Borrower nor Lessor is now in default in the performance of the Lease Agreement. (b) Borrower and Lessor will not, alone or by agreement between them, modify or terminate the Lease Agreement except as provided in Paragraph 4 of this Assignment. (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 the 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 or execute any instrument which might adversely affect the rights of Assignee hereunder. 2 (f) Borrower 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. In the event of default by Borrower under the terms of the Lease Agreement, the Lessor shall have the right to terminate the Lease Agreement in accordance with its terms; provided that Lessor shall first give Assignee 60 days written notice of such default and the right, at Assignee's option, to cure such default during said 60 day period; and during said 60 day cure period, Lessor will take no 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 Borrower under the Lease Agreement and simultaneously enter upon, take possession of, manage and operate the Leased Premises, or any part thereof, and to do any act which Assignee may deem proper and necessary in order to protect the security granted Assignee under this Assignment and the Loan Documents. 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 Borrower which may occur under the Loan Agreement. Notwithstanding the foregoing, it is expressly agreed by all the parties that by virtue of this Agreement Assignee shall not be obligated to perform or discharge, nor does Assignee hereby undertake to perform or discharge, any obligation, duty, or liability of Borrower under the Lease Agreement. 5. DEFAULT OF BORROWER UNDER LOAN AGREEMENT. Upon the occurrence of an event of default by Borrower under any of the Loan Documents, Assignee may exercise all rights of a secured party under the terms of the Loan Documents, any security documents, or Iowa law, including the right to enter upon and take possession of the Leased 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 Borrower in which Assignee hold a security interest, including any fixtures which are constructed and installed by Borrower upon the Leased Premises and also including any equipment, machinery, inventory, and furniture 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; 3 (d) transfer and assign the Lease Agreement and Borrower's rights therein to a party or parties satisfactory to Lessor and upon assignment, the obligations under the Lease Agreement shall be binding upon 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 (c) above, Assignee will cure all defaults under the Lease Agreement and will assume and be responsible for all obligations of Borrower under the Lease Agreement but only during the period of assignee's possession. In the event Assignee exercises its option under subparagraph (d) above, Assignee will cure all defaults under the Lease Agreement and its sole other obligation shall be to pay all rent which accrues prior to the transfer and assignment of the Lease Agreement. 6. LESSOR'S CONSENT AND SUBORDINATION. By entering into this Assignment, Lessor consents to the terms of the Assignment of Borrower's leasehold rights to Assignee and to the other terms of this Assignment. Lessor does further subordinate any liens 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 this provision it is intended that Assignee's security interest in Borrower's tangible personal property (including fixtures, equipment, machinery, inventory, and furniture) which is presently located upon or may in the future be located upon the Leased Premises, together with rights of Assignee hereunder, shall be prior and superior to 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. 7. RELEASE OF ASSIGNMENT. Upon payment in full of all indebtedness owing by Borrower to Assignee, this Assignment shall become void and of no further effect and shall be released by Assignee. 8. INDEMNIFICATION BY ASSIGNOR. Borrower hereby agrees to indemnify Assignee against and hold it harmless from any and all liability, loss, or damage which Assignee may incur under the Lease Agreement, or under or by reason of this Assignment, and of and from any and all claims and demands whatsoever which may be asserted against Assignee by reason of any alleged obligation or undertaking on its part to perform or discharge any of the terms, covenants, or agreements contained in the lease; should Assignee incur any such liability, loss, or damage under the Lease, or under or by reason of this Assignment, or in the defense against any such claims or demand, the amount thereof, including costs, expenses, and reasonable attorney's fees shall be secured hereby and Borrower shall reimburse Assignee immediately upon demand, and upon the failure of Borrower to do so, 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 upon the parties and their respective heirs, successors, and assigns. The term "Lease Agreement" 4 means not only the Lease Agreement hereby assigned but also any amendment, modification, renewal, or extension of said Lease Agreement. 10. WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. BORROWER Hodge Company By: 41764 644 4( Tim Hod(/ its ASSIGNEE Dubuque Bank and Trust Company By: ,_ /J rte Dougl "s J. Horstmann, its President/CEO LESSOR City of Dub ue By: 1 G, -/i7 [1. J-� Roy D. I, its Mayor By: Kevin Firnstahl, its City Clerk STATE OF IOWA ) ss: COUNTY OF DUBUQUE On this" day of February, 2017, before me, the undersigned, a Notary Public in and for said County and State, personally appeared Tim Hodge to me personally known, who being by me duly sworn, did say that he is the?r e s 6.vr-t %5c,`_ of Hodge Company; that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that Tim Hodge, as such officer, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation by it and by them voluntary executed. KAREN REYNOLDS Commission Number 737564 • J y Commission xpires 119,,,,,10 ste• •' 1 Notary Public in and for Said State 5 STATE OF IOWA ss: COUNTY OF DUBUQUE On this'1day of February, 2017, before me, the undersigned, a Notary Public in and for said County and State, personally appeared Douglas J. Horstmann to me personally known, who being by me duly sworn, did say that he is the President and CEO of Dubuque Bank and Trust Company; that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that Douglas J. Horstmann, as such officer, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation by it and by them voluntary executed. o PFM( KAREN REYNOLDS > Commission Number 737564 Z .. 31, : Kevin Firnstahl From: Sent: To: Cc: Subject: We can reimburse. Mkhael J. hloIiny Portr k+ Marc—pr - Btainsssawkreg (563) 587-4023 (563) 589-2184 MMolpny@dubuquebank.c& n I3 .l Arse rfraWgue. IA 521'01 Molony, Michael J. <MMolony@dubuquebank.com> Monday, May 01, 2017 4:57 PM Anita Gonyier Kevin Firnstahl RE: Hodge Assignment of Real Estate Lease and Agreement From: Anita Gonyier[mailto:Agonyier©cityofdubuque.org] Sent: Monday, May 01, 2017 11:12 AM To: Molony, Michael J. Cc: Kevin Firnstahl Subject: [EXTERNAL] FW: Hodge Assignment of Real Estate Lease and Agreement Good Morning Mike Please see email from Kevin Firnstahl. Thank you, Anita Odobasic Gonyier Confidential Account Clerk City of Dubuque 50 West 13th St Dubuque, IA 52001 Acionyier(c�cityofdubuque.orq From: Kevin Firnstahl Sent: Monday, May 1, 2017 11:08 AM To: Anita Gonyier <ARonvier@citvofdubuoue.org> Subject: RE: Hodge Assignment of Real Estate Lease and Agreement I can take it to the recorder's office this week with the documents from tonight's meeting. I can find out how much it'll cost to record, and they can reimburse the City. It's going to cost more because it's 2 -sided, and there's an upcharge for that. Does that work? Thank you, Kevin 1 Kevin Firnstahl From:Anita Gonyier Sent:Friday, April 21, 2017 12:24 PM To:Kevin Firnstahl Subject:FW: Hodge Assignment of Real Estate Lease and Agreement Kevin Here are the emails between Mike from DB&T and I about the Hodge Assignment. Thank you, Anita From: Anita Gonyier Sent: Friday, April 21, 2017 12:23 PM To: 'Molony, Michael J.' <MMolony@dubuquebank.com> Subject: RE: Hodge Assignment of Real Estate Lease and Agreement Hi Mike We have a copy ready for you to pick up. Thank you, Anita Odobasic Gonyier Confidential Account Clerk City of Dubuque 50 West 13th St Dubuque, IA 52001 Agonyier@cityofdubuque.org From: Molony, Michael J. \[mailto:MMolony@dubuquebank.com\] Sent: Friday, April 21, 2017 12:10 PM To: Anita Gonyier <Agonyier@cityofdubuque.org> Subject: RE: Hodge Assignment of Real Estate Lease and Agreement Make us a copy and I will pick that up. 1 From: Anita Gonyier \[mailto:Agonyier@cityofdubuque.org\] Sent: Friday, April 21, 2017 12:09 PM To: Molony, Michael J. Subject: RE: Hodge Assignment of Real Estate Lease and Agreement Hi Mike I just talked to my boss, we only received one Original copy from you, so we will have to have you create another original and distribute for signatures since the City Clerk has to keep an original on file, or we can make you a copy of the original. Please let me know. Thank you, Anita Odobasic Gonyier Confidential Account Clerk City of Dubuque 50 West 13th St Dubuque, IA 52001 Agonyier@cityofdubuque.org From: Molony, Michael J. \[mailto:MMolony@dubuquebank.com\] Sent: Friday, April 21, 2017 9:46 AM To: Anita Gonyier <Agonyier@cityofdubuque.org> Subject: RE: Hodge Assignment of Real Estate Lease and Agreement Anita, Thank you! Any way we can get the original or at least the hard copy of the origonal? I can run over to city hall or you can just drop it off to my attention at our front desk? Mike From: Anita Gonyier \[mailto:Agonyier@cityofdubuque.org\] Sent: Friday, April 21, 2017 9:44 AM To: Molony, Michael J. Subject: Hodge Assignment of Real Estate Lease and Agreement Good Morning Mike I received your voicemail and attached is the signed assignment. Please let me know if you need anything else. 2 Thank you, have a great day. Anita Odobasic Gonyier Confidential Account Clerk City of Dubuque 50 West 13th St Dubuque, IA 52001 Agonyier@cityofdubuque.org This message has been scanned for malware by Websense. www.websense.com Click here to report this email as spam. 3