Eagle Window & Otto DA Amendment_1ORIGINAL
AMENDMENT TO DEVELOPMENT AGREEMENT
This Amendment to Development Agreement (the "Amendment") is made on or as
of the a Th day of December. 1999, by and among the City of Dubuque. Iowa, a
municipality established pursuant to the Code of Iowa and acting under authorization of
Chapter 403 thereof (the "City"), Eagle Window & Door, Inc., an Iowa corporation with
its principal place of business in Dubuque, Iowa (the "Employer") and Otto A, LLC a
Nevada limited liability company with its principal place of business in
L VelyAS , /Ueuadt (the "Developer").
WITNESSETH:
WHEREAS, the City, the Employer and Dubuque -Eagle, LLC (the "Former
Developer") are parties to a Development Agreement dated as of February 15, 1999 (the
"Original Agreement"), relating to the acquisition from the City of certain real property
located within the Kerper Boulevard Industrial Park Economic Development Urban
Renewal District of the City, upon which there shall be constructed a new manufacturing
facility that will thereafter be leased to the Employer; and
WHEREAS, the Former Developer has assigned its interest in the Original
Agreement, with the consent of the City and the Employer, to the Developer pursuant to
the terms and conditions of a Termination and Assignment Agreement dated as of
November 1, 1999, and the Developer has thereby succeeded to all of theirights, duties
and obligations of the "Developer" under the Original Agreement with respect to the
acquisition of the Property and the construction of the Minimum Improvements; and
WHEREAS, the City, Developer and Employer now desire to amend the Original
Agreement to more clearly set forth their agreements and understandings with respect to
the acquisition and development of the Property.
NOW, THEREFORE, in consideration of the premises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the others as
follows:
1
Section 1. Description of the Property. Exhibit B to the Original Agreement,
setting forth the legal description of the Property to be conveyed to the Developer, is
hereby deleted in its entirety from the Original Agreement, and the attached Exhibit B
shall be and is hereby inserted as a new Exhibit B in lieu thereof.
Section 2. Closing Date. The provisions of Section 2.1 of the Original
Agreement establishing a Closing Date of June 30, 1999, and all references to the Closing
Date otherwise contained in the Original Agreement, are hereby amended to provide that
the Closing Date shall be December 10, 1999.
Section 3. Conditions Precedent to Conveyance of Property. The provisions of
Section 2.4 of the Original Agreement, providing for the satisfaction of certain conditions
precedent on or before the Closing Date, are hereby deleted in their entirety from the
Original Agreement and the following provision shall be inserted as a new Section 2.4 in
lieu thereof:
2.4 Conditions Precedent to Conveyance of Property. City's obligation
to convey title and possession of Property to Developer, and the obligation of the
City and the Developer to close on the purchase of the Property pursuant to the
terms of this Agreement as well as the obligations of Employer hereunder, shall be
subject to satisfaction of the following conditions precedent on Closing Date:
(1) Developer shall be in compliance with all the material terms and
provisions of this Agreement;
(2) Execution of a lease agreement between Developer and Employer
pursuant to Section 5.1 of this Agreement;
(3)
Developer shall have furnished City with evidence, in a form
satisfactory to City (such as a letter of commitment from a bank or
other lending institution), that Developer has firm commitments
(subject to customary lending conditions) for construction financing
for Minimum Improvements (as defined herein) in an amount
sufficient, together with equity commitments, to complete Minimum
Improvements in conformance with Construction Plans (as defined
herein), or City shall have received such other evidence of
Developer's financial ability as in the reasonable judgment of City is
required;
(4) Execution of an Assessment Agreement (as defined herein) by the
City Assessor and Developer (and, if requested by City, including
(8)
(9)
the consent of the Developer's lender thereto) pursuant to Section 5.2
and Exhibit F of this Agreement;
Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D;
That the Developer is satisfied with the results of its inspections of
the Property that are permitted by the terms of Section 2.3 of this
Agreement;
That the City is prepared to and will fund the Acquisition Grant at
the closing and the Economic Development Grant to the Developer,
subject to the conditions in Section 4 of this Agreement;
Execution of the Advance of Construction Loan Proceeds Agreement
described m Section 4.3 of this Agreement by the City, the
Developer and Dubuque Bank and Trust Company (Exhibit J
hereto);
Execution of each of the four (4) loan agreements referred to in
Section 4.7 of this Agreement by all of the parties thereto (Exhibits
K, L, M and N hereto); and
(10) Execution of the Tax Revenue Shortfall Agreement described in
Section 5.11 of this Agreement by the Developer, thi Employer,
Dubuque Bank and Trust Company and American Architectural
Products Corporation (Exhibit 0 hereto).
Section 4. Economic Development Grant. The provisions of Section 4.3 of the
Original Agreement, whereby the City agrees to make an Economic Development Grant
to the Developer, are hereby deleted in their entirety from the Original Agreement, and
the following provision shall be and is hereby inserted as a new Section 4.3 in lieu
thereof:
4.3 Economic Development Grant. For and in consideration of
Developer's and Employer's commitments as provided herein, City
agrees (subject to the conditions set forth in this Article) to make
Economic Development Grant payments to Developer pursuant to,
and in accordance with, the temis of an Advance of Construction
Loan Proceeds Agreement in substantially the foul' attached hereto
as Exhibit J and by this reference made a part hereof. The Economic
3
Development Grant payments shall be in the total amount not to
exceed $2,642,597.24 (or such other amount determined as provided
in Section 4.4 hereof) and shall be payable solely and only from the
proceeds of the sale of urban renewal tax increment revenue bonds
or notes by City as described in Section 4.4 hereof, and not from any
other source.
Section 5. City Loans to Employer. The provisions of Section 4.7 of the
Original Agreement, whereby the City agrees to provide certain financial incentives to
Employer for the purpose of funding the equipping of the Minimum Improvements on the
Property, are hereby deleted in their entirety from the Original Agreement, and the
following provision shall be and is hereby inserted as a new Section 4.7 in lieu thereof:
4.7 City Loans to Employer. City shall use its best efforts to make the
following financial incentives available to Employer for the purpose
of funding the equipping of Minium Improvements on Property:
(1) Community Development Block Grant Loan of
$500,000 for ten years at 4.5% interest, subject to and
in accordance with the terms of an Economic
Development Loan Program Loan Agreement No.
CDBG #1-99 in substantially the form attached hereto
as Exhibit K and by this reference made a part hereof
(2) M108 Loan Guarantee Assistance of $2,030,000,
subject to and in accordance with the terms of a M108
Obligor Loan Agreement (M108) in substantially the
foam attached hereto as Exhibit L and by this reference
made a part hereof.
(3)
Loan of $104,000 for five years at 4.5% interest from
the City's portion of the local EDA Revolving Loan
Fund administered by ECIA Business Growth, Inc.,
subject to and in accordance with the terms of a
EDA/RLF Revolving Fund Loan Agreement in
substantially the form attached hereto as Exhibit M and
by this reference made a part hereof.
(4) Forgivable loan of $692,000 subject to City receiving a
Public Infrastructure Assistance Program grant from
the Iowa Department of Economic Development in the
4
amount of $1,262,000 for costs related to the
redevelopment of the Kerper Boulevard Industrial
Park, and further subject to and in accordance with the
terms of a Public Infrastructure Assistance Program
Loan Agreement in substantially the form attached
hereto as Exhibit N and by this reference made a part
hereof.
All such financing and the terms of the foregoing loan agreements shall be
mutually acceptable to City and Employer but subject in all respects to
compliance with the applicable loan or grant program requirements and the
covenants and conditions set forth in this Agreement and with State law,
including the holding of public hearings thereof, and may contain terms and
covenants that are different from those contained in this Agreement. All
such loan agreements shall represent separate obligations of the parties
thereto and shall be construed and enforced as provided therein.
Section 6. Guaranty Regarding Notes. The provisions of Section 5.11 of the
Original Agreement, whereby the Developer agrees to provide a guaranty with respect to
collection of tax increment revenues sufficient in amount to pay debt service on the
Notes, are hereby deleted in their entirety from the Original Agreement, and the following
provision shall be and is hereby inserted as a new Section 5.11 in lieu thereof:
5.11 Guaranty Regarding Notes. The parties reasonably expect that the
annual tax increment revenues to be derived from the Property and
the Minimum Improvements in any year will exceed the minimum
amount needed to pay when due all principal and interest of the
Notes maturing and coming due in that year. Developer agrees that
if for any reason the tax increment revenues collected by City in
respect of the Property and the Minimum Improvements are less than
the amount necessary to pay all of the principal and interest on the
Notes coming due on the next payment date, then Developer shall
pay to the City, promptly upon City's written demand therefor, the
difference between (a) the tax increment revenues actually collected
by City and available for repayment of the Notes and (b) the amount
of principal and interest then due on the Notes, all in accordance
with and pursuant to the terms of a Tax Revenue Shortfall
Agreement in substantially the form attached hereto as Exhibit 0 and
by this reference made a part hereof.
5
Section 7. Notices and Demands. The provisions of Section 8.2(2) of the
Original Agreement, whereby there is set forth the address of the Developer for purposes
of the receipt of any notice or written request by one party to another, are hereby deleted
in their entirety from the Original Agreement, and the following provision shall be and is
hereby inserted as a new Section 8.2(2) in lieu thereof:
(2) In the case of Developer, be addressed to:
Otto A, LLC
c/o Mr. Herman Ahlers
8000 West Spring Mountain Road
Las Vegas, NV 89117
Section 8. Unavoidable Delays. The provisions of Section 8.4 of the Original
Agreement, whereby the time frames for the performance of certain obligations under the
Original Agreement shall be suspended, are hereby deleted in their entirety from the
Original Agreement, and the following provision shall be and is hereby inserted as a new
Section 8.4 in lieu thereof:
Section 8.4. Unavoidable Delays. The time frames for the
performance of all obligations under this Agreement shall be suspended by
any delays caused by acts of God including, but not limited to, extreme
weather conditions and/or other natural causes, casualty, labor problems
(including but not limited to strikes, walk -outs, picketings, boycotts and
shutdowns), governmental restrictions upon the availabilityfor use of labor
or materials, litigation commenced by third parties, or insurrection,
embargos, or delays in providing necessary consents or approvals. The
time for perfolinance of such obligations shall be extended only for the
period of such delay.
Section 9. Miscellaneous.
(a) Except as otherwise expressly provided herein, or unless the context
otherwise requires, all terms used herein have the meanings assigned to
them in the Original Agreement.
(b) This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, and all such counterparts shall together
constitute but one and the same document.
(c) Except as amended herein, all of the other terms and conditions of the
6
Original Agreement are in all respects ratified, confirmed and approved.
IN WITNESS WHEREOF, City has caused this Amendment to be duly executed
in its name and behalf by its Mayor and attested by its City Clerk, Employer has caused
this Amendment to be duly executed in its name and behalf by its President and attested
by its Secretary and Developer has caused this Amendment to be duly executed in its
name and behalf by its Manager, on or as of the day first above written.
CITY OF DUBUQUE, IOWA
/r,
By: T, rrance M. Duggan, . yor Mary . Davis, City Clerk
7
i
EAGLE WINDOW & DOOR, INC.
B
OTTO A, LLC
A Nevada limited liability company
erman Ahlers, M ager
DCORNELL\201898\1\10422050
C:\juliemaiMmendment.doc
8
Secretary