Dubuque Racing Association_Second Amendment to Loan AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Racing Association Refinancing
DATE: October 27, 2010
In connection with the refinancing of the Mystique Casino build -out by the Dubuque
Racing Association, Ltd. (DRA), City Attorney Barry Lindahl recommends City Council
approval to the Second Amendment to Loan Agreement between DRA and American
Trust & Savings Bank, the First Amendment to the Assignment of the City -DRA Lease
Agreement, and the First Amendment to the Negative Pledge Agreement between the
City and American Trust & Savings Bank.
concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Michael C. Van Milligen
Dubuque
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All-America City
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2007
THE CITY OF
DUB
Masterpiece on the Mississippi
BARRY LIN
CITY ATTOI�
To:
DATE:
RE:
Mic aeI C. Van Milligen
City anager
October 26, 2010
MEMORANDUM
Dubuque Racing Association Refinancing
In connection with its refinancing of the Mystique Casino build -out, Dubuque Racing
Association, Ltd. (DRA) is requesting that the City consent to the attached Second
Amendment to Loan Agreement between DRA and American Trust & Savings Bank, the
attached First Amendment to the Assignment of the City -DRA Lease Agreement, and
the First Amendment to the Negative Pledge Agreement between the City and
American Trust & Savings Bank. The original Assignment and Negative Pledge
Agreement were approved by the City Council in 2004.
Paragraph 13 of the City -DRA Lease Agreement requires City consent to the
refinancing. The Second Amendment to Loan Agreement outlines the refinancing. In
summary, DRA is requesting American Trust & Savings Bank to grant to DRA two
additional loans: Loan 1 in the amount of $5,000,000.00 to provide financing for the
build -out of the Mystique Casino and Loan 2 in the amount of $14,911,173.02 also to
provide financing for the build -out of the Mystique Casino. The new loans will pay off
DRA's existing indebtedness to the bank and will be DRA's only outstanding
indebtedness to the bank. The details of the loans are set out in the Second
Amendment to Loan Agreement. The loans will be secured by a blanket security
position on all assets of DRA, an Assignment of the Lease Agreement between DRA
and the City, a Negative Pledge Agreement between DRA and American Trust &
Savings Bank, and a Collateral Pledge Agreement on a money market investment
account held at the bank between DRA and the bank.
The amendments also reflect the recent amendment to the legal description of the
property which DRA leases from the City.
The First Amendment to Assignment of Lease Agreement and First Amendment to
Negative Pledge Agreement appear proper in form. I recommend they be submitted to
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
the City Council for consideration and approval together with the attached resolution
approving the Second Amendment to Loan Agreement.
BAL:tls
Attachments
cc: Wayne A. Norman, Jr., Esq.
F: \USERS \Laserfiche Legal \DRA Lease Negotiations \MVM_DRARefinancing_102610.doc
NORMAN, FLEMING & NORMAN
ATTORNEYS
AN ASSOCIATION OF PROFESSIONAL CORPORATIONS
PLEASE REPLY TO:
300 MAIN STREET
SUITE 323
DUBUQUE, IA 52001
Barry A. Lindahl, Esq.
Corporation Counsel
City of Dubuque
300 Main St., Suite 330
Dubuque, IA 52001
Re: Dubuque Racing Association Refinancing
Dear Barry:
October 25, 2010
WAYNE A. NORMAN, JR.
wanna,nfnlawdbq.com
We represent American Trust & Savings Bank (the "Bank "), and Dubuque Racing Association, Ltd.
( "DRA "), has requested that the Bank refinance DRA's debt with the Bank. The Bank is willing to
do so contingent, in part, upon approval and execution by the City of Dubuque of a First Amendment
to Assignment of Lease Agreement and a First Amendment to Negative Pledge Agreement, copies
of which are enclosed.
You may recall that the City previously executed, on June 16, 2004, an Assignment of Lease and
Agreement and a Negative Pledge Agreement in connection with an earlier financing by DRA with
the Bank. Both Amendments simply reflect the financing currently requested by DRA, and update
the legal description of the property upon which the casino and track are located.
If there are any questions, please let me know.
Thanks for your assistance.
Sincerely,
Wayne A. Norman, Jr.
WAN:ljw
Enclosures (2)
300 MAIN STREET / SUITE 323 / DUBUQUE, IA 52001 / 563.552.1042 / FAX. 563.552.1041
101 NORTH RIVERVIEW / BELLEVUE, IA 52031 / 563.872.4187 / FAX. 563.872.5548
www.nfnlawdbq.com
Preparer: Barry A. Lindahl, Esq. Address: Suite 330, 300 Main Street, Dubuque, IA 52001
Telephone: (563) 583 -4113
RESOLUTION NO. 431-10
APPROVING THE SECOND AMENDMENT TO LOAN AGREEMENT BETWEEN
DUBUQUE RACING ASSOCIATION, LTD. AND AMERICAN TRUST & SAVINGS
BANK
WHEREAS, the City of Dubuque, Iowa (City) leases property to Dubuque Racing
Association, Ltd. (DRA) for the operation of the Mystique Casino; and
WHEREAS, the lease requires City consent to certain indebtedness incurred by
DRA; and
WHEREAS, DRA has requested American Trust & Savings Bank (Bank) to grant
to DRA two loans, one loan in the amount of $5,000,000.00 and the other loan in the
amount of $14,911,173.02; and
WHEREAS, the loans will be used by DRA to provide financing for the build -out
of the Mystique Casino; and
WHEREAS, the loans will also be used to pay off DRA's existing indebtedness to
Bank; and
WHEREAS, the terms and conditions of the loans are set forth in the Second
Amendment to Loan Agreement, a copy of which is attached hereto; and
WHEREAS, the City Council finds that consenting to the Second Amendment to
Loan Agreement is in the best interests of the City of Dubuque; and
WHEREAS, the City Council has previously approved an Assignment of the
Lease and a Negative Pledge Agreement between City and Bank with respect to DRA's
existing indebtedness to Bank; and
WHEREAS, DRA has requested that the City consent to the attached First
Amendment to the Assignment of the Lease and the First Amendment to the Negative
Pledge Agreement in connection with the Second Amendment to Loan Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA, AS FOLLOWS:
Section 1. The City Council hereby consents to the Second Amendment to Loan
Agreement on behalf of the City of Dubuque.
Section 2. The First Amendment to Assignment of Lease Agreement and First
Amendment to Negative Pledge Agreement are hereby approved and the Mayor is
hereby authorized and directed to execute the Amendments on behalf of the City of
Dubuque.
Attest:
Passed, approved and adopted this 1st day of November
eanne F. Schneider, City Clerk, CMC
Roy D. By6I, Mayor
, 2010.
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement ( "Amendment ") is effective December 1, 2010, between
Dubuque Racing Association, Ltd., an Iowa Non - Profit Corporation, ( "Borrower ") and American Trust
& Savings Bank ( "Bank ").
1. Recitals. Borrower has requested Bank to grant it two additional loans, Loan 1 in the amount of Five
Million & 00 /100 Dollars ($5,000,000.00) and Loan 2 in the amount of Fourteen Million Nine
Hundred Eleven Thousand One Hundred Seventy -Three & 02/100 Dollars ($14,911,173.02). Loans
1 and 2 will pay off all of Borrower's existing indebtedness to Bank. Consequently, Loans 1 and 2
will be Borrower's only outstanding indebtedness to Bank. Bank is willing to provide Loan 1 and
Loan 2 provided that said loans are legally bound by the terms of the Loan Agreement dated June
16, 2004, as amended by the First Amendment to Loan Agreement dated October 1, 2009
( "Agreement" and "First Amendment," respectively) by and between Dubuque Racing Association,
Ltd., an Iowa Non - Profit Corporation ( "Borrower "), and American Trust & Savings Bank
(" Bank "). Therefore, in consideration of the promises herein contained, and each intending to be
legally bound hereby, the parties agree as provided in this Amendment.
2. The introductory portion of Section 3, and subsections 3.1, 3.2, 3.3 and 3.4 of the Agreement and
Sections 2 and 3 of the First Amendment are deleted and the following substituted therefore:
3. The Loans. Subject to all of the terms and provisions of this Agreement, Bank
agrees to grant Loan 1 in the amount of Five Million & 00 /100 Dollars
($5,000,000.00) and Loan 2 in the amount of Fourteen Million Nine Hundred
Eleven Thousand One Hundred Seventy -Three & 02/100 Dollars ($14,911,173.02).
3.1. Loan 1. Loan 1 will be in the amount of Five Million & 00 /100 Dollars
($5,000,000.00) to provide financing for the build -out of the Mystique
Casino.
3.1.1. Rate & Term. Loan 1 is a 5 -year variable rate loan. The initial
interest rate will be 6.25 percent per annum and will adjusted daily
based on the base rate of corporate loans posted by at least 70
percent of United States Banks and known as The Wall Street
Journal Prime Rate, plus 300 basis points. The interest rate will
have a floor rate of 6.25 percent and a ceiling of 7.75 percent.
Interest will be calculated on an actual/360 -day basis. This loan
will be set up on a Sweep with the operating accounts of Borrower.
Balances in Borrower's account will be swept on a daily basis to
and from the Loan 1 based upon parameters to be established
between Bank and Borrower. Loan 1 is amortized over a ten year
period.
wp60docs\American Trust & Savings Bank\Dubuque Racing Association, Ltd. \Second Amendment. Loan Agreement 10.18.10 II
Page 1 of 4
3.1.2. Principal. The entire principal balance on Loan 1 will be due
November 30, 2015.
3.1.3. Interest. Interest on Loan 1 shall be paid from the date of
execution, or the date funds are first provided, whichever is later,
on the outstanding unpaid principal balances of Loan 1, from time
to time outstanding, computed on the basis of a year of three
hundred sixty (360) days and the actual number of days lapsed, said
payment consisting of all interest billed and unpaid through the last
day of the month preceding the month in which said payment is
due.
3.1.4. Payment. All sums payable to Bank under Loan 1 shall be paid in
immediately available funds. Bank shall send to Borrower
statements of all amount due under Loan 1, which shall be
considered correct and conclusively binding on Borrower unless
Borrower notifies Bank to the contrary within thirty (30) days of
Borrower's receipt of any statement that it deems to be incorrect.
3.2. Loan 2. Loan 2 will be in the amount of Fourteen Million Nine Hundred
Eleven Thousand One Hundred Seventy -Three & 02/100 Dollars
($14,911,173.02) to provide financing for the build -out of the Mystique
Casino, and will be drawn down in two advances on December 1, 2010, and
December 31, 2010.
3.2.1. Rate & Term. The interest rate will be fixed for ten years at 8.125
percent per annum. The amortization period for Loan 2 will be ten
years. Monthly payments will be approximately $182,820.00
Borrower has the option of making up to three principal
prepayments in any calendar year, which in the aggregate (along
with all other regular principal payments in that calendar year) shall
not exceed the amount of principal payments otherwise due for that
calendar year plus twenty percent of the principal balance
remaining on the loan at the time of such prepayment. Such
prepayment(s) shall be made on the first day of any month in that
calendar year. In the event of such prepayment(s), the Note for
Loan 2 will convert to interest -only payment for those months for
which principal prepayment has been made. Notwithstanding
prepayment penalties specified elsewhere in this Agreement, there
shall be no penalty for principal prepayments made pursuant to this
section 3.2.1.
3.2.2. Principal. The entire principal balance on Loan 2 will be due
November 30, 2020.
3.2.3. Interest. Interest on Loan 2 shall be paid from the date of
execution, or the date funds are first provided, whichever is later,
on the outstanding unpaid principal balances of Loan 2, from time
to time outstanding, computed on the basis of a year of three
Page 2 of 4
3.2.4. Payment. All sums payable to Bank under Loan 2 shall be paid in
immediately available funds. Bank shall send to Borrower
statements of all amount due under Loan 2, which shall be
considered correct and conclusively binding on Borrower unless
Borrower notifies Bank to the contrary within thirty (30) days of
Borrower's receipt of any statement that it deems to be incorrect.
3.3. Prepayment Penalty. Other than prepayments pursuant to section 3.2.1,
above, Borrower will be subject to a prepayment penalty of three percent
of outstanding principal balances during year one, two percent during year
two, and one percent thereafter if refinancing with another lender. This
prepayment penalty will be waived if Borrower is seeking to refinance the
entire facility in conjunction with an acquisition of significant nature. Bank
will have the opportunity to bid on any such refinancing activity.
3. Section 3.9 of the Agreement is amended to read as follows:
3.9. Disbursement. Borrower will request advances by phone, e -mail or written
request to be deposited to Borrower's general operating account.
4. Section 4.2.6. of the Agreement is amended to read as follows:
4.2.6. Approval of this Amendment and its ancillary documents,
satisfactory to Bank, by the Iowa Racing and Gaming Commission.
5. Section 16.5 of the Agreement is amended to read as follows:
16.5. Notices. Any notices or consents required or permitted by this Agreement shall be
in writing and shall be deemed delivered if delivered in person or if sent by certified
mail, postage prepaid, return receipt requested, or telegraph, as follows, unless such
address is changed by written notice hereunder.
If to the Borrower:
If to the Bank:
hundred sixty (360) days and the actual number of days lapsed, said
payment consisting of all interest billed and unpaid through the last
day of the month preceding the month in which said payment is
due.
Dubuque Racing Association, Ltd.
1855 Greyhound Park Road
Dubuque, IA 52001
Attn: Jesus Aviles, President & CEO
American Trust & Savings Bank
895 Main Street
Post Office Box 938
Dubuque, IA 52004 -0938
Attn: Victoria J. Richter, Vice President
Page 3 of 4
6. Subsections 3.7, 3.8, 3.9, 3.10, 3.11, 4.2.4, 4.2.7, 4.3, 4.4, 4.5, 4.6, 8.17, 8.18, 8.20, 8.21, 10.11,
10.12, 10.13, 16.16., 16.17, 16.19, 16.20 and 16.21 of the Agreement are deleted.
7. Sections 4 and 6 of the First Amendment are deleted.
8. Section 5 of the First Amendment is amended to read as follows:
3.6. Security. Loan 1 and Loan 2 will be secured by: a blanket first security position on
all assets of Borrower; an Assignment of Lease Agreement between Borrower (as
Lessee), the City of Dubuque, Iowa (as Lessor), and Bank; a Negative Pledge
Agreement between Borrower and Bank; and a Collateral Pledge Agreement on
Money Market Investment Account held at Bank between Borrower and Bank.
9. Ratification. Except as modified by the First Amendment and this Amendment, the terms of the
Loan Agreement are ratified and confirmed in their entirety.
In Witness Whereof, the parties have executed this Amendment on the date first above written.
American Trust & Savings Bank Dubuque Racing Association, Ltd.
By: B
Victoria J. Richter, Jesus Aviles, President
2 Sr. Vice President
Page 4 of 4
By:
Scott Zartman, Secretary
Preparer Information:
Attorney Wayne A. Norman, Jr.
Suite 323
300 Main Street
Dubuque, IA 52001
Phone: (563) 552 -1042
Taxpayer Information:
Dubuque Racing Association, Ltd.
P.O. Box 3190
Dubuque, IA 52004 -3190
Attn: Jesus Aviles, President and CEO
Return Document To:
Attorney Wayne A. Norman, Jr.
Suite 323
300 Main Street
Dubuque, IA 52001
Phone: (563) 552 -1042
Grantors: N /A.
Legal description: See Page 2
FIRST AMENDMENT
TO
ASSIGNMENT OF LEASE AGREEMENT
Recorder's Cover Sheet
Grantees: N /A.
Document or instrument number of previously recorded documents: N /A.
Page 1 of 1
FIRST AMENDMENT
TO
ASSIGNMENT OF LEASE AGREEMENT
Re: A parcel of land containing 36.235 acres, more or less, located on Chaplain Schmitt Memorial
Island, in the City of Dubuque, Dubuque County, Iowa, and legally described as set forth on
Exhibit 1, attached hereto (the "Real Estate ").
This First Amendment to Assignment of Lease Agreement ( "Amendment ") is effective December 1,
2010, among Dubuque Racing Association, Ltd., an Iowa non - profit corporation, Lessee, ( "Borrower "),
City of Dubuque, Iowa ( "Lessor ") and American Trust & Savings Bank ( "Bank ").
1. Recitals. On June 16, 2004, the parties entered into an Assignment of Lease Agreement
( "Agreement ") recorded June 16, 2004, as Instrument No. 10636 -04, records of Dubuque County,
Iowa. The parties now wish to amend the Agreement.
2. Section 1 is deleted, and the following substituted therefore:
1. Recitals. Borrower has leased from Lessor certain real property under Parts A and
C of a lease dated March 31, 2004, a copy of which was previously recorded as
Exhibit A to the original Assignment of Lease Agreement (the "Lease "). The
Lease was subsequently amended four times: by a First Amendment dated April 4,
2005; a Second Amendment dated June 29, 2005; a Third Amendment dated
February 2, 2009; and a Fourth Amendment dated June 7, 2010. The Bank has
authorized the making of loans to the Borrower by virtue of a Loan Agreement
executed by the Borrower and the Bank on June 16, 2004, as amended by a First
Amendment dated October 1, 2009, and by a Second Amendment of even date (the
"Loan "). The Loan is for the benefit of both Borrower and Lessor insofar as funds
from the Loan will be used for the benefit of the business conducted on the leased
premises. In consideration of the promises contained in this Agreement, and of the
disbursement of part or all of the Loan by Bank, Borrower, with the consent of
Lessor, assigns to Bank the lease referred to above during the remainder of its term,
including all extensions, renewals and amendments. Upon payment of the loan in
full, Bank shall provide to City in recordable form a cancellation of this
Assignment.
3. Ratification. Except as modified by this First Amendment, the terms of the Assignment of Lease
Agreement are ratified and confirmed in their entirety.
[SIGNATURE PAGE FOLLOWS.]
wp60docs\American Trust & Savings Bank \DRA\First Amendment. Assignment of Lease 9.8.10
Page 1 of 3
Effective as of the date first written above.
Dubuque Racing Association, Ltd. ' City of Dubuque
STATE OF IOWA, DUBUQUE COUNTY) ss:
KEVIN S. FIRNSTAHL
COMMISSION NO.745295
MY COMMISSION EXPIRES
American Trust & Savings Bank
Page 2 of 3
By: By:
Jesus Aviles, President Roy . Buol, Mayor
By:
Scott Zartman, Secretary Jeanne F. Schneider, City Clerk
By:
Victoria J. Richter, 2n Sr. Vice President
On this day of , 2010, before me, the undersigned, a Notary Public in and for the State
of Iowa, personally appeared Jesus Aviles and Scott Zartman, to me personally known, who, being by me
duly sworn, did say that they are the President and Secretary, respectively, of Dubuque Racing Association,
Ltd., executing the within and foregoing instrument, that no seal has been procured by the corporation; that
said instrument was signed on behalf of the corporation by authority of its Board of Directors; and that Jesus
Aviles, as President, and Scott Zartman, as Secretary, acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of the corporation, by it and by them voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this/ hay of /7 44 , 2010, before me, the undersigned, a Notary Public in and for the
State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who,
being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of
Dubuque, Iowa, executing the within and foregoing instrument, that no seal has been procured by the City;
that said instrument was signed on behalf of the City by authority of the City Council; and that Roy D. Buol
and Jeanne F. Schneider, as Mayor and City Clerk, acknowledged the execution of the foregoing instrument
to be the voluntary act and deed of the City, by it and by them voluntarily executed.
Notary
blic, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this day of , 2010, before me, the undersigned, a Notary Public in and
for the State of Iowa, personally appeared Victoria J. Richter, to me personally known, who, being by me
duly sworn, did say that she is the 2 Sr. Vice President of American Trust & Savings Bank, executing the
within and foregoing instrument, that the seal which appears below is the seal of the corporation; that said
instrument was signed on behalf of the corporation by authority of its Board of Directors; and that Victoria
J. Richter, as 2nd Sr. Vice President, acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation, by it and by her voluntarily executed.
Page 3 of 3
Notary Public, State of Iowa
A parcel of land containing 38.235 acres, more or test, located on Chaplain
Schmitt Memorial Island as set forth on exhibit A attached hereto and
described as follows:
Apart of the Southwest Quarter of Fractional Section 17 and part of the
Southeas Quarter of Fractional Section 18, T89N, R3E,Zth P.M. In the City
of Dubuque, Dubuque County, Iowa, more particularly •described as follows:
Commencing as a point of reference at the Southaagt comer ;o
Southeast Quarter of Fractional Section 18, T89N, R8E, 5th P.M. in
the City of Oulmdtie, Dubuque County, Iowa;
Thence NO1 26'43" W 338.88 feet along the westerly line of said
Southeast Quarter to a point of Intersection with the northerly right of
Exhibit 1
way line of Greyhound Pa* Road, said point being the point of
beginning Oils Is an assumed bearing for this description only);
Thence NB7 58'11 W 523.04 feet along said right of way to a point
of curvature;
Thenoe northwesterly 90.04 feet along a 1489.15 fOdt radius curve
Concave northerly N60 27f68 W 3881131 continuing along said
right o f f w e Y tO Peirit.ef teritlenCY;
Thence N72 87'46'W 97.0.9 feet continuing along saiki . right of way
to a point ofoutvature;
Theace nortfivre*erly Boum feet atorg a 2174:10 foot radius Curve
ocirteaVa adtithedy (chOfitt N7.8 584W ) toitiming algtv
aid right a tive'y to 0 point of tangency:
Thance N80 09'6"t'W 473.71 feel continuing along saleb right of way
to a point of curvature;
Thence' soUthWestany 317.30.feet ;Ong a 421.14 feet radius curve
concave Southeasterly (cherd $77 28'16" W 309.86 ft.) Continuing
along said right of way to a point of non4angency;
Thence N26.3911* W 162.14 feet;
Thence N28 06'34* E 163,87 feet:
The 8 481 E 674.06 feet;
Then' N38' 03'4r E 306.80 feet:
Thence NO7 3.3a. E 418.14 feet;
Thence $84 E 132,74 feet;
Thence S71 5008" E 79.09 feet;
Thence S66 44'07n E 384.16 feet;
Thence S64 39`07" E 374.89 feet;
Thence SS2 03'20" E 63.33 feet to a point of non-tangent curvature
and point of intersection with the westerly right of way line of Acimiral
Sheehy Drive;
Thence southwesterly 138.39 feet along a 305.05 foot radius curve
c,ancave southeasterly (chord S13 67'08"W 137.21 ft) along said right
of way to a point of tangency;
Thence S00 5720" W 523.35 feet continuing along said right of way;
Thence 846 29 14,01 feet continuing along said right of way;
Thence N87 5891' W 9.10 feet along the northerly right of way line
of Greyhound Park Road to the point of beginning.
The above destribed parool contains 36235 acres, more °Maas, and
is Subject te easertientsof record and het of reotird.
A paroel of land containin,g 0.062 acres i roots of lees, iodated on chaplain
8chrrilit Maitiorial island as set forth ort .:xhibit 8 attached hereto and
risseribed aefoilOws:
APartOf the SoLttileast Quarter ot" Fnactional Settion 18 and Part'of
Notteastopartfecsprapuotiai Seotisn 191 IVN. tkat Sth !M-
K the . Pity Of Dubuque, Dubullue •Count,y, 1(44i% more parOdoirly
desertbed OfellOWS;
Cornrnancinig as a pOint of reference et the Southeait Corner Of
SoutheastQyafter Of 'FrabtiOnal Section 18, T6814, , 5th P.M. in
the City Of Dubuqi.10, Oubutiue-Oounty; lOwa:
ThenOe S$8 $797'W 2,573.92 feet along the southerly line of said,
Southeast QUatter ton point of intersection wItlithe westerly right of
way line of Greyhotind Park Read, said point being the, point of
begnning oT teats Area 8 (this is an warned bearing for this
description Only);
Thane° northeasterly 175.43 feet along a, 406.90 foot curve concave
northerly (chard N$0 3519% 174.40 ft.) tonOnutrig alert said right of Way
to a point of tangency;
Thence N41 29 499.75 feet continuing along s d right of way
to a point Of cUrvature;
Thence northeasterly 101.55 feet along a 425.14 foot radius curve
Ooncave southeasterly (chord N49 03'50S 101.31 ft.) continuing
along said right of Way to a paint Of intersection with the westeriy line
of Dubuque Racing Association Lease A;
Thence N26 3911 2.02 feet continuing along said westerly line to
a point two (2) feet In perpendicular distance from the westerly right
of way line of Greyhound Park Road;
Thence southwesterly 102.32 feet along a 427,14 foot radius curve
concave southeasterly (chord 849 0447W 102,07 ft.) continuing
along a line parallel to said right of way;
Thence 841 ays "W 499.75 feet continuing along said parallel line
to a point of curvature;
Thence southwesterly 176.16 feet along a 468.90 foot radius- curve
concave soatlieasterly (chord $30 5'20 175.15 ft.) continuing
along said p.arallelline toe point of
Thence S19 4W 16$$35 feet 00rItinulng along said parallel line;
Thence toutheatterly 227453 feat aletige 254.57 foot radius curve
concave northeasterly (choril'S9 -14 %WE 22043 fr.) continiiing along
said parallel line
Thene S3451'03'8 45.73 feat continuing along said parallel line;
Thence $12 41'43MN 35.O4 ft to the northerly bOrrier Of en existing
structure'faaeeiTtent ap tshown on the Plat of Survey rebottled as
Instrument NO. 2009-18225 in the - Office of the Dubuque County
Reborclat
ThenceS30 06'07'W 20.00 fee along the northwesterly line of said
easement;
Thence S59 5353 32,62 feet along the southwesterly line of Said
easernent to a potat of intersection with the northerly right of way line
of Eat i 6th Street;
Thence nerthWesterty 72.26 feet, along a 75.00 foot radius curve
concave westerly (chord 147 14'59W 69.50 ft.) along the westerly
right of way line of Greyhound Park Road;
Thence N34 51'03V 45.73 feet along said right of way line;
Thence northwesterly 225.70 feet along a 262.67 foot radius curve
concave easterly (chord N9 14'46W 218.30 ft.) continuing along said
right of way line;
Thence N 19 4523W 163.65 feet continuing along said right of way
line to the point of beginning.
The above described parcel contains 0.062 acres, more or less, and
is subject to easements of record and not of reaircl.
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Dubuque Racing Association
Lease Area "A"
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Lease Area "B"
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KATHY FLYNN 11
COUNTY RECORDER
DUBUQUE CO., IOWA FEES /k/ 00
Prepared by: Wayne A. Norman, Jr., Norman, Gilloon, Wright & Hamel, P.C., 800 Main Street, P.O. Box 857, Dubuque, IA 52004 -0857
(563) 556 -6433
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS
OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Re: A parcel of land containing 43.73 acres, more or less, located on Chaplain Schmitt
Memorial Island lying immediately north of the Iowa - Wisconsin Bridge as set forth on the
plat attached hereto and made a part hereof and subject to a utility and roadway easement
located on and about the southerly property line, a roadway easement located on or about
the easterly property line, and a roadway easement on and about the westerly property line
(the "Real Estate ").
ASSIGNMENT OF LEASE AGREEMENT
SPACE ABOVE THIS LINE
FOR RECORDER
This Assignment of Lease Agreement ( "Agreement ") is effective �iiV€L ( , 2004,
among Dubuque Racing Association, Ltd., an Iowa non - profit corporation, Lessee, ( `Borrower "), City
of Dubuque, Iowa ( "Lessor ") and American Trust & Savings Bank ( "Bank ").
l . Recitals. Borrower has leased from Lessor certain real property under a Parts I and III of a lease
dated Mapce, 2004, a copy of which is attached hereto as Exhibit A (the "Lease "). The Bank
has authorized the making a loan to the Borrower by virtue of a Loan Agreement executed by the
Borrower and the Bank of even date ("Loan"). The Loan is for the benefit of both Borrower and
Lessor insofar as funds from the Loan will be used for the benefit of the business conducted on
the leased premises. In consideration of the promises contained in this Agreement, and of the
disbursement of part or all of the Loan by Bank, Borrower, with the consent of Lessor, assigns to
Bank the lease referred to above during the remainder of its term, including all extensions and
renewals. Upon payment of the loan in full, Bank shall provide to Ci*v in recordable form a
cancellation of this Assignment.
The Assignment of Lease Agreement between the parties dated September 7, 1995, is cancelled.
wp60docs■American Trust & Savings Bank\DRA\Assignment of Lease 5.18.04 -11
2. Borrower and Lessor Further Covenant and Agree:
a
2.1. Borrower is not now in default in the performance of the Lease; Borrower and Lessor
will each perform the covenants and conditions required of it by the Lease for the term of
the loan and any extensions or renewals.
2.2. Borrower and/or Lessor will not modify or terminate the Lease without the prior written
consent of Bank.
2.3. If Borrower defaults under the terms of the Lease, Lessor shall have the right to terminate
the Lease according to its terms. However, Lessor shall first give Bank sixty (60) days'
written notice of such default and the right, at the option of Bank, during such period, to
cure such default. During the sixty (60) day period, Lessor will take no action to enforce
its claim arising from such default without Bank's prior written consent.
2.4. If Borrower defaults in the performance of any of its obligations under the Loans, any
renewals or extensions, or of any related agreement, then Bank, at its option, may,
without notice, using such force as may be necessary, enter said leased premises and do
any one or more of the following: (1) Remove all personal property of Borrower that is
pledged as collateral for the Loans; (2) Sell such personal property; (3) Transfer and
assign the Lease and Borrower's rights in it to parties satisfactory to Bank; Lessor and the
Iowa Racing and Gaming Commission, and upon assignment the obligations of the Lease
shall be binding on such transferees. In the event that Bank undertakes the options
provided in Subsections (1) or (2), it shall have no obligation other than payment of rent
accruing during the period of its possession of the premises. In the event that Bank
transfers the Lease as provided in Subsection (3), Bank will cure all defaults in said
Lease, and its sole other obligation shall be the payment of rent which accrued prior to
the transfer of said Lease.
3. Subordination. Lessor subordinates any lien it has or may have on the personal property of
Borrower that is or may be security for the Loans to Bank's liens on Borrower's property, and to
Bank's rights under this Agreement. This subordination shall be effective regardless of whether
or not the collateral constitutes fixtures. For the purposes of this Agreement, the term "liens"
specifically includes any Landlord's Lien under Chapter 570, Code of Iowa, as amended, to which
the Lessor may be entitled. The Lessor further subordinates its rights to receive a Distribution of
Net Cash Proceeds under Section 43 of the Lease, as amended, in the event of and for so long as
the Borrower is in default of the Loan or as otherwise provided in sections 8.20 and 8.21 of the
Loan Agreement.
Warranty of Title. Lessor warrants that title to the leased premises is held by it in fee simple
and that it has full power and authority to enter into this Agreement.
Notices. All notices under this Agreement shall be in writing. and shall be deemed delivered if
delivered in person, if sent certified mai (postage prepaid, return receipt requested), telegraph
or facsimile, as follows:
If to Bank: American Trust & Savings Bank
895 Main Street
Post Office Box 938
Dubuque, IA 52004 -0938
Attn: Victoria J. Richter, Vice President
If to Borrower:Dubuque Racing Association, Ltd.
Post Office Box 3190
Dubuque, IA 52004 -3190
Attn: Bruce Wentworth, General Manager
If to Lessor: City of Dubuque
City Hall
50 West 13 Street
Dubuque, IA 52001
Attn.: Michael C. Van Milligen, City Manager
6. Applicable Law; Severability. This Agreement shall be subject to, construed and enforced in
accordance with the laws of the State of Iowa. If any provision of this Agreement is held invalid
under applicable Law, such invalidity shall not affect any other provision of this Agreement that
can be given effect without the invalid provision, and to this end, the provisions hereof are
severable.
7. Binding Effect; Assignment. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of the parties. Neither Borrower nor Lessor shall assign any
of its rights or obligations hereunder without the prior written consent of Bank.
8. Interpretation; Headings. Words and phrases herein shall be interpreted and understood
according to the context in which they are used. The headings in this Agreement are intended
solely for convenience of reference, and shall be given no effect in the construction or
interpretation of this Agreement.
9. Entire Agreement; Counterparts; Remedies Cumulative. This Agreement, including any
Exhibits, all of which are incorporated by this reference, and the documents executed and
delivered pursuant hereto, constitute the entire agreement between the parties, and may be
amended only by a writing signed by each party. All agreements, instruments and documents
referred to in this Agreement are by this reference made a part of this Agreement for all purposes.
This Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original, but all of which together shall constitute but one and the same instrument. The
parties shall have, in addition to the right and remedies provided by this Agreement, all those
allowed by all applicable laws, all of which shall be in extension of and not in limitation of those
provided hereunder.
10. Waivers. Except as herein expressly provided, no waiver by either party of any breach of this
Agreement, or of any warranty or representation hereunder, shall be deemed to be a waiver by the
same party of any other breach of any kind or nature (whether preceding or succeedhu, the breach
in question, and whether or not of the same or similar nature).
10.1. No acceptance by a party of payment or performance after any such breach shall be
deemed to be a waiver of any breach of this Agreement or of any representation or
warranty hereunder, whether or not the party knows of the breach when it accepts such
payment or performance.
10.2. No failure by a party to exercise any right it may have under this Agreement or under law
upon another party's default, and no delay in the exercise of that right, shall prevent it
from exercising the right whenever the other party continues to be in default. No such
failure or delay shall operate as a waiver of any default or as a modification of the
provisions of this Agreement.
11. / Attorney's Fees. If any action at law or in equity, including an action for declaratory relief, is
brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorney's fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by the arbitrator,
as the case may be, or may be enforced in a separate action brought for that purpose. Such fees
and costs of litigation shall be in addition to any other relief which may beawarded.
Effective as of the date first written above.
Dubuque Racing Association, Ltd.
By: Z1,lQ
By:
./i/. / -B
I
, IMAM - y;
American Trust & Savings Bank
Bv:
City of Dubuque
By: .J
Jeanne F. Schneider, City Clerk
ce G�
Terrance M. Duggan,
Victoria J. Richey', Vice President
�P aMnc a
WAYNE A. NORMAN, JR 4
COMMISSIIIO NO. 201552
STATE OF IOWA, DUBUQUE COUNTY) ss: -
On this /C, day of ---7 , 2004, before me, the undersigned, a Not Y Public in and
the State of ' Iowa, personally appeared /1/1,/f5e6A C. ' J4'OAf and
to me personally known, who, being by me duly sworn, did say that they
are the — and .CT Y , respectively, of Dubuque Racing
Association, Ltd., executing the within and foregoing instrument, that no seal has been procured by the
corporation; that said instrument was signed on behalf of the corporat' n by auto of its Board of
Dt and that 2c4-
C. „s l/ and �� �" -Q L c �'� as
� ' ec /. A)r and s , acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of the corporation, by it and by them voluntarily executed.
STATE OF IOWA, DUBUQUE COUNTY) ss:
otary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this j � �day of , 2004, before me, the undersigned, a Notary Public in and
for the State of Iowa, pe nally appeared Terrance M. Duggan and Jeanne F. Schneider, to me
personally known, who, being by me duly sworn, did say that they 'pare the Mayor and City Clerk,
respectively, of the City of Dubuque, Iowa, executing the within and foregoing instrument, that no seal
has been procured by the City; that said instrument was signed on behalf of the City by authority of the
City Council; and that Terrance M. Duggan and Jeanne F. Schneider, as Mayor and City Clerk,
acknowledged the execution of the foregoing instrument to be the Qlgatary act and deed of the City by
it and by them voluntarily executed. .,A :�:,��, ` .. •`,HESTERMAN
Y Y z 1,COVv' SiCN NO. 108258
S! N EXPIRES
Notary Public, State of Iowa
On this /6:, day of 1/t// , 2004, before me, the undersigned. a Notary Public in and
for the State of Iowa, personally appeared Victoria J. Richter, to me personally known, who, being by
me duly sworn, did say that she is a Vice President of American Trust & Savings Bank, executing the
within and foregoing instrument, that the seal which appears below id the seal of the corporation; that
said instrument was signed on behalf of the corporation by authority of its Board of Directors; and that
Victoria J. Richter, as Vice President, acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation, by it and by her voluntarily executed.
otary Public, State of Iowa
iowx
-'
COMM!SS!ON NO. 201552
MY 4IM SI N EXPIRES
otary Public, State of Iowa
Preparer Information:
Attorney Wayne A. Norman, Jr.
Suite 323
300 Main Street
Dubuque, IA 52001
Phone: (563) 552 -1042
Taxpayer Information:
Dubuque Racing Association, Ltd.
P.O. Box 3190
Dubuque, IA 52004 -3190
Attn: Jesus Aviles, President and CEO
Return Document To:
Attorney Wayne A. Norman, Jr.
Suite 323
300 Main Street
Dubuque, IA 52001
Phone: (563) 552 -1042
Grantors: N /A.
Legal description: See Page 2
FIRST AMENDMENT
TO
NEGATIVE PLEDGE AGREEMENT
Recorder's Cover Sheet
Grantees: N /A.
Document or instrument number of previously recorded documents: N /A.
Page 1 of 1
FIRST AMENDMENT
TO
NEGATIVE PLEDGE AGREEMENT
Re: A parcel of land containing 36.235 acres, more or less, located on Chaplain Schmitt Memorial
Island, in the City of Dubuque, Dubuque County, Iowa, and legally described as set forth on
Exhibit 1, attached hereto (the "Real Estate ").
This First Amendment to Negative Pledge Agreement ( "Amendment ") is effective December 1, 2010,
by the City of Dubuque, Iowa (the "City "), in favor of American Trust & Savings Bank, Dubuque, Iowa
(the "Bank ").
1. Recitals. On June 16, 2004, the parties entered into a Negative Pledge Agreement ( "Agreement ")
recorded June 16, 2004, as Instrument No. 10637 -04, records of Dubuque County, Iowa. The
parties now wish to amend the Agreement.
2. Section 1 is deleted and the following substituted therefore:
1. Recitals. Dubuque Racing Association, Ltd. , an Iowa non - profit corporation
( "Borrower ") has applied to the Bank for two additional loans, Loan 1 in the
amount of Five Million & 00 /100 Dollars ($5,000,000.00) and Loan 2 in the
amount of Fourteen Million Nine Hundred Eleven Thousand One Hundred
Seventy -Three & 02/100 Dollars ($14,911,173.02), payable according to the
terms of a Loan Agreement and Collateral Documents of dated June 16, 2004,
and the terms of a First Amendment to Loan Agreement dated October 1, 2009,
and the terms of a Second Amendment to Loan Agreement of even date executed
in favor of Bank by Borrower (the "Obligation "). The Bank agreed to lend such
funds to the Borrower subject to certain terms and conditions, one of which was
the execution of this Agreement. Therefore, it is agreed by the City as follows
below.
3. Ratification. Except as modified by this First Amendment, the terms of the Negative Pledge
Agreement are ratified and confirmed in their entirety.
[SIGNATURE PAGE FOLLOWS.]
wp60docs \American Trust & Savings Bank \Dubuque Racing Association \First Amendment. Negative Pledge Agreement 8.31.10
Page 1 of 2
Executed the date first written above.
KEVIN S. FIRNSTAHL
COMMISSION NO.745295
MY .2 COM �L! 0 EXPIRES
By:
Page 2 of 2
City of Dubuque
Roy uo1, Mayor
Jeanne F. Schneider, City Clerk
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this /1day of /!fij �j ` 2010, before me, the undersigned, a Notary Public in and for the
State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who,
being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of
Dubuque, Iowa, executing the within and foregoing instrument, that no seal has been procured by the
City; that said instrument was signed on behalf of the City by authority of the City Council; and that Roy
D. Buol and Jeanne F. Schneider, as Mayor and City Clerk, acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of the City, by it and by them voluntarily executed.
Notary ' b ic, State o Iowa
A poroei f trd containing S6.235 IFIOreS, Tore teal lOoated on dharflaln
Schmitt Merriortal Island es set (Olt on exhibit A attached hereto and
desolibed a's follOws:
Southwest Quarter Of Fractional Bootion 17 And pt of the
Seethe* Qgarter Of Fractlohal Section - 1E), 1119N, R3E;ath PM. In the.Crty
diDubuque, Dubuque County, 'Owe. ora particularly deScribad as follows:
Commencing as a point of raferanOe a the SOuthaest COmer
Southeast Quarter of Fraotional Section 18, T89N, R8E, 5th P.M, in
the Qity c1iutue, Duhuque 0ounty, Iowa;
Thence NO1 2643" W 338.68 feet along the westerly lino of said
Southeast - Cluarterto � pdint of intersection with the northerly right of
Exhibit 1
vvay line. of Oreyhound , Petit Road, told pint being the Point
begthning (ttits Is an assumed bearing.for thiA desOription only)!
Thence N.&7 011 W 52444 foot etiong ealtrtight Of way to a Writ
of curvature;
T t i ence - hoftiveStcrtt eiOng. a 1489'974fodtfacituatotire
cotica.Vanotthot*Onli $ alOng sod
right of Way to polotof tivigtorm
tiOnito 07 940.§:kat oOntintiing *ION, 'sattt ght Of way
to* gOInt-iir osoatont
Th ia
. 0 ( f VaS
Then9a N3T OVItyv 473 ;7 7, feetcontinuingAeng!eakkig),t of Way
ig Otrit cal.0010101
Thenoetatithweetaky. 24740 feet:along a42U.4 fObt tooli.itAtva.
OriPaie soulhPaSerlY (aid $77 416'z'V'si 30986 ft.) continuing
along eald right of wayto pointof non-tangency;
Thom* N28 Z9'11* W
Then 2808.
The. E
Otte N38:04 E
Thence 6187 331Q' E
Thenoet $84,450" E
Thenoi S71. 0108" E
Thence $80 "F
Thence s84 39'07° E
a I 7410 footracillit
70 ft) ( 1 01 itittufit
1014 feet
1 13347f004
874:081eat;
306,801eat
41814 feat;
132,74 feet,
79.09 it
, 33415 feet
374.89 feet;
Thence 8$2 0320"E 0.33feet kJ a point of non-tangent curvature
and point al ntersecifon Witn'the vve4terly right Of Way line of Admiral
Sheehy Drive;
Thence southwesterly 138.39 feet along a 305.05 foot radius curve
concave soUtheasterly(chord S13 57'08•W 137.21 ft_) along said right
of way to a point of tangency;
Thence SOO 5720" W 523.35 feet continuing along said right of way;
Thence 846 29'35"W 14.01 feet continuing along said right of way;
Therioe: Nor 88 W 9-10 feet along the nOrtharty rig
PMrOyhOptld Pr Rd to thO Point of baginhing.
0401.1.e.describiad paroefountains 3%235 4o10% n1010 Ott
i a : a u e i l i t i l t i e e s a r t i e n t a . o f r e d o r d and t of itOdit
A ppm! of liotto0t0.11V-0,00 attea 0,10te.of loss tOdatad 0141plairt
ohrtlitt Mattiorial Istand as set fortk un RxhilJit 0 $1144144 het o; and
dot 0111104
. „
the Uorth '.6 _east Quarter i4 10.4r0 pow'
fitioOt - h I
400; Ddu4ue piy $oWa, RPM aur fY
ode
C0110041011 OS t011t ofteAteace gt 1,41 Obrnor
.tYkitilea0t.c4u*offeatiootorpgiptiopI8,...TO9N.433.U,, P1/21-4
the OttY of th.)011004i Dutmi Cotinty;
ThOnoit S88 2,573.82' feat along the soUthetly tine of said
sotithost 010 of thtar.tieolion-wittfitie-weeterliriglitUf
WaY'tine of kah*YhOLind Park Roa said Writ tieing the putt Of:
Aftia 8 (fttt Is an Wsued 14440 for this
OrtOfctfOK
t` '170.4 feet:400A 40 UktrVOU0n048%
y :5541t06 1 7 4 .4g1t)tondritiing atong Said elgtit of Way
to-a point& tangericy;
Thence N41 'MIT 40.75 teet continuing along t aid right of way
to a p.ofht Of Ountature;
ThOn00 northeastarly 101 .55. feet along a:425 foot radius curve
concave soPthPastOdY (chord ma ontra 101.31 ft.) Goritinutnp
aignoaid way to a pelint a intersection with the westerly time
of DUOugue fieding AsSociation Lease A;
Thence N26 39'11HAN 2.02 feet continuing along said westerly line to
a point two (2) feet in perpendicular distance from the westerly right
of way fine Of Greyhound Park Road;
Thence southwesterly 102.32 feet atong a 427.14 foot radius curve
concave southeasterly (chord 849 0447 102.07 ft.) continuing
along a line parallel to said right of way;
111fgtoe 841 2W5TIN 499.75 feet
to a point of ourvatigi.):
thence souttwiadterly 176.i 8. feet aloriR a1468.9D foot rafts otlivO
ObridiNa sollietisteriy (ho o sat ammv 175.113 ft.) Oontin4in9
Montt ogkrcorallel iIte .pttfl Olinger*
Thaw* 619402"Y 1"; 1 ,f35 feetOntinkifOg Won - Parallel fine;
Thai* atio*Ortaffy foot 4110114.02$4X fOOt ottli4s outsfil
.. PeneevefnOtlie4010300*0014 , 406. 22tWatt)ttintsiutiou r4,
saidpveoi 4*.
ThOn00 .4 Oldog said Vataliel.litio;
Mao* $1241 35.04 foet Ito *te OortharlyOrtitirof Ogietint
0 '*ZO4netlt, 4hi3Vin OW the Mat . of auevay recorded as
:00404 in.*I-Offirti tit 'tfiti ptibtittile Cob*
ReoOtait
'alarms 8S0 007Nif20,00 feataforie the th W Iin O sat&
aaaatilerit
11000. 3212. (eetdg the soutbv0481o4 lira artaid
entrtigit t otnto intersston 4thThe itOt1iiia41y4altof Way 1160
Oaat
4 1 0 0 Aran g OM a tho
Thence northwesterly 72.26 foot, aking a 75,00 foot radius carve
=Pave wetteny (thaid 617 14'51)1V 69.50 ft.) along the westerly
tight of way. Una of Orayhound Park Road;
Them* f4a4 51'08"W 45.73 feet along said right of way lino:
Thence northwaSterly 225.70 feet, along a 252.57 100t radius 'curve
concave easterly (chord N914 218,30 ft.) continuing along said
right of way lin%
Thence N19 4523W 163.65 feet continuing along said right of way
line to the point of beginning.
The above described parcel contains 0.062 acres, more or less, and
is subject to easements of record and not of record.
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COPY
Prepared By: Wayne A. Norman, Jr., Norman, Gilloon, Wright & Hamel, P.C., 800 Town Clock Plaza,
P.O. Box 857, Dubuque, IA 52004 -0857
(563) 556 -6433
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE.
NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT
MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT
ONLY BY ANOTHER WRITTEN AGREEMENT.
Re: A parcel of land containing 43.73 acres, more or less,,located on
Chaplain Schmitt Memorial Island lying immediately north of the
Iowa - Wisconsin Bridge as set forth on the plat attached hereto
and made a part hereof and subject to a utility and roadway
easement located on and about the southerly property line, a
roadway easement located on or about the easterly property line,
and a roadway easement on and about the westerly property line
(the "Real Estate ").
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement ( "Agreement ") is effective
, 2004, by the City of Dubuque, Iowa (the "City"), in
favor of American Trust & Savings Bank, Dubuque, Iowa (the "Bank ").
1. Recitals. Dubuque Racing Association, Ltd., an Iowa non
corporation ('Borrower ") has applied to the Bank for a
Construction and Term Loan in _.. amount of Twenty-Two Million &
00 /100 Dollars (52%,000,000.0` . The Bank agreed to lend such
funds to the Borrower subject tc certain terms and conditions,
cne c= which was :..e execution _ this Agreement. Therefore, it
is agreed by the City as -olio'.. s below.
2. Negative Covenants. Tne City covenants and agrees that until the
full and final payment of :he Construction and Term Loans
Page 1 of 1
K trT ,
2004 JUN 16 , PM 3: 48
;CATHY FLYNN'HURLOW
COUNTY RECORDER
DUBUQUE CO. . IOWA FEES" Q D
SPACE ABOVE THIS LINE
FOR RECORDER
referred to above, unless the,prior written consent of the -Bank'
has first been obtained, the City will not:
2.1. Create, 'incur, assume, guarantee, endorse, becoJne liable
for or permit to exist any debt, liability or obligation
encumbering the Real Estate;
wp60docs \American Trust 6 Savings Bank \DRA \Negative,P1edge Agreement 5.13.04
2.2. Create, assume or permit to exist any purchase money
security interests, or any other security interests,
additional mortgages, pledges, encumbrances, or liens of
any kind upon the Real Estate.
3. Forbearance by the Bank not a Waiver. Any forbearance by the
Bank in exercising any right or remedy hereunder, or otherwise
afforded by applicable law, shall not be a waiver of, or preclude
the exercise of, any right or remedy.
4. Notices. All notices under this Agreement shall be in writing
and shall be deemed delivered if delivered in person, if sent by
certified mail (postage prepaid, return receipt requested),
telegraph or facsimile, as follows:
If to Bank:
American Trust & Savings Bank
895 Main Street
Post Office Box 938
Dubuque, IA 52004 -0938
Attn: Victoria J. Richter, Vice President
If to City: City of Dubuque
City Hall
50 West 13 Street
Dubuque, IA 52001
Ann.: Michael C. Van Milligen, City Manager
5 Applicable Law; Severability. This Agreement shall be subject to.,
construed and enforced in accordance with the laws of the State
of Iowa. If any provision cf this Agreement is held invalid
=de_ ap l cable Law, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the
invalid provision, and to this end, the crovisions hereof are
severable.
E. Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted
assigns ci the parties. The Ec_rowe_ has no right to assicn any
of its rights or obligations here;:nter without the prior written
consent of the .Sank.
7. Interpretation; Headings. Words and phrases herein shall be
interpreted and understood according to the context in which they
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are used. The headings in this Agreement are intended §olely for
convenience of reference, and shall be given no effect in the
construction or interpretation of this Agreement.
8. Entire Agreement; Counterparts. This Agreement, including any
Exhibits, all of which are incorporated by this reference, and
the documents executed and delivered pursuant hereto; constitute
the entire agreement between the parties, and may be amended only
by a writing signed by each party. All agreements, instruments
and documents referred to in this Agreement are by this reference
made a part of this Agreement for all purposes. This Agreement
may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together
shall constitute but one and the same instrument.
9.% Remedies Cumulative. The parties shall have, in addition to the
rights and remedies provided by this Agreement, all those allowed
by all applicable laws, all of which shall be in extension of and
not in limitation of those provided hereunder.
10. Waivers. Except as herein expressly provided, no waiver by
either party of any breach of this Agreement, or of any warranty
or representation hereunder, shall be deemed to be a waiver by
the same party of any other breach of any kind or nature (whether
preceding or succeeding the breach in question, and whether or
not of the same or similar nature).
10.1. No acceptance by a party of payment or performance after
any such breach shall be deemed to be a waiver of any
breach of this Agreement or of any representation or
warranty hereunder, whether or not the party knows of the
breach when it accepts such payment or performance.
10.2. No failure by a party to exercise any right it may have
under this Agreement or under law upon another party's
d and no delay in the ex=-r of that richt, shall
prevent it from exercising the right whenever the other
Carty continues to be in default. No such failure or delay
shah operate as a waiver of any default or as a
modification of the :provisions of this Agreement.
Arbitration. b- -- ^.t; parties Arbitration. All disputes s:. -' � - -�.. -- __ -_.. t..e
bintinc arbitration under the a ^ hers c :he American
Arbitration Association in accordance w its rules. The
arbitration shall bte held a: Dubuque, Iowa.
12. Attorney's Fees. if any action at law or in eauity, including.
arbitration and an action for declaratory relief and /or
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arbitration, is brought to enforce or interpret the pr of
this Agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs of litigation from the other
party. Such fees and costs of litigation may be set by the court
in the trial of such action or may be enforced in a separate
action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief which may be
awarded.
Executed the .date first written above.
By:
Bv:
STATE OF IOWA, DUBUQUE COUNTY) ss:
On thisi 1 ' day of /,. -.6 <e , 2004, before me, the undersigned, a Notary Public in and
for the State of Iowa, peris5na11y appeared Terrance M. Duggan and Jeanne F. Schneider, to me
personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk,
respectively, of the City of Dubuque, Iowa, executing the within and foregoing instrument, that no seal
has been procured by the City; that said instrument was signed on behalf of the City by authority of the
City Council; and that Terrance M. Duggan and Jeanne F. Schneider, as Mayor and City Clerk,
acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the City, by
it and by them voluntarily executed.
•
e A m
NO. 108258
MY J,vf, rS/ON , ; XPIRES
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City of Dubuque
Terrance M. Duggan, Mayor
Jeanne F. Schneider, City Clerk
Notary Public, State of Iowa