Dubuque Initiatives_Rosheck Building Development Agreement_Collateral AssignmentTHE CITY OF Dubuque
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Masterpiece on the Mississippi
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Collateral Assignment of City of Dubuque/Dubuque Initiatives
Development Agreement
DATE: May 28, 2009
City Attorney Barry Lindahl recommends City Council approval of a Collateral
Assignment of the Development Agreement between the City of Dubuque, Iowa and
Dubuque Initiatives.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
~~ ~~ ~ .
Michael C. Van Milligen ~ ~ J-.-~ 1
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
..~ ~ ;
THE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi /
BARRY LINDA
CITY ATTORNEY
To: Michael C. Van Milligen
City Manager
DATE: May 26, 2009
RE: Collateral Assignment of City of Dubuque/Dubuque Initiatives
Development Agreement
The City of Dubuque, Iowa and Dubuque Initiatives are parties to a Development
Agreement dated February 17, 2009, as amended by the Amendment to Development
Agreement dated April 27, 2009 (collectively, the "Development Agreement") relating to
the redevelopment of the Roshek Building located generally at 700 Locust Street in the
City. Section 4.8 of the Development Agreement provides that the Development
Agreement cannot be assigned by Dubuque Initiatives prior to the completion of the
Minimum Improvements described therein without the prior written consent of the City,
in its sole discretion.
The City and Dubuque Initiatives, together with other intermediary parties, intend to
enter into various agreements for the purpose of obtaining new market and historic tax
credits in connection with the development of the Roshek Building, pursuant to which
certain loans will be made to Dubuque Initiatives or to entities controlled by Dubuque
Initiatives by ICD VIII, L.L.C., an Iowa limited liability company, and USBCDE Sub-CDE
XXXV, LLC, a Delaware limited liability company, the lenders.
As a condition to making such loans, the lenders have asked Dubuque Initiatives to
assign its interests in the Development Agreement to the lenders for collateral
purposes.
I recommend that the Resolution Consenting to a Collateral Assignment of the
Development Agreement between the City of Dubuque, Iowa and Dubuque Initiatives
pursuant to Section 4.8 of the Development Agreement be submitted to the City Council
for consideration and approval. Pursuant to the Resolution, the City consents to the
assignment of the Development Agreement by Dubuque Initiatives to the lenders as set
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 30O MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
forth in the Collateral Assignment of Development Agreement attached hereto, in
substantially the form and content now before this meeting, but with such changes,
modifications, additions or deletions therein as may be approved by such officers upon
the advice of the City Attorney.
cc: Dave Heiar, Economic Development Director
Bill Noth, Esq.
William H. Callahan, President, Dubuque Initiatives
F:\USERS\tsteckle\Lindahl\IBMVIAVM_CollateralAssignmentDl DA_052609.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
(This Notice to be posted)
NOTICE AND CALL OF PUBLIC MEETING
Governmental Body: The City Council of Dubuque, Iowa.
Date of Meeting: , 2009.
Time of Meeting: o'clock _.M.
Place of Meeting: Historic Federal Building, 350 West 6th Street, Dubuque,
Iowa.
PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental
body will meet at the date, time and place above set out. The tentative agenda for said
meeting is as follows:
X Resolution consenting to a collateral assignment of the Development Agreement
between the City of Dubuque, Iowa and Dubuque Initiatives.
Such additional matters as are set forth on the additional
hereto.
page(s) attached
(number)
This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of
Iowa, and the local rules of said governmental body.
City Clerk, Dubuque, Iowa
-1-
2009
The City Council of Dubuque, Iowa, met in
Federal Building, 350 West 6th Street, Dubuque, Iowa, at
above date. There were present Mayor
the following named Council Members:
Absent:
**~*~~:~
session, in the Historic
_ o'clock _.M., on the
in the chair, and
-2-
Council Member Jones introduced the following Resolution
entitled "RESOLUTION CONSENTING TO A COLLATERAL ASSIGNMENT OF
THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA
AND DUBUQUE INITIATIVES ", and moved that the same be adopted. Council
Member Voetberg seconded the motion to adopt. The roll was called
and the vote was,
AYES:
Resnick, Voetberg, Braig, Connors, Jones, Lynch
NAYS: None
Whereupon, the Mayor declared the resolution duly adopted as follows:
RESOLUTION N0. 169-09
RESOLUTION CONSENTING TO A COLLATERAL ASSIGNMENT
OF THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
DUBUQUE, IOWA AND DUBUQUE INITIATIVES
WHEREAS, the Cit of Dubuque, Iowa ("City") and Dubuque Initiatives
("Developer") are parties to a Development Agreement dated February 17, 2009, as
amended by the Amendment to Development Agreement dated Apri127, 2009
(collectively, the "Development Agreement") relating to the redevelopment of the Roshek
Building located generally at 700 Locust Street in the City; and
WHEREAS, Section 4.8 of the Development Agreement provides that the
Development Agreement cannot be assigned by the Developer prior to the completion of
the Minimum Improvement described therein without the prior written consent of the
City, in its sole discretion; and
WHEREAS, the City and the Developer, together with other intermediary parties,
intend to enter into various agreements for the purpose of obtaining new market and
historic tax credits in connection with the development of the Roshek Building, pursuant
to which certain loans will be made to Developer or to entities controlled by Developer
by ICD VIII, L.L.C., an Iowa limited liability"company, and USBCDE Sub-CDE XXXV,
LLC, a Delaware limited liability company (together, the "Lenders"); and
-3-
WHEREAS, as a condition to making such loans, the Lenders have asked the
Developer to assign its interests in the Development Agreement to Lenders for collateral
purposes; and
WHEREAS, the City Council has determined to consent to such assignment.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1. Pursuant to Section 4.8 of the Development Agreement,. the City hereby
consents to the assignment of the Development Agreement by the Developer to the
Lenders as set forth in the Collateral Assignment of Development Agreement attached
hereto, and the Mayor and the City Clerk be and they are hereby authorized, empowered
and directed to execute, attest, seal and deliver the form of City's Consent Regarding
Development Agreement attached thereto and made a part thereof for and on behalf of
the City, in substantially the form and content now before this meeting, but with such
changes, modifications, additions or deletions therein as may be approved by such
officers upon the advice of the City Attorney.
Section 2. All other provisions of the Development Agreement are hereby ratified,
confirmed and approved.
PASSED AND APPROVED this 1st day of June , 2009.
CITY OF DUBUQUE, IOWA
Roy D Buol, Mayor
ATTEST:
Jeanne F. Schneider, CMC, City Clerk
-4-
CIG-3
9/91
CERTIFICATE
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is
a true and complete copy of the portion of the corporate records of said Municipality
showing proceedings of the Council, and the same is a true and complete copy of the
action taken by said Council with respect to said matter at the meeting held on the date
indicated in the attachment, which proceedings remain in full force and effect, and have
not been amended or rescinded in any way; that meeting and all action thereat was duly
and publicly held in accordance with a notice of meeting and tentative agenda, a copy of
which was timely served on each member of the Council and posted on a bulletin board
or other prominent place easily accessible to the public and clearly designated for that
purpose at the principal office of the Council (a copy of the face sheet of said agenda
being attached hereto) pursuant to the local rules of the Council and the provisions of
Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at
least twenty-four hours prior to the commencement of the meeting as required by said
law and with members of the public present in attendance; I further certify that the
individuals named therein were on the date thereof duly and lawfully possessed of their
respective city offices as indicated therein, that no Council vacancy existed except as may
be stated in said proceedings, and that no controversy or litigation is pending, prayed or
threatened involving the incorporation, organization, existence or boundaries of the City
or the right of the individuals named therein as officers to their respective positions.
WITNESS my hand and the seal of said Municipality hereto affixed this
day of , 2009.
City Clerk, Dubuque, Iowa
SEAL
DCORNELL/ 618822.1 /MSWord\10422.087
-5-
COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT
THIS COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT
("Assignment") is made and entered into as of 2009, by DUBUQUE
INITIATIVES, an Iowa non-profit corporation ("Contractor") and ROSHEK BUILDING
QALICB, LLC, an Iowa limited liability company ("Borrower"), to USBCDE SUB-CDE
XXXV, LLC, a Delaware limited liability company, as administrative agent for, and for the
benefit of, the Lenders (as hereafter defined) (together with its successors and assigns in its
capacity as administrative agent for Lenders, the "Administrative Agent").
RECITALS:
A. Borrower, ICD VIII, L.L.C., an Iowa limited liability company ("ICD Sub-
CDE") and USBCDE Sub-CDE XXXV, LLC, a Delaware limited liability company
("USBCDE Sub-CDE") (each of ICD Sub-CDE and USBCDE Sub-CDE, together with their
respective successors and assigns, a "Lender" and collectively, the "Lenders") and
Administrative Agent are entering into a certain Loan Agreement of even date herewith (as
amended, restated or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Lenders will make certain loans (collectively, the "Loans") to Borrower in
the aggregate maximum principal amount of $19,700,000.00 that are described in the Loan
Agreement. The Loans also will be evidenced by Borrower's promissory notes to Lenders of
even date herewith described in the Loan Agreement (as each is amended, restated or
otherwise modified from time to time, collectively, the "Notes") and will be secured by,
among other things, that certain Open-End Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing made by Borrower to Administrative Agent for the
benefit of Lenders also of even date herewith (as amended, restated or otherwise modified
from time to time, the "Security Instrument") that encumbers certain improved real
property identified therein (the "Real Estate") (the Real Estate, together with all
improvements thereon and personal property associated therewith, whether now or hereafter
existing, is hereinafter collectively called the "Property"). All capitalized terms used herein
but not defined shall have the meanings ascribed to them in the Loan Agreement.
B. The proceeds of the Loans will be used to provide additional financing for the
rehabilitation, construction and development of Project, all as more fully described in the
Loan Agreement.
C. Contractor and Borrower have entered into and executed an AIA Form A102-
2007 Standard Form of Agreement Between Owner and Contractor, dated as of even date
herewith of June 6, 2008 (together with any and all modifications, extensions, amendments
and replacements thereof, the "Construction Contract"), pursuant to which Contractor has
agreed to perform and construct the Project.
D. Borrower has, or will be entering into that certain Assignment of Construction
Agreements and Permits, dated as of even date herewith, in favor of Administrative Agent
for the benefit of Lenders, under which Borrower, among other things, has assigned to
1760199.3
Administrative Agent Borrower's rights and interests under the Construction Contract as
security for the Loans.
E. In connection with the Project, Contractor has entered into that certain
Development Agreement dated February 17, 2009 between the City of Dubuque, Iowa (the
"City") and the Contractor (together with all amendments, modifications or replacements
thereof, the "Development Agreement").
F. Contractor will materially benefit from Lenders making the Loans to Borrower
and Lender will not make the Loans under the Loan Agreement unless this Assignment is
executed.
G. Contractor and Borrower desire to execute this Assignment, in accordance with
the terms and provisions hereof, in order to induce Lenders to make the Loans pursuant to the
Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Contractor and Borrower, Contractor and
Borrower hereby represent and warrant to and agree with Administrative Agent and Lenders
as follows:
Section 1. Contractor and Borrower each hereby absolutely and unconditionally
sells, assigns, transfers, sets over and delivers to Administrative Agent for the benefit of
Lenders all of Contractor's and Borrower's now existing, or hereafter acquired, right, title
and interest in and to the Development Agreement. Except as set forth below, this
Assignment includes the immediate and continuing right of Contractor (and Borrower, to the
extent Borrower has any such rights) to enforce any rights and receive any benefits under the
Development Agreement (collectively the "Contract Rights"). Notwithstanding the
assignments set forth above, so long as no Event of Default (as hereinafter defined) shall
have occurred, Contractor and Borrower shall have a license, revocable upon the occurrence
of an Event of Default, to collect and retain all amounts which may become payable to
Contractor or Borrower under the Development Agreement, and otherwise exercise and
enforce all of Contractor's or Borrower's respective Contract Rights thereunder and receive
and enjoy any benefits thereunder, subject to the limitations hereof and of the Loan
Documents.
Section 2. Neither this Assignment nor any action by Administrative Agent or
any Lender shall constitute an assumption by Administrative Agent or any Lender of any
obligations under the Development Agreement, and Contractor shall continue to be liable for
all obligations of Contractor thereunder and Borrower shall continue to be liable for all
obligations of Borrower thereunder. Contractor and Borrower hereby agree to perform all of
their respective obligations, if any, under the Development Agreement and agree to
indemnify and hold Administrative Agent and Lenders harmless against and from any loss,
cost, liability, or expense (including, but not limited to, reasonable attorney fees) resulting
from any failure of Contractor or Borrower to so perform.
1760199.3
Section 3. Administrative Agent, on behalf of Lenders, shall have the right at any
time (but shall have no obligation) to take in its name or in the name of Contractor or
Borrower such action as Administrative Agent may at any time determine to be necessary or
advisable to cure any default under the Development Agreement, to exercise or enjoy
Contractor's or Borrower's rights and benefits under the Development Agreement, including
utilizing the Development Agreement and the Contract Rights in connection with the
completion of the Project, and to otherwise or to protect the rights of Contractor, Borrower,
Administrative Agent or the Lenders thereunder. Neither Administrative Agent nor any
Lender shall incur any liability if any action so taken by it or on its behalf shall prove to be
inadequate or invalid, and Contractor and Borrower each agree to hold Administrative Agent
and Lenders free and harmless against and from any loss, cost, liability, or expense
(including, but not limited to, reasonable attorney fees) incurred in connection with any such
action.
Section 4. Contractor and Borrower hereby irrevocably constitute and appoint
Administrative Agent to be Contractor's attorney-in-fact, in Contractor's, Borrower's or in
Administrative Agent's name, to enforce all rights of Contractor or Borrower under the
Development Agreement; provided however, such power of attorney shall be effective only
after an Event of Default hereunder.
Section 5. Prior to any Event of Default under the Assignment, Contractor and
Borrower shall have the right to exercise their respective rights under the Development
Agreement, provided that Contractor and Borrower: (i) shall at all times enforce the terms
and conditions of the Development Agreement, and (ii) shall not cancel or amend the
Construction Contract or the Development Agreement or do or suffer to be done any act
which would impair the security constituted by this Assignment, without the prior written
consent of Administrative Agent.
Section 6. This Assignment shall be binding upon Contractor, Borrower and their
respective successors, legal representatives, and assigns, and shall inure to the benefit of
Administrative Agent, Lenders, and' their respective successors and assigns, including any
purchaser upon foreclosure of the Mortgage securing the Loans contemplated by the Loan
Agreement, any receiver in possession of the property described therein, and any corporation
formed by or on behalf of Administrative Agent or a Lender which assumes Administrative
Agent's or Lender's rights and obligations under the Loan Agreement.
Section 7. The occurrence of any of the following shall constitute an "Event of
Default" under this Assignment: (a) the failure of Contractor or Borrower to perform or to
observe any agreement, covenant, or condition required under this Assignment, which failure
is not cured within ten (10) days after written notice from Administrative Agent to Contractor
or Borrower (provided that Contractor or Borrower shall not be entitled to a cure period
hereunder if such breach or default is not capable of being cured as determined by
Administrative Agent); (b) the breach by Contractor or Borrower of any representation or
warranty given or made hereunder by Contractor or Borrower or in any writing furnished or
to be furnished by Contractor or Borrower under this Assignment; (c) any breach or default
by Contractor or Borrower under the Construction Contract or the Development Agreement
1760199.3
has continued beyond any applicable cure period therefor; or (d) an Event of Default under
any of the Loan Documents.
Administrative Agent, upon the occurrence of an Event of Default, at its option, upon
written notice to Contractor, Borrower and the City, shall have the right to terminate and
revoke the license hereinabove granted to Contractor and Borrower and shall have the
complete right and authority then or thereafter to exercise and enforce any and all of its rights
and remedies provided herein or by law. Upon the occurrence of an Event of Default, and
upon Administrative Agent's election, Borrower and Contractor shall deliver to Lender the
original of the Construction Contract and the original of the Development Agreement, and all
modifications, extensions, renewals, amendments, and other agreements relating thereto and
to the Property. Any oral agreements shall be described in a writing delivered by Borrower
or Contractor to Administrative Agent. Borrower and Contractor hereby authorize and direct
the other parties named in the Development Agreement, or the occupants of the Property,
upon receipt from the Administrative Agent of written notice to the effect that an Event of
Default exists under the Loan Documents, to cooperate fully with Administrative Agent and
to attribute to Administrative Agent all of Contractor's or Borrower's rights, powers and
privileges under the Construction Contract and the Development Agreement.
Section 8. Nothing in this Assignment shall obligate Administrative Agent or any
Lender to assume any obligations under the Construction Contract or the Development
Agreement or to take any action thereunder or to expend any money or incur any expense or
perform or discharge any obligation, duty or liability under the Construction Contract or the
Development Agreement or to assume any obligation or responsibility for the
nonperformance of the provisions thereof by Contractor or Borrower, unless and until
Administrative Agent or a Lender elects, in writing, to so assume said obligations of
Contractor or Borrower.
Section 9. Neither Administrative Agent nor any Lender shall be liable for any
loss sustained by Contractor or Borrower resulting from Administrative Agent's exercise of
its rights under the Construction Contract or the Development Agreement, or from any other
act or omission of Administrative Agent or any Lender under this Assignment unless such
loss is caused by the gross negligence or willful misconduct of Administrative Agent or
Lenders. Contractor and Borrower each agree to save, defend, indemnify and hold harmless
Administrative Agent and each Lender and their respective mangers, members, officers,
employees and agents harmless from and against any and all claims, losses, liabilities, costs
and expenses arising out of or resulting from this Assignment, including the exercise or
enforcement of any of the rights of Administrative Agent hereunder, except for any claims
resulting from the willful misconduct or grossly negligent actions of Administrative Agent or
any Lender. Contractor and Borrower shall reimburse Administrative Agent or Lender, as
applicable, on demand for any and all amounts incurred by Administrative Agent or Lender,
including attorneys' fees and expenses.
Section 10. The covenants and agreements herein contained shall bind and inure
to the benefit of the Administrative Agent and the Lenders and their successors and assigns.
This Assignment shall be governed by the law of the state of Iowa without regard to the
1760199.3
conflicts of law provisions thereof ("Governing State"). Neither this Assignment nor any of
the terms hereof, including the provisions of this Section, may be terminated, amended,
supplemented, waived or modified orally, but only by an instrument in writing executed by
the party against which enforcement of the termination, amendment, supplement, waiver or
modification is sought. The failure of any party hereto to execute this Assignment, or any
counterpart hereof, shall not relieve the other signatories from their obligations hereunder.
As used in this Assignment, (i) the terms "include," "including" and similar terms shall be
construed as if followed by the phrase "without being limited to," (ii) any pronoun used
herein shall be deemed to cover all genders, and words importing the singular number shall
mean and include the plural number, and vice versa, (iii) all captions to the Sections hereof
are used for convenience and reference only and in no way define, limit or describe the scope
or intent of, or in any way affect, this Assignment, (iv) no inference in favor of, or against,
Lender or Borrower shall be drawn from the fact that such party has drafted any portion
hereof or any other Loan Document, (v) the words "Administrative Agent", "Lender" and
"Borrower" shall include their respective successors (including, in the case of Borrower, any
subsequent owner or owners of the Property or any part thereof or any interest therein and
Borrower in its capacity as debtor-in-possession after the commencement of any bankruptcy
proceeding), assigns, heirs, personal representatives, executors and administrators, (vi) the
term "or" has, except where otherwise indicated, the inclusive meaning represented by the
phrase "and/or," (vii) the words "hereof," "herein," "hereby," "hereunder," and similar terms
in this Assignment refer to this Assignment as a whole and not to any particular provision or
section of this Assignment, and (viii) an Event of Default shall "continue" or be "continuing"
until such Event of Default has been waived in writing by Administrative Agent or the
Lenders. Wherever Administrative Agent's or a Lender's judgment, consent, approval or
discretion is required under this Assignment or Administrative Agent or a Lender shall have
an option, election, or right of determination or any other power to decide any matter relating
to the terms of this Assignment, including any right to determine that something is
satisfactory or not ("Decision Power"), such Decision Power shall be exercised in the sole
and absolute discretion of Administrative Agent or Lender, as applicable, except as may be
otherwise expressly and specifically provided herein. Such Decision Power and each other
power granted to Administrative Agent or a Lender upon this Assignment or any other Loan
Document may be exercised by Administrative Agent or a Lender or by any authorized agent
of Administrative Agent or a Lender (including any servicer and/or attorney-in-fact), and
Borrower hereby expressly agrees to recognize the exercise of such Decision Power by such
authorized agent.
1760199.3
Section 11. Contractor and Borrower each hereby consent to the jurisdiction of any
state or federal court located within the City of Dubuque, Iowa or the United States District
Court for the Northern District of Iowa, and any appellate court from any thereof, and waives
personal service of any and all process upon Contractor or Borrower and consents that all
such service of process be made by certified or registered mail directed to Borrower at the
address set forth in the Loan Agreement for Borrower, or directed to Contractor at the
address for Contractor set forth in the Construction Contract, and service so made shall be
deemed to be completed upon actual receipt thereof. Contractor and Borrower each waive
any objection to jurisdiction and venue of any action instituted against Contractor of
Borrower as provided herein and agrees not to assert any defense based on lack of
jurisdiction or venue. Contractor and Borrower further agree not to assert against
Administrative Agent or any Lender (except by way of a defense or counterclaim in a
proceeding initiated by Lenders) any claim or other assertion of liability with respect to this
Assignment, the Notes, any of the other Loan Documents, Lenders' or Administrative
Agent's conduct in respect of any of the foregoing or otherwise in any jurisdiction other than
the foregoing jurisdictions. Nothing in this Section shall affect the right of Administrative
Agent or a Lender to serve legal process in any other manner permitted by law or affect the
right of Administrative Agent or a Lender to bring any action or proceeding against
Contractor or Borrower in the courts of any other jurisdictions.
Section 12. Waiver of Trial by Jury: TO THE EXTENT NOW OR
HEREAFTER PERMITTED BY APPLICABLE LAW, CONTRACTOR AND
BORROWER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS ASSIGNMENT, THE SECURITY
INSTRUMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY CONTRACTOR AND BORROWER, AND
IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH
ISSUE AS TO WHICH RIGHT TO TRIAL BY JURY WOULD OTHERWISE
ACCRUE. ADMINISTRATIVE AGENT AND LENDERS EACH ARE HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND
CONTRACTOR.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
1760199.3
IN WITNESS WHEREOF, Contractor and Borrower has executed this Assignment to
be effective as of the day and year first above written.
Contractor:
DUBUQUE INITIATIVES,
an Iowa non-profit corporation
By:
Name: William H. Callahan
Title: President
STATE OF IOWA )
SS
COUNTY OF ~
This instrument was acknowledged before me on , 2009 by William H. Callahan,
the President of DUBUQUE INITIATIVES, an Iowa non-profit corporation.
(signature of notarial officer)
My commission expires:
[signatures continue on next page]
1760199.3
"Borrower"
Roshek Building QALICB, LLC, an Iowa
limited liability company
By: Roshek Building, Inc., an Iowa
corporation, its Managing Member
Bv:
Name: William H. Callahan
Title: President
STATE OF IOWA )
SS
COUNTY OF ~
This instrument was acknowledged before me on , 2009 by William H. Callahan,
the President of Roshek Building, Inc., an Iowa corporation, which is the Managing Member
of ROSHEK BUILDING QALICB, LLC, an Iowa limited liability company.
(signature of notarial officer)
My commission expires:
1760199.3
CITY'S CONSENT REGARDING DEVELOPMENT AGREEMENT
The undersigned, City of Dubuque, Iowa, an Iowa municipal corporation ("City")
hereby consents to the above assignment of the Development Agreement by Contractor and each
and every term thereof, and as an inducement to Lenders to make, and in consideration of Lenders
making, the loans to Borrower described above (the "Loans"), agrees with Administrative Agent and
Lenders as follows:
1. City shall immediately notify Administrative Agent in writing of any default by
Contractor under the Development Agreement. All notices to Administrative Agent pursuant hereto
shall be delivered to Administrative Agent, c/o USBCDE LLC, 1307 Washington Ave., Suite 300, St.
Louis, MO 63103, Attn: Director of Asset Management (HTC), Reference: Project Number 13489
and a copy to Polsinelli Shughart PC, 100 S. Fourth Street, Suite 1100, St. Louis, Missouri 63102,
Attention Jared M. Minkoff, Esq., unless Administrative Agent shall direct City otherwise.
2. Administrative Agent or its designee may enjoy the benefits of or enforce the
obligations of the Development Agreement with the same force and effect as if enforced by
Contractor and Administrative Agent or Borrower may perform the obligations of Contractor
thereunder, and City will accept such performance in lieu of performance by Contractor in
satisfaction of Contractor's obligations thereunder. In the event Administrative Agent or
Administrative Agent's designee ("Assuming Administrative Agent") expressly elects in writing to
assume Contractor's obligations under the Development Agreement, Assuming Administrative Agent
shall perform and be liable for all obligations of Contractor under the Development Agreement to the
same extent as Contractor.
3. City will not terminate the Development Agreement on account of any default of
Contractor thereunder without written notice to Administrative Agent expressly stating that City
intends to terminate the Development Agreement and first providing to Administrative Agent a
reasonable opportunity (but not less than 30 days) to, at the option of Administrative Agent: (a) effect
a cure of the default, if curable; or, (b) to declare Borrower or Contractor, or both, in default under the
Assignment and commence to complete or cause the completion of construction of the Project by
expressly assuming the Development Agreement in writing. In the event Assuming Administrative
Agent so elects to complete or cause the completion of the Project and assumes the Development
Agreement, City agrees not to terminate the Development Agreement so long as the material defaults
of Contractor thereunder, are cured by Assuming Administrative Agent within the time allowed under
the Development Agreement (but in no event less than 30 days). However, nothing herein shall
require Administrative Agent to cure any default of Contractor under the Development Agreement,
but only gives it the option to do so.
4. Notwithstanding anything in the Development Agreement or herein to the contrary,
neither Administrative Agent nor any Lender .shall have any personal liability to City unless
Administrative Agent or a Lender expressly elects in writing to assume the Development Agreement,
and City shall look solely to Contractor for satisfaction of any and all claims which Contractor may
have against Contractor under the Development Agreement.
1760199.3
Dated as of , 2009.
City:
CITY OF DUBUQUE, IOWA,
an Iowa municipal corporation
By:
Roy D. Buol, Mayor
1760199.3