Eagle Window & Door Loan AgreeMEMORANDUM
September 10, 2002
TO:The Honorable Mayor and City Council Members
FROM:Michael C. Van Milligen, City Manager
SUBJECT: Public Infrastructure Assistance Program Loan for
Eagle Window & Door, Inc.
On February 15, 1999, the City Council signed a Development Agreement setting out
the terms and conditions of the sale and development of land in the Kerper Boulevard
Industrial Park for a new building for Eagle Window & Door. The Agreement was
subsequently amended as the developer for the project changed and other terms and
conditions were negotiated. The amended Agreement authorized several public loans
to the company. Due, however, to the financial problems of Eagle Window & Door's
parent company, American Architectural Products, direct public financial assistance to
the company was never finalized, and the City had no obligation to close on the loans.
The project was successfully completed without the proposed financing package. The
City did provide a land grant and tax increment financing assistance to the developer to
help finance building construction.
As part of the development of the Kerper Boulevard Industrial Park, the City received a
Public Infrastructure Assistance Program (PIAP) forgivable loan from the State of Iowa
of $1,184,000 to assist in the environmental testing/remediation and grading/filling of
the site. As part of the City's agreement with the State, a forgivable loan of not less
than $684,000 of direct monetary assistance had to be provided to Eagle Window &
Door for its expansion.
Eagle Window & Door's obligation, as required by the City's PIAP agreement with the
State and included in the attached loan agreement, is to retain 475 employees and
create 168 new positions within five years. The full amount of the loan will be forgiven if
the employer meets the job retention/creation goals.
The City has worked with Eagle Window & Door to finalize the loan agreement and
security requirements for this loan so that the funds can be disbursed to the company.
The company has continued to anticipate this funding source even though the other
public financial assistance proposed in the amended Development Agreement is no
longer available.
Economic Development Director Bill Baum recommends City Council approval of a
PIAP loan agreement with Eagle Window & Door, Inc. The forgivable loan to Eagle
Window & Door, Inc. finalizes a project that has been underway for over four years and
completes the City's obligations under its agreement with the State of Iowa for the PIAP
funds.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
___________________
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
William Baum, Economic Development Director
CITY OF DUBUQUE, IOWA
MEMORANDUM
September 9, 2002
TO:Michael Van Milligen, City Manager
FROM:William Baum, Economic Development Director
SUBJECT:Public Infrastructure Assistance Program Loan for Eagle Window &
Door, Inc.
INTRODUCTION
This memorandum presents for City Council review and approval a resolution authorizing
the execution of a Public Infrastructure Assistance Program (PIAP) loan agreement with
Eagle Window & Door, Inc.
DISCUSSION
On February 15, 1999, the City Council signed a Development Agreement setting out the
terms and conditions of the sale and development of land in the Kerper Boulevard Industrial
Park for a new building for Eagle Window & Door. The Agreement was subsequently
amended as the developer for the project changed and other terms and conditions were
negotiated. The amended Agreement authorized several public loans to the company.
Due, however, to the financial problems of Eagle Window & Door's parent company,
American Architectural Products, direct public financial assistance to the company was
never finalized, and the City had no obligation to close on the loans. The project was
successfully completed without the proposed financing package. The City did provide a land
grant and tax increment financing assistance to the developer to help finance building
construction.
As part of the development of the Kerper Boulevard Industrial Park, the City received a
PIAP forgivable loan from the State of Iowa of $1,184,000 to assist in the environmental
testing/remediation and grading/filling of the site. As part of the City's agreement with the
State, a forgivable loan of not less than $684,000 of direct monetary assistance had to be
provided to Eagle Window & Door for its expansion.
Eagle Window & Door's obligation, as required by the City's PIAP agreement with the State
and included in the attached loan agreement, is to retain 475 employees and create 168
new positions within five years. The full amount of the loan will be forgiven if the employer
meets the job retention/creation goals.
The City has worked with Eagle Window & Door to finalize the loan agreement and security
requirements for this loan so that the funds can be disbursed to the company. The company
has continued to anticipate this funding source even though the other public financial
assistance proposed in the amended Development Agreement is no longer available.
The attached resolution authorizes the City Manager to prepare all necessary loan
documents and disburse loan funds in accordance with the terms and conditions of the
executed loan agreement.
RECOMMENDATION
I recommend that the City Council adopt the attached resolution approving the PIAP loan
document. The forgivable loan to Eagle Window & Door, Inc. finalizes a project that has
been underway for over 4 years and completes the City's obligations under its agreement
with the State of Iowa for the PIAP funds.
ACTION STEP
The Action Step for the City Council is to adopt the attached resolution.
Prepared by:Pamela Myhre
Economic Development Planner
F:\USERS~Omyh re\WPDOCS~LOANDOC\EAGLEW~N\piaploan.mem.doc
RESOLUTION NO. 480-02
A RESOLUTION AUTHORIZING THE EXECUTION OF A PHYSICAL INFRASTRUCTURE
ASSISTANCE PROGRAM (PIAP) LOAN AGREEMENT FOR SIX HUNDRED NINETY-TWO
THOUSAND DOLLARS ($692,000) WITH EAGLE WINDOW & DOOR, INC.
Whereas, the Physical Infrastructure Assistance Program (PIAP) program Was
created by the Iowa Department of Economic Development to assist in the economic
development efforts of local jurisdictions; and
Whereas, on April 22, 1998, the City of Dubuque, Iowa was awarded a one
million one hundred eighty-four thousand dollar ($1,184,000) forgivable loan from the
PIAP program by the Iowa Department of Economic Development to assist in the
development of the Kerper Boulevard Industrial Park; and
Whereas, the City of Dubuque, Iowa desires to assist Eagle Window & Door, Inc.
in its efforts to expand its operations in Dubuque and create new, permanent
employment opportunities for local citizens; and
Whereas, a PIAP Loan Agreement for $692,000, hereto attached and by this
reference made a part hereof, is to be executed between the City of Dubuque, Iowa
and Eagle Window & Door, Inc.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the City Manager be and he is hereby authorized and directed
to endorse, on behalf of the City Council of the City of Dubuque, Iowa, the attached
PIAP Loan Agreement.
Section 2. That the City Manager is hereby authorized to prepare all
necessary loan documents and is further authorized to disburse loan funds in
accordance with the terms and conditions of the executed agreement.
Passed, approved and adopted this 16th day of September, 2002.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
F:\USERS\Pmyhre\WPDOCS\LOANDOC\EAGLEWIN~piaploant. res.doc
CITY OF DUBUQUE, IOWA
PUBLIC INFRASTRUCTURE ASSISTANCE PROGRAM
LOAN AGREEMENT
EAGLE WINDOW & DOOR, INC.
(IDED)
This AGREEMENT, dated as of the day of September, 2002, is entered into
by and between the CITY OF DUBUQUE, IOWA, a municipal corporation organized
and existing under the laws of the State of Iowa (hereinafter referred to as the
"City"), and EAGLE WINDOW & DOOR, INC., a Delaware corporation with its
principal place of business in Dubuque, Iowa (hereinafter referred to as the
"Company").
WITNESSETH:
WHEREAS, Company has requested a loan to offset the costs associated
with the expansion and relocation of Company to the Kerper Boulevard Industrial
Park; and
WHEREAS, City has considered said proposal and has determined that it will
create permanent employment opportunities for the community's Iow and moderate
income population; and
WHEREAS, City has received funding from the Iowa Department of
Economic Development's Public Infrastructure Assistance Program to assist the
Company's project.
NOW, THEREFORE, in consideration of the promises and respective
covenants, agreements, and representations hereinafter set forth, the parties agree
as follows:
1. SOURCE OF LOAN FUNDS. City, pursuant to its Contract with the
Iowa Department of Economic Development, has obtained funds sufficient to carry
out its obligations under this Agreement.
2. LOAN TERMS. City agrees to make a forgivable loan to Company in
the amount of Six-Hundred Ninety-Two Thousand Dollars ($692,000.00). Interest
shall accrue at the rate of four and one half percent (4.5%) per annum, computed on
a 365-day basis, beginning on the date of disbursement of funds. No payments of
interest and principal shall be made until December 31, 2003 at which time a
determination will be made by City as to whether Company has fulfilled the Job
Attainment Obligations of Section 9 of this Agreement. If Company has fulfilled those
Job Attainment Obligations, the entire loan will be forgiven. If Company has fulfilled
less than fifty percent (50%) of the Job Attainment Obligation of Section 9 of this
Agreement as of December 31, 2003, full repayment of all principal and accrued
interest will be required. If Company has fulfilled at least fifty percent (50%) of such
Job Attainment Obligation, $4,119.00 will be forgiven for each new FTE job created.
Any unforgiven balance plus interest from December 31, 2003, will be amortized
over three (3) years with three (3) annual payments due on December 31 of 2004,
2005, and 2006. Interest on the unforgiven balance from the date of first
disbursement to December 31, 2003 will be payable immediately. On or before the
date of the first disbursement of loan funds to Company, Company shall execute its
Promissory Note in the form attached hereto as Exhibit A (the "Note") payable to the
order of City in the principal amount of Six-Hundred Ninety-Two Thousand Dollars
($692,000.00). City shall calculate all amounts due hereunder on December 31,
2003 and prepare a repayment schedule to be attached to the Note and thereby
made a part thereof. A copy of the City's calculation and repayment schedule shall
be promptly mailed to Company.
3. DISBURSEMENT AND USE OF LOAN FUNDS. Loan funds shall be
disbursed for the benefit of Company by City for Qualifying Project Expenses up to
Six-Hundred Ninety-Two Thousand Dollars ($692,000.00). Loan proceeds will be
disbursed subject to City receiving a disbursement of funds from the Iowa
Department of Economic Development. Qualifying Project Expenses incurred for
machinery and equipment shall be disbursed directly to Company in reimbursement
of the purchase by Company of machinery and equipment for Company's new
facility in Dubuque upon proof of paid invoice from the machinery/equipment vendor
and shall be disbursed at the rate of ninety percent (90%) of the acquisition cost of
the machinery and equipment purchased. Company shall furnish to City written
request for disbursement of loan funds, including the serial number or equivalent for
any machinery and/or equipment to be so purchased. Pdor to disbursement,
Company shall execute such documents as may be necessary to allow City to
perfect a purchase money first lien security interest in any machinery and/or
equipment purchased.
All requests for reimbursement shall be accompanied by a statement of
Company's Qualifying Project Expenses and appropriate documentation of such
expenses. It is expressly understood that all funds advanced under this Agreement
shall be specifically earmarked and used by Company only for the purpose of paying
the Qualifying Project Expenses listed in the applicable written request and as
defined in Section 26(d). Company shall complete the Project as defined in Section
26(c) in accordance with the terms of this Agreement within fifteen (15) months of
the date of this Agreement. City shall not be obligated to pay any funds not drawn
by Company as of said date and any undrawn funds shall be credited against the
balance due on the Note.
4. SECURITY. This loan shall be secured by a First Priority Purchase
Money Security Interest on one-hundred percent (100%) of the value of any
machinery and equipment purchased with loan proceeds. Company shall provide
City with a legal opinion from Company's outside legal counsel, in form satisfactory
to the City, that City has a first priority lien on and security interest in all of the
machinery and/or equipment so purchased.
5. STATUS OF COMPANY. Company represents that it is a corporation
duly organized and existing under the laws of the State of Delaware; that it is
authorized to borrow under this Agreement, to execute, and deliver the Note and
otherwise perform the obligations of this Agreement; that it has corporate authority
and power to own its property and conduct its business as it is currently carried on;
that the performance of its obligations under this Agreement and the issuance of the
Note under it will not conflict with any provision of law, the Articles of Incorporation
or the ByLaws of Company, or any agreement binding on it; and that, except as
disclosed in writing to City, it is not a party to any pending or threatened litigation or
to any proceeding or action for the assessment or collection of additional taxes, and
that it knows of no known contingent liabilities not provided for or disclosed in the
financial statement provided City.
6. FINANCIAL CONDITION OF COMPANY. Company has delivered to
City a statement of Company's financial condition as of the date of application for
financial assistance which fairly represents the financial condition of Company as of
the date stated, prepared in accordance with generally accepted accounting
principles consistently applied, and that the Company represents that the statements
still correctly reflect the financial condition and status of its operations as of the date
of this Agreement. Company agrees to notify City promptly in writing of any
materially adverse change in Company's financial condition.
7. TITLE OF COMPANY. Except as otherwise specifically disclosed in
writing to City or set forth in Section 4 above, Company represents that it has good
and marketable title, free of mortgage, pledge, lien, security interest, encumbrance,
or charge to all those assets purchased with the loan funds Taxes not due or
payable or otherwise delinquent are excepted, as are assets disposed of in the
ordinary course of business or disclosed in writing to City.
8. CONDITIONS OF BORROWING. On the date on which any sum is to
be borrowed, Company, in addition to the Note, shall deliver to City such other
papers, documents and opinions of counsel as may be required to comply with the
conditions of this Agreement, as counsel for City may reasonably request.
Company shall be required at the closing date and on the date of each
disbursement hereunder to certify or provide, as follows:
(a) A certification of the Company to the effect that the representations
and warranties of Company contained herein are correct in all material respects on
said date;
(b) A certification of the Company to the effect that Company has fully
complied in all material respects with the covenants and agreements contained
herein to the extent required before said date;
(c) A certification of the Company to the effect that no default or
event which might mature into a default has occurred or continues as of that
date;
(d) A certification of the Company to the effect that no litigation or
proceeding is pending against Company which might result in any material change
in the business or adversely and materially affect the properties of Company, taking
into account the entire assets and overall business of Company;
(e) A certification of the Company to the effect that since the date of
execution of this Agreement there has been no material adverse change in the
financial condition of Company from that shown by the financial statements
delivered to City under Section 6;
(f) A certification of the Company to the effect that since the date of
execution of this Agreement no fire or casualty has occurred in any building or to
any inventories or property of Company that might substantially, adversely affect the
conduct of its business; and
(g) An opinion in form satisfactory to the City of Company's outside legal
counsel to the effect that Company is a corporation duly organized, existing and in
good standing under the laws of the State of Delaware; that it has corporate power
to own its properties and conduct the business in which it is then engaged; that
counsel does not have knowledge that Company is in violation of any law, ordinance
or regulation of any governmental authority as to its business, premises or assets;
that Company has full power to execute and deliver this Agreement, to execute and
deliver the Note that evidences the sum borrowed, to borrow moneys under this
Agreement, and to perform its obligations under this Agreement and the Note; end
that such actions have been duly authorized by all necessary corporate actions and
are not in conflict with any agreement binding on Company known to counsel; that
this Agreement and the Note when executed and delivered by Company will be a
valid and binding obligation of Company enforceable in accordance with its terms,
subject in each instance to principles of equity, debtor's rights laws, bankruptcy laws
and rules, and other similar matters that limit or restrict the rights of creditors or
grant debtors additional rights; and that the City has a perfected security interest,
prior to any other security interest granted by Company, in the machinery or
equipment being acquired with the proceeds of the loan.
9. COVENANTS OF COMPANY. Company covenants that until any
sums borrowed under this Agreement are paid in full, it will, unless City agrees in
writing to a modification or otherwise stated herein:
(a) Take all actions necessary and required to create a minimum of one
hundred sixty-eight (168) new permanent Full-Time Job Equivalents with Company
in Dubuque, Iowa on or before December 31, 2003 (the "Job Attainment
Obligation"). Company shall use its best efforts to hire local area residents whenever
practicable and not otherwise in conflict with non-discrimination provisions herein
stated. For purposes of determining the extent of employment opportunities created
under this Agreement, City and Company agree that a total of four-hundred seventy-
five (475) Full-Time Job Equivalents exist with Company in Dubuque, Iowa as of
February 15, 1999. If Company meets this requirement (i.e. 643 FTE) prior to
December 31, 2003, City may acknowledge such compliance and thereafter
Company shall have no further obligation under this subparagraph (a);
(b) Submit to City a copy of the Company's "Quarterly Employer's
Contribution and Payroll Report" and quarterly certify to City the number of FTE
Employees employed by Company on the date of each such certification;
(c) Maintain insurance to the extent and against such hazards and
liabilities as are in keeping with the current insurance program of Company;
(d) Pay when due all rent, taxes, assessments, and other liabilities, except
those contested in good faith where notice of such contest has been given to City;
(e) Except as set forth in Section 4 above or otherwise disclosed in writing
to City, and except as to Harris Bank, not create or permit to exist any mortgage,
pledge, security interest, lien or other encumbrance on the security for this Loan
Agreement provided in Section 4 above and the Note provided pursuant to this Loan
Agreement without prior written consent of City;
(f) Not relocate Company's project operations outside the city limits of the
City of Dubuque;
(g) Give prompt notice in writing to City of any adverse development,
financial or otherwise, which would materially affect its business, properties or
affairs, or the ability of Company to perform its obligations under this Agreement or
the Promissory Note executed pursuant to the terms of this Agreement;
(h) Use loan funds only for purposes authorized herein;
(i) Take no action which would knowingly cause City to be found in
default under its contract with the Iowa Department of Economic Development for
Public Infrastructure Assistance Program funds;
(j) Pay all fees, expenses and charges in respect to this Agreement or its
making in any way connected therewith including, but not limited to, legal fees,
abstract continuation, recording and filing fees, mortgage taxes, documentary
stamps, and any other taxes, fees and expenses payable in connection with this
transaction; and
(k) Comply with all requirements imposed upon City under its contract with
the Iowa Department of Economic Development of which it has been notified of by
C ty.
10. DEFAULT. Company shall be in default if:
(a) It fails to pay any installment of principal or interest on the Note or any
other indebtedness of Company (whether to City or any other public or private
lender) when due or within ten (10) days thereafter;
(b) It becomes insolvent or admits in writing its inability to pay its debts as
they mature; or applies for, consents to or acquiesces in the appointment of a
trustee or received for any of its property; or in the absence of an application for
consent, or acquiescence, a trustee or receiver is appointed for it or a substantial
part of its property and is not discharged within thirty (30) days; or it otherwise
commits an act of bankruptcy; or any bankruptcy, reorganization, debt arrangement
or other proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, is instituted by or against it and if instituted is consented to or
acquiesced in by it or remains for thirty (30) days undismissed;
(c) It fails, in any material respect, in the performance of the terms and
conditions of this Agreement (other than the payment terms referred to in (a) above)
and such non-performance continues for thirty (30) days after notice thereof from
City (or from any other holder of the Note);
(d) Any warranty made by Company is untrue in any material respect, or
any schedule, statement, report, notice or writing furnished by Company to City is
untrue in any material respect on the date as of which the facts set forth are stated
or certified;
(e) Any government board, agency, department, commission or public or
private lender takes possession or control of any substantial part of the property of
Company and such possession or control continues for thirty (30) days.
11. REMEDIES ON DEFAULT. If any default occurs under Section 10
hereof, the City may take any one or more of the following actions:
(a) The City may suspend its performance under this Agreement until it
receives assurances from Company, deemed satisfactory to the City in its sole
discretion, that Company will cure its default and continue its performance under this
Agreement;
(b) The City may declare the Note to be immediately due and payable, at
which time all unpaid principal and interest shall immediately become due and
payable and the City may take any and all lawful actions as may be available to it to
collect the same from Company;
(c) The City may take possession of any machinery or equipment made
subject of a security interest in favor of the City to secure the Note in accordance
with Iowa law; and
(d) The City may take any action, including legal, equitable or
administrative action, which may appear necessary or desirable to collect any
amounts due under this Agreement or to enforce performance and observance of
any obligation, agreement or covenant of Company hereunder.
No remedy herein conferred upon or reserved to the City is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver thereof, but any
such right and power may be exercised from time to time and as often as may be
deemed expedient.
In the event any agreement contained in this Agreement should be breached
by Company and thereafter waived by the City, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Whenever any default occurs and City shall employ attorneys or incur other
expenses for the collection of payments due or to become due or for the
enforcement or performance or observance of any obligation or agreement on the
part of Company herein contained, Company agrees that it shall, on demand
therefor, pay to City the reasonable fees of such attorneys and such other expenses
so incurred by City.
12. MAINTENANCE OF RECORDS AND RIGHT TO INSPECT, Company
will keep and maintain all normal business books and records and all other
documents, invoices and receipts relating directly to the receipt and disbursement of
loan funds and job creation and any duly authorized independent accounting
representative of City shall at all reasonable times and upon reasonable notice have
access to and the right to inspect, copy, audit and examine all such books and other
documents of Company pertaining to the Project until the completion of all closeout
procedures respecting City's loan and the final settlement and conclusion of all
issues arising out of said loan.
13. ADDRESS. Company's business address is:
Eagle Window & Door, Inc.
Attn: David N. Beeken, President
P.O. Box 1072
Dubuque, Iowa 52004-1072
With copy to:
Stephen J. Juergens
Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C.
151 West 8th Street
200 Security Building
Dubuque, Iowa 52001
Company shall promptly give City written notice of any further change in its
principal office address. City's address is:
Economic Development Department
City Hall
50 West 13th Street
Dubuque, Iowa 52001
14. ACCESS TO PROJECT. Company agrees that any duly authorized
representative of City or of the State of Iowa shall at all reasonable times and upon
reasonable notice have access to any portion of the Project until the completion of
all closeout procedures associated with this loan.
15. LIMITATION OF CITY'S LIABILITY FOR PROJECT ACTIVITIES.
City shall not be liable to Company, or to any party, for the completion of, or the
failure to complete, any activities which are part of the Project, except as may be
specifically provided in this Agreement. Company agrees to indemnify, hold
harmless and defend City from any such claims against City for which liability is
limited hereunder.
16. CONFLICT OF INTEREST. Company agrees that no member, officer
or employee of City, or its designees or agents, nor any consultant or member of the
governing body of City, and no other public official of City who exercises or has
exercised any functions or responsibilities with respect to the Project during his or
her tenure, or who is in a position to participate in a decision making process or gain
inside information with regard to the Project, shall have any interest, direct or
indirect, in any contract or subcontract, or the proceeds thereof, for work to be
pe~ormed in connection with the Project, or in any activity, or benefit therefrom,
which is part of this Project at any time during or after such person's tenure.
17. NON-DISCRIMINATION. In carrying out the Project, Company shall
not discriminate against any employee or applicant for employment because of race,
religion, color, sex, national origin, age or disability. Such action shall include, but
not be limited to, the following: employment upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rate of pay or other
forms of compensation; and selection for training, including apprenticeship.
Company shall post in a conspicuous place, available to employees and applicants
for employment, notices to be provided by City setting forth the provisions of this
non-discrimination clause. Company shall state that all qualified applicants will
receive consideration for employment without regard to race, religion, color, sex,
national origin, age or disability.
18. NO ASSIGNMENT OR SUCCESSION. Company acknowledges and
agrees that no transfer of loan funds by City to Company shall be deemed an
assignment of funds, and Company shall neither succeed to any rights, benefits, or
advantages of City authorities or interests in or under the terms of its contract with
the Iowa Department of Economic Development.
19. DISCLAIMER OF RELATIONSHIPS. Nothing contained in this
Agreement between the parties, nor any act of City or Company shall be deemed or
construed by any of the parties, or by any third persons, to create any relationship of
third party beneficiary, principal or agent, limited or general partnership, or joint
venture, or of any association or relationship involving the State of Iowa.
20. NOTICE. Any notice, if mailed by United States certified mail, shall be
deemed given when mailed, postage prepaid, addressed to Company at its address
shown above, or at any other address subsequently designated to City by Company.
21. SUCCESSORS AND ASSIGNS. All covenants, representations,
warranties and agreements herein set forth shall be binding upon Company, and its
legal representatives, successors and assigns. This Agreement may not be
assigned by City or Company, without the express written consent of the other party.
22. LEGALITY. If any provision of this Agreement shall, for any reason, be
held to be invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision hereof, but this Agreement shall be construed as if such invalid
or unenforceable provision had never been contained herein.
23. GOVERNING LAW. This Agreement and all rights and duties
hereunder, including but not limited to, all matters of construction, validity and
performance shall be governed by the laws of the State of Iowa.
24~ SURVIVAL OF REPRESENTATIONS. All representations or
warranties of Company shall survive the execution and delivery of this Agreement
and the Note executed and delivered under it, and no investigation by City nor any
closing shall affect the representations or warranties or the right of City to rely on
and enforce them.
9
25. DELAY. No delay on the part of City or the holder of any Note in the
exercise of any right shall operate as a waiver, nor shall any single or partial
exercise of any right preclude other or additional exercise of any right.
26. DEFINITIONS.
(a) "Contract" shall mean that Agreement entered into by City and the
Iowa Department of Economic Development governing the use by City of Public
Infrastructure Assistance Program funds.
(b) "Forgivable loan" shall mean a loan for which repayment is eliminated
in part or entirely if the Company satisfies the terms of this Agreement, including the
Job Attainment Obligations.
(c) "Project" shall mean the construction, equipping and staffing by the
Company of a new manufacturing and office facility on Kerper Boulevard in
Dubuque, Iowa.
(d) "Qualifying Project Expenses" shall mean those expenditures or
expenses incurred by Company for (i) the acquisition of machinery and equipment
and (ii) moving and relocation costs associated with the transfer of Company's
operations to the site of the Project, including direct Company labor in
moving/relocating and sales tax paid, but such costs shall be deemed to be
"Qualifying Project Expenses" only after the Project building facilities have been
substantially completed and placed in service.
(e) "Full-Time Job Equivalent" shall equal a total of forty (40) hours of
labor per work week. Such hours may be accrued by single individuals or divided
among two (2) or more Company employees.
IN WITNESS WHEREOF, City has caused this Loan Agreement to be
executed by the City Manager. The Company has executed this Loan Agreement in
its corporate name by its duly authorized officer. All of the above occurred as of the
__ day of September, 2002.
CITY OF DUBUQUE, IOWA
EAGLE WINDOW & DOOR, INC.
By: By:
Michael C. Van Milligen
City Manager
David N. Beeken, President
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10
Exhibit A
PROMISSORY NOTE
EAGLE WINDOW & DOOR, INC.
Public Infrastructure Assistance Program Loan
Value: $692,000.00
FOR VALUE RECEIVED, Eagle Window & Door, Inc. ("Company") promises
to pay to the order of the CITY OF DUBUQUE, IOWA, a municipal corporation
("City"), the principal amount of Six-Hundred Ninety-Two Thousand Dollars
($692,000.00), to be paid pursuant to the terms of the attached Loan Agreement
dated the day of September, 2002 ("Loan Agreement"), as follows:
a $692,000.00 forgivable loan at four and one-half percent (4.5%) interest to
be paid as follows:
No payments of principal or interest shall be made until December 31, 2003
at which time a determination will be made by City as to whether Company
has fulfilled the Job Attainment Obligations of Section 9 of the Loan
Agreement. If Company has fulfilled those Job Attainment Obligations, the
entire loan will be forgiven. If Company has fulfilled less than fifty percent
(50%) of the Job Attainment Obligation of Section 9 of the Loan Agreement
as of December 31, 2003, full repayment of all principal and accrued interest
shall be required. If Company has fulfilled at least fifty percent (50%) of its
Job Attainment Obligation, $4,119.00 will be forgiven for each new FTE job
created. Any unforgiven balance plus interest from December 31, 2003, will
be amortized over three (3) years with three (3) annual payments due on
December 31 of 2004, 2005 and 2006. Interest on the unforgiven balance
from the date of first disbursement to December 31, 2003 will be payable
immediately. City shall calculate all amounts due hereunder on December 31,
2003 and prepare a repayment schedule which should thereafter be attached
to this Note and thereby made a part hereof.
1. Payments. All payments hereunder shall be made in lawful money of the
United States at the administrative offices of the Finance Department of City, or at
such other place as City may from time to time in writing designate. Payments shall
be applied first to interest and then to principal.
2. Loan Agreement. This Promissory Note is made, executed and delivered
in accordance with and subject to all of the terms and provisions of the Loan
Agreement, dated the __ day of September, 2002 ("Loan Agreement") entered
into and between Company, as borrower, and City, as lender, which is incorporated
herein by reference. At the election of the City, without notice to the Company, this
Note shall become immediately due and payable in the event any payment is not
made when due or upon the occurrence of any event of default under the terms of
the Loan Agreement.
3. Security. This Promissory Note is secured by a first lien and purchase
money security interest in the machinery and/or equipment purchased with loan
proceeds.
4. Acceleration Upon Default. In the event of a default in payment of any
interest or any installment of principal required hereunder, or in the event of
occurrence of an act of default under Section 10 of the Loan Agreement or any
mortgage or security agreement between the parties, then written notice of said
default shall be given by City to Company, and Company shall have the time
specified in such agreement if any is specified, to cure said default. If default is not
cured by Company within the time allowed, City may, at its option declare the entire
unpaid amount, including interest, to be immediately due and payable, or take such
other actions as may be permitted under the Loan Agreement. Principal and interest
not paid when due shall draw interest at a rate of fifteen percent (15%) per annum.
Company agrees to pay all expenses of collection, including reasonable attorney's
fees, court costs, abstracting costs, storage costs, costs of disposition of collateral,
and any and all other related and incidental expenses thereto, all of which shall first
be deducted from the proceeds of sale or foreclosure. In addition, the holder of this
Note shall have all other rights and remedies as are provided for under the Loan
Agreement, or as are provided by law.
5. Waiver. Makers, endorsers and sureties waive demand of payment,
notice of nonpayment, protest and notice thereof. Sureties, endorsers and
guarantors agree to all of the provisions of this Note and consent that the time or
times for payment of all or any part hereof may be extended after maturity, from time
to time, without notice.
EAGLE WINDOW & DOOR, INC.
David N. Beeken, President Date