HomeMy WebLinkAboutBCS Properties LLC - Assignment of Dev Agmnt - 10.7.2024 COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT
Recorder's Cover Sheet
Preparer Information:
Holly A. Stocker, Winthrop & Weinstine, P.A., 225 S. Sixth Street, Suite 3500, Minneapolis,
Minnesota 55402
Return Document To:
Mandi Becker, Lincoln Savings Bank, 302 Main Street, Cedar Falls, Iowa 50613
Assignor:
BCS Properties, L.L.C., an Iowa limited liability company
GAC Real Estate, L.L.C., an Iowa limited liability company
Lender:
Lincoln Savings Bank, an Iowa state banking corporation
Legal Description:
Parcel 8913-33-351-007 (BCS): UNPLATTED WATERLOO WEST THAT PART OF SW 1/4
SW 1/4 SEC 33 T 89 R 13 LYING SELY AND ELY OF US HWY 63 EXC S 50 FT
CONVEYED TO CITY OF WATERLOO FOR STREETS & EXC THAT PART DEEDED TO
CITY OF WATERLOO B 557 P 80
Parcel 8913-33-376-012 (GAC): A PARCEL OF LAND IN THE SE QTR OF THE SW QTR
OF SEC 33 T 89 R 13 DESC AS FOL: BEG AT THE INTERSECTION OF THE W LINE OF
SAID SE SW WITH THE SELY RIGHT OF WAY LINE OF US HWY 63 TH S 89 DEG 50
MIN 15 SEC E 432.65 FT TH S 1 DEG 40 MIN 30 SEC E 986.4 FT TO A PT ON THEN LINE
OF RIDGEWAY AV ETH S 90 DEG 00 MIN W ALONG THE N LINE OF RIDGEWAY AVE
TO THEW LINE OF SAID SE SW TH N 0 DEG 43 MIN 15 SEC W 985.97 FT TO PT OF
BEG.
Previously filed document: Document ID 009586860009, recorded July 3, 2019 as File No.
2020-00000273, Black Hawk County, Iowa
COLLATERAL ASSIGNMENT OF
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS COLLATERAL ASSIGNMENT OF AMENDED AND RESTATED DEVELOPMENT
AGREEMENT (this "Assignment") is made and entered into as of [QG4- .7 1, 2024, by and
among BCS PROPERTIES, L.L.C., an Iowa limited liability company ("BCS") and GAC
REAL ESTATE, L.L.C., an Iowa limited liability company ("GAC" and together with BCS,
collectively, the "Assignor"), THE CITY OF WATERLOO, IOWA, a municipal corporation
(the "City"), and LINCOLN SAVINGS BANK, an Iowa state-chartered banking corporation
("Lender").
Recitals
WHEREAS, Lender has made loan to Assignor in the original principal amount of
$4,225,000 (the "Loan") for the purpose of providing financing for the acquisition and
development of certain property located at 1850 W Ridgeway Ave., in Waterloo, Iowa (the
"Project"); and
WHEREAS, obligation of Assignor to repay the Loan is evidenced by that certain
Promissory Note dated on or about even date herewith (the "Note"), in the original principal
amount of$4,225,000, executed by Assignor and payable to Lender;
WHEREAS,the Note is secured by, among other things,that certain Mortgage dated as of
October 8, 2021 by Borrower in favor of Lender, and recorded on October 8, 2021 as Instrument
Number 202200007760 in Black Hawk County, Iowa, as modified by the Modification of
Mortgage dated on or about even date herewith (collectively, the "Mortgage"), executed by
Assignor, in favor of Lender, encumbering the Project; and
WHEREAS,the City and Assignor, among others,have entered into that certain Amended
and Restated Development Agreement dated as of October 8, 2018 (the "Development
Agreement"), pursuant to which the City has agreed to provide certain tax increment financing in
connection with the Project; and
WHEREAS, Lender has required, as an express condition to making the Loan, that
Assignor assign its rights under the Development Agreement to Lender to secure the obligations
of Assignor under the Note and the Loan Agreement.
NOW, THEREFORE, in consideration of the recitals set forth above and incorporated
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor, Lender and the City hereby agree as follows:
1. Capitalized Terms. Capitalized terms used herein but not otherwise defined herein
shall have the meaning set forth in the Loan Agreement.
2. Assignment. Assignor hereby assigns to Lender all of its right, title and interest in
and to the Development Agreement, together with all documents and agreements attached as
exhibits thereto, and all amendments, addenda and modifications thereof, whether made now or
hereafter, to secure the obligations of Assignor under the Note. Lender acknowledges that this
Assignment is subject to the terms and conditions of the Development Agreement. Nothing
contained in this Assignment shall constitute Lender's assumption of any duties of Assignor,
unless and until Lender elects to do so in writing to the City, as required by the Development
Agreement, nor shall it constitute a release of Assignor from its obligations, under the
Development Agreement.
3. Assignor Representations and Warranties.Assignor hereby represents and warrants
to Lender that there have been no prior assignments of its rights under the Development
Agreement, that the Development Agreement is a valid and enforceable agreement, that Assignor
is not, and to the best of Assignor's knowledge, the City is not, in default thereunder and that all
covenants, conditions and agreements have been performed as required therein, except those not
to be performed until after the date hereof. Without the Lender's prior written consent, Assignor
agrees not to sell, assign, pledge, mortgage or otherwise transfer or encumber its interest in the
Development Agreement as long as this Assignment is in effect. Nothing herein shall limit any
City consent requirements to the foregoing under the Development Agreement.
4. Present Assignment. This Assignment shall constitute a perfected, absolute and
present assignment.
5. Attorney-in-Fact. Upon the occurrence of a default or event of default under the
Note and the continuance beyond any applicable cure period (a"Default"), without affecting any
of Lender's rights or remedies against Assignor under any other Loan Document, Assignor shall
be deemed to have irrevocably appointed Lender as Assignor's attorney-in-fact to exercise any or
all of Assignor's rights in, to and under the Development Agreement and to give appropriate
receipts, releases and satisfactions on behalf of Assignor in connection with the performance by
any party to the Development Agreement and to do any or all other acts in Assignor's name or in
Lender's own name that Assignor could do under the Development Agreement with the same force
and effect as if this Assignment had not been made. In addition,upon a Default, Lender shall have
the right to exercise and enforce any and all rights and remedies available after a default to a
secured party under the Uniform Commercial Code as adopted in the State of Iowa with respect to
any payments assigned hereunder. Assignor hereby authorizes Lender to deliver a copy of this
Assignment to any other party to the Development Agreement to verify the rights granted to
Lender hereunder.
6. City Consent. The City hereby consents and agrees to the terms and conditions of
this Assignment. The City further represents and warrants to Lender that the Development
Agreement is a valid agreement enforceable in accordance with its terms, that the City is not in
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default under the Development Agreement and that all of the City's covenants, conditions and
agreements have been performed as required therein, except those not to be performed until after
the date thereof. To the knowledge of the City, (a) Assignor is not in default under the
Development Agreement, and (b) all of Assignor's covenants, conditions and agreements have
been performed as required therein.
7. Direction of Payments. The City hereby acknowledges and agrees that all payments
due to Borrower under the Development Agreement shall be paid to Lender at the address set forth
in Section 13 until such time as Lender notifies the City that the Loan has been paid in full.
8. Consent to Mortgage. Notwithstanding anything to the contrary contained in the
Development Agreement, the City consents to the Mortgage.
9. City Notice. The City agrees to provide Lender with copies of any notice of default
given under the Development Agreement, and that Lender shall have the right, but not the
obligation,to cure such default within the time period set forth in the Development Agreement.
10. No Amendment. Assignor hereby agrees that no material change or amendment
shall be made to terms of the Development Agreement without the prior written consent of Lender,
which consent shall not be unreasonably withheld or delayed.
11. No Waiver. This Assignment can be waived, modified, amended, terminated or
discharged only explicitly in a writing signed by the parties hereto. A waiver by a party hereto
shall be effective only in the specific instance and for the specific purpose given. Mere delay or
failure to act shall not preclude the exercise or enforcement of any of a party's rights or remedies
hereunder. All rights and remedies of a party shall be cumulative and shall be exercised singularly
or concurrently, at the enforcing party's option, and any exercise or enforcement of any one such
right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.
12. Continuing Obligations. No provision of this Assignment shall be deemed or
construed to alter, amend or modify, in any way, the rights and obligations of the City contained
in the Development Agreement. Except as expressly contemplated in Section 4, above, upon a
Default, no provision of this Assignment shall be deemed or construed to alter, amend or modify,
in any way,the rights and obligations of Assignor contained in the Development Agreement.
13. Notice. Any notice, request, demand or other communication hereunder shall be
deemed duly given if delivered or postage prepaid, certified or registered, addressed to the party
as set forth below:
If to the City:
City of Waterloo
715 Mulberry Street
Waterloo, Iowa 50703
Attention: Mayor
If to Assignor:
3
BCS Properties, L.L.C.
GAC Real Estate, L.L.C.
2202 College Street
Cedar Falls, Iowa 50613
Attention: Brent Dahlstrom
If to Lender:
Lincoln Savings Bank
302 Main Street
Cedar Falls, Iowa 50613
Attention: Mandi Becker
14. This Assignment shall be governed by and construed in accordance with the laws
of the State of Iowa.
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29524917v4
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BCS PROPERTIES,L.L.C., an Iowa
limited liability company
By:
George Cooley
Its: Manager
STATE OF )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2024,
by George Cooley,the Manager of BCS Properties,L.L.C., an Iowa limited liability company, for
and on behalf of said limited liability company.
Notary Public in the State of
My commission expires:
Signature Page to Collateral Assignment of Amended and Restated Development Agreement(BCS Properties,L.L.C.)
GAC REAL ESTATE,L.L.C., an Iowa
limited liability company
By:
George Cooley
Its: Managing Member
STATE OF )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2024,
by George Cooley, the Managing Member of GAC Real Estate, L.L.C., an Iowa limited liability
company, for and on behalf of said limited liability company.
Notary Public in the State of
My commission expires:
Signature Page to Collateral Assignment of Amended and Restated Development Agreement(BCS Properties,L.L.C.)
CITY OF WATERLOO,IOWA
ATTEST:
By: By: l_ '
Kelley Felchle Quentin M. Hart
City Clerk Mayor
STATE OF IOWA )
) ss
COUNTY OF BLACK HAWK )
On this y of bek ✓, 2024, before me,the undersigned, a Notary Public in the State
of Iowa,personally appeared Quentin M. Hart and Leann Even,to me personally known,and who,
being by me duly sworn did state that they are the Mayor and City Clerk respectively, of the City
of Waterloo,Iowa, a municipal corporation;that the seal affixed to the foregoing instruction is the
corporate seal of the corporation;that the instrument was signed on behalf of the City of Waterloo,
Iowa, by authority of its City Council, and that Quentin M. Hart and Leann Even acknowledged
the execution of the instrument to be the voluntary act and deed of the City of Waterloo, Iowa,by
it and by them voluntarily executed.
APR'^�s BRITNI C PERKINS 41 4.
COMMISSION NO.845529 dakir
pub the Stat of Iowa
*Win,* MY COMMISSION EXPIRES
IOWA JANUARY 27,2026 CO e 1 I expires:
Signature Page to Collateral Assignment of Amended and Restated Development Agreement(BCS Properties,L.L.C.)
LINCOLN SAVINGS BANK, an Iowa
state-chartered banking corporation
By:
Kade Hoppenworth
First Vice President
STATE OF IOWA )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,2024,by Kade
Hoppenworth, First Vice President of Lincoln Savings Bank, an Iowa state-chartered banking
corporation, for and on behalf of the Iowa state-chartered banking corporation.
Notary Public in the State of Iowa
My commission expires:
Signature Page to Collateral Assignment of Amended and Restated Development Agreement(BCS Properties,L.L.C.)