MINIMUM ASSESSMENT AGREEMENT
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EXHIBIT
10.63
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THIS
MINIMUM ASSESSMENT AGREEMENT, dated as of October 1, 2007, by and among the CITY
OF DUBUQUE, IOWA, (the "City"), XXXXXXX XX, LLC, a Delaware limited liability
company (the "Company"), and the CITY ASSESSOR of the City of Dubuque, Iowa (the
"Assessor").
WITNESSETH:
WHEREAS,
the City and Company have entered into an Amended and Restated Port of Dubuque
Public Parking Facility Development Agreement dated as of October 1, 2007 (the
Development Agreement) regarding certain real property located in the City, the
legal description of which is contained in Exhibit A attached hereto (the
"Development Property"); and
WHEREAS,
it is contemplated that the Company will undertake the construction of a new
casino facility (the "Casino") on the Development Property, as provided in the
Development Agreement; and
WHEREAS,
pursuant to Section 403.6 of the Code of Iowa, as amended, the City and the
Company desire to establish a minimum actual value for the Development Agreement
and the new Casino improvements to be constructed thereon by the Company
pursuant to the Development Agreement (the "Minimum Improvements");
and
WHEREAS,
the City and the Assessor have reviewed the preliminary plans and specifications
for the Minimum Improvements which it is contemplated will be erected;
and
WHEREAS,
that City has authorized the issuance of $23,025,000.00 Urban Renewal Tax
Increment Revenue Bonds, Taxable Series 2007 (the "Bonds"), the proceeds of
which will be used to construct a parking facility on the property adjacent to
the Development Property, the principal of and interest on which Bonds are
expected to be paid from the real property taxes paid by the Company with
respect to the Development Property and the Minimum Improvements located
thereon.
NOW,
THEREFORE, the parties to this Minimum Assessment Agreement, in consideration of
the promises, covenants and agreements made by each other, do hereby agree as
follows:
1. Upon
substantial completion of construction of the above-referenced Minimum
Improvements, but no later than January 1, 2009, the minimum actual taxable
value which shall be fixed for assessment purposes for the Development Property
and the Minimum Improvements to be constructed thereon shall be not less than
Fifty-Seven Million Eight Hundred Ninety Thousand Six Hundred Forty-Nine and
no/100 Dollars ($57,890,649.00) (hereafter referred to as the "Minimum Actual
Value") until termination of this Minimum Assessment Agreement on the date that
all of the Bonds shall have been paid in full or provision for their payment
shall have been made (including without limitation the defeasance thereof) (the
"Termination Date"). The Minimum Actual Value shall be maintained
during such period regardless of (a) any failure to complete the Minimum
Improvements (b) destruction of all or any portion of the Minimum Improvements
(c) diminution in value of the Development Property or the Minimum Improvements
or (d) any other circumstance, whether known or unknown and whether now existing
or hereafter occurring.
2. The
Company shall pay, when due, all real property taxes and assessments payable
with respect to all and any parts of the Development Property and the Minimum
Improvements pursuant to the provisions of this Minimum Assessment Agreement and
the Development Agreement. Such tax payments shall be made without
regard to any loss, complete or partial, to the Development Property or the
Minimum Improvements, any interruption in, or discontinuance of, the use,
occupancy, ownership or operation of the Development Property or the Minimum
Improvements by Company or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the
Development Property or the Minimum Improvements.
3. In
the event that for any reason the Minimum Actual Value is not realized or
incremental taxes collected in respect of the Development Property and the
Minimum Improvements located thereon are insufficient to pay the scheduled
payments of principal and interest on the Bonds, the Company agrees to pay as
taxes, or, if and to the extent necessary, to make other supplementary payments,
in an aggregate amount necessary to pay when due the principal of and interest
on the Bonds, including any amounts due as a result of scheduled
sinking fund payments, in each case promptly upon demand by the
City. The parties intend that the annual amount of incremental taxes
to be so collected shall be not less than the annual requirement for scheduled
principal and interest on the Bonds.
4. The
Company agrees that its obligations to make the tax payments required hereby, to
pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Minimum Assessment Agreement and in the Development
Agreement shall be absolute and unconditional general obligations of the Company
(not limited to the statutory remedies for unpaid taxes) and that the Company
shall not be entitled to any abatement or diminution thereof, or set off
therefrom, nor to any termination of this Minimum Assessment Agreement for any
reason whatsoever. The Company agrees not to request or accept any
abatement, settlement or other diminution of taxes resulting from the
application of prevailing tax rates to the Minimum Actual Value.
5. The
Company agrees that prior to the Termination Date it will not:
(a) seek
administrative review or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of property
contained as a part of the Development Property or the Minimum Improvements
determined by any tax official to be applicable to the Development Property, the
Minimum Improvements or the Company or raise the inapplicability or
constitutionality of any such tax statute as a defense in any proceedings,
including delinquent tax proceedings; or
(b) seek
any tax deferral or abatement, either presently or prospectively authorized
under Iowa Code Chapter 403 or 404, or any other State or federal law, of the
taxation of real property including improvements and fixtures thereon, contained
in the Development Property or the Minimum Improvements between the date of
execution of this Agreement and the Termination Date; or
(c) request
the Assessor to reduce the Minimum Actual Value; or
(d) appeal
to the board of review of the County, State or to the Director of Revenue of the
State to reduce the Minimum Actual Value; or
(e) cause
a reduction in the actual value or the Minimum Actual Value through any other
proceedings.
6. The
Company further agrees:
(a) to
construct the Casino on the Development Property in accordance with the plans
approved by the Company and the City, and to operate and maintain the Casino for
so long as it is the owner such facility;
(b) to
maintain all required licenses with respect to the Casino, including its license
from the State of Iowa to operate the Casino as a gaming facility;
(c) to
purchase and maintain business interruption insurance with one or more insurance
companies qualified to do business in the State of Iowa in an amount determined
by management of the Company to be sufficient in accordance with industry
practice given the nature of its business but including in all events the
Company's obligation to make the tax and other payments described herein during
such business interruption. That portion of the proceeds of such
insurance necessary to pay the debt service due on the Bonds shall be delivered
to the City by the Company in a timely manner so as to ensure such
payment;
(d) to
purchase and maintain property loss and casualty insurance with one or more
insurance companies qualified to do business in the State of Iowa in an amount
not less than the replacement value of the Casino, which proceeds from such
insurance, if received by the Company and not applied or intended to be applied
toward reconstruction or replacement of the Casino, shall be delivered to the
City in an amount necessary, if any, to satisfy the remaining debt service then
due and owing under the Bonds; and
(e)
that any agreement for the sale of all or substantially all of the assets of the
Company shall include a covenant by the subsequent purchaser to comply with all
of the Company’s obligations under this Minimum Assessment Agreement from and
after the date of such sale.
Any
breach by the Company of the covenants set forth in (a) through (e) above shall
constitute an Event of Default under the resolution of the City authorizing the
issuance of the Bonds.
7. This
Minimum Assessment Agreement shall be promptly recorded by the Company with the
Recorder of Dubuque County, Iowa. Such filing shall constitute notice
to any subsequent encumbrancer or purchaser of the Development Property (or part
thereof), whether voluntary or involuntary, and this Minimum Assessment
Agreement shall be binding and enforceable in its entirety against any such
subsequent purchaser or encumbrancer, including the holder of any
mortgage. The Company shall pay all costs of recording.
8. Neither
the preambles nor provisions of this Minimum Assessment Agreement are intended
to, or shall be construed as, modifying the terms of the Development Agreement
between the City and the Company.
9. This
Minimum Assessment Agreement shall not be assignable by the Company without the
consent of the City and shall not be assignable by the City without the consent
of the Company. Notwithstanding any provision to the contrary in this
Minimum Assessment Agreement, in the event that the Company provides prior
notice to the City of a proposed assignment, accompanied by a report from
McGladrey & Xxxxxx, LLP or another nationally recognized firm of independent
certified public accountants mutually agreed upon by the City and the Company
(in either event, which is not currently engaged by the Company, the proposed
assignee or the City), to the effect that in its opinion, based upon the firm’s
analysis of the most recent financial statements of the proposed assignee and
such other information as the firm considers appropriate, the proposed
assignment will not materially adversely affect the timely repayment of all
outstanding principal and interest on the Bonds, then the City’s consent to the
assignment shall not be withheld or delayed, and upon the assumption of this
Minimum Assessment Agreement by the assignee, the Company shall be fully
released from its obligations under this Minimum Assessment
Agreement. This Minimum Assessment Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
10. Nothing
herein shall be deemed to waive the Company's rights under Iowa Code Section
403.6(19) to contest that portion of any actual value assignment made by the
Assessor in excess of the Minimum Actual Value established herein. In
no event, however, shall the Company seek to reduce the actual value to an
amount below the Minimum Actual Value established herein during the term of this
Agreement. This Minimum Assessment Agreement may be amended or
modified and any of its terms, covenants, representations, warranties or
conditions waived, only by a written instrument executed by the parties hereto,
or in the case of a waiver, by the party waiving compliance.
11. If
any term, condition or provision of this Minimum Assessment Agreement is for any
reason held to be illegal, invalid or inoperable, such illegality, invalidity or
inoperability shall not affect the remainder hereof, which shall at the time be
construed and enforced as if such illegal or invalid or inoperable portion were
not contained herein.
12. The
Minimum Actual Value herein established shall be of no further force and effect
and this Minimum Assessment Agreement shall terminate on the Termination
Date.
THE CITY
OF DUBUQUE, IOWA
By: ______________________________
Xxx Xxxx,
Mayor
ATTEST:
By: _________________________
Xxxxxx
Xxxxxxxxx, City Clerk
STATE OF
IOWA )
) SS
COUNTY OF
DUBUQUE )
On this
_______ day of _________________, 2007, before me a Notary Public in and for
said County, personally appeared Xxx Xxxx and Xxxxxx Xxxxxxxxx to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk,
respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the
foregoing instrument is the seal of said Municipal Corporation, and that said
instrument was signed and sealed on behalf of said Municipal Corporation by
authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal
Corporation by it voluntarily executed.
__________________________________
Notary
Public in and for the State of Iowa
XXXXXXX
XX, LLC
By: ____________________________
Title:
STATE OF
IOWA )
) SS
COUNTY OF
DUBUQUE )
On this
_________ day of ___________________________, 2007, before me a Notary Public in
and for the State of Iowa, personally appeared ________________________, to me
personally known, who being duly sworn, did say that he is the _________________
of XXXXXXX XX, LLC, a Delaware limited liability company, who executed the
foregoing instrument; and that _____________________________ acknowledged the
execution of said instrument to be his voluntary act and deed, voluntarily
executed.
___________________________________
Notary
Public in and for said County and State
CONSENT
TO MINIMUM ASSESSMENT AGREEMENT
The undersigned, being the holder of
one or more mortgages granted prior to the date of the Minimum Assessment
Agreement to which this Consent is attached, said mortgage(s) encumbering a
portion of the Development Property described therein, hereby consents to the
execution and recording of the foregoing Minimum Assessment Agreement and agrees
to be bound thereby.
XXXXX FARGO FOOTHILL,
INC.
By: ___________________________________
Name
____________________________________
Title
STATE OF
____________ )
) ss
COUNTY OF
_____________ )
On this _________ day of
__________________, 2007, before me, the undersigned a Notary Public in and for
said County and State, personally appeared _____________________, to me
personally known, who being by me duly sworn, did say that the person is the
__________________________ of Xxxxx Fargo Foothill, Inc., a California
corporation, executing the within and foregoing instrument; that said instrument
was signed on behalf of said corporation by authority of the corporation; and
that the said ______________________ as such officer acknowledged the execution
of said instrument to be the voluntary act and deed of said corporation by it
voluntarily executed.
_____________________________________
Notary Public
CONSENT
TO MINIMUM ASSESSMENT AGREEMENT
The undersigned, being the holder of
one or more mortgages granted prior to the date of the Minimum Assessment
Agreement to which this Consent is attached, said mortgage(s) encumbering a
portion of the Development Property described therein, hereby consents to the
execution and recording of the foregoing Minimum Assessment Agreement and agrees
to be bound thereby.
U.S. BANK NATIONAL
ASSOCIATION,
as trustee
By: ___________________________________
Name
____________________________________
Title
STATE OF
____________ )
) ss
COUNTY OF
_____________ )
On this _________ day of
__________________, 2007, before me, the undersigned a Notary Public in and for
said County and State, personally appeared _____________________, to me
personally known, who being by me duly sworn, did say that the person is the
__________________________ of U.S. Bank National Association, a national banking
association, executing the within and foregoing instrument; that said instrument
was signed on behalf of said banking association by authority of said banking
association; and that the said ______________________ as such officer
acknowledged the execution of said instrument to be the voluntary act and deed
of said banking association by it voluntarily executed.
_____________________________________
Notary Public
CERTIFICATION
OF ASSESSOR
The
undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon
which the Minimum Improvements are to be constructed, and being of the opinion
that the minimum market value contained in the foregoing Minimum Assessment
Agreement appears reasonable, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the
property described in the foregoing Minimum Assessment Agreement, and in
accordance with the Minimum Assessment Agreement, certifies that the actual
value assigned to such land and improvements shall not be less than Fifty-Seven
Million Eight Hundred Ninety Thousand Six Hundred Forty-Nine and no/100 Dollars
($57,890,649.00) until termination of this Minimum Assessment Agreement pursuant
to the terms hereof.
____________________________________
City
Assessor for the City of Dubuque, Iowa
______________________________
Date
STATE OF
IOWA )
) SS
COUNTY OF
DUBUQUE )
Subscribed
and sworn to before me by Xxxxxxx Xxxxxxxx, City Assessor for the City of
Dubuque, Iowa.
_________________________________
Notary
Public in and for the State of Iowa
_________________________________
Date
EXHIBIT
A
DEVELOPMENT
PROPERTY
The Development Property is described
as consisting of all that certain parcel or parcels of land located in the City
of Dubuque, State of Iowa, more particularly described as follows:
Lot 1 of Xxxxx Company's 1st
Addition,
Lot 3 of Xxxxx Company 2nd Addition,
and
Xxxx 0, 0, 0 xxx 0 xx Xxxxx Company 3rd
Addition
