Loading...
HomeMy WebLinkAboutItem 06 Approval of the Collateral Assignment Agreements for Ocoee Crown Point Mixed Use Project City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org STAFF REPORT Meeting Date: April 2, 2024 Item #: 6 Contact Name: Michael Rumer Department Director: Michael Rumer Contact Number: Ext. 1018 City Manager: Robert Frank Subject: Approval of the Collateral Assignment of the Escrow and License Agreement and Collateral Assignment of Development Agreement and Transportation Impact Fee Agreement for Ocoee Crown Point Mixed Use Project. (Development Services Director Rumer) Background Summary: The attached Collateral Assignment of Fee Escrow Agreement and License (the “Assignment of Fee Escrow Agreement”) and the Collateral Assignment of Development Agreement and Transportation Impact Fee Agreement (the “Assignment of Impact Fee Agreement”) have been approved by the City Attorney for execution by the City. At Closing, the City entered into the original Fee Escrow Agreement and Impact Fee Agreement with the Developer. The Developer’s lender has asked the City to execute the two collateral assignments as a condition of providing construction financing. By executing the Assignment of Fee Escrow Agreement and the Assignment of Impact Fee Agreement, in the event of a default by the Developer, the lender will have the ability to “step into the shoes” of the Developer and complete the Developer’s obligations under the Agreements. There are no additional obligations or liabilities to the City in connection with the execution of the Assignment of Fee Escrow Agreement or the Assignment of Impact Fee Agreement. Issue: Should the Honorable Mayor and City Commissioners approve the Collateral Assignment of the Escrow and License Agreement and Collateral Assignment of the Development Agreement and Transportation Impact Fee for the Ocoee Crown Point Mixed Use Project? Recommendations: Staff Recommends the Honorable Mayor and City Commissioners approve the Collateral Assignment of the Escrow and License Agreement and Collateral Assignment of Development Agreement and Transportation Impact Fee for the Ocoee Crown Point Mixed Use Project. Attachments: 1. Marlowe Crown Point - Collateral Assignment of Development Agreement and Transportation Impact Fee Agreement 2. Marlowe Crown Point - Collateral Assignment of Fee Escrow Agreement and License Financial Impacts: None City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org Type of Item: Consent COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT AND ROAD TRANSPORTATION IMPACT FEE CREDIT AGREEMENT This COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT AND ROAD TRANSPORTATION IMPACT FEE CREDIT AGREEMENT (this “Assignment”), is made and entered into as of the [_____] day of [_________], 2024 by and among GS CROWN POINT OWNER, LLC, a Delaware limited liability company (“Borrower” or “Assignor”), SANTANDER BANK, N.A. (“Agent”) as administrative agent for itself and the other financial institutions more particularly identified in the Construction Loan Agreement (as the same may be amended, restated, modified or supplemented from time to time, the “Loan Agreement”) of even date herewith by and among Borrower, Agent and the other financial institutions party to the Loan Agreement from time to time, if any (Agent and, such other financial institutions party to the Loan Agreement from time to time, if any, and their respective successors and assigns, being hereinafter referred to individually as “Lender” and collectively as “Lenders”) and CITY OF OCOEE, a Florida municipal corporation (“City”). WHEREAS, Assignor and City are parties to that certain (i) Development Agreement dated as of October 13, 2023 (as the same may be amended from time to time, the “Development Agreement”) and (ii) Road Transportation Impact Fee Credit Agreement for GS Crown Point Owner dated as of October 13, 2023 (as the same may be amended from time to time, the “Impact Fee Agreement”; together with the Development Agreement, individually and collectively, the “Agreement”), a copy of each is attached hereto as Exhibit A; WHEREAS, Assignor and City entered into the Development Agreement pursuant to the provisions of Section 4-5B(5) of Article IV of the Ocoee Land Development Code with respect to the development of certain property located in the City of Ocoee, Orange County, Florida and commonly known as the Ocoee Crown Point Mixed Use Development (the “Project”). WHEREAS, simultaneously with the execution of the Development Agreement, Assignor and City entered into the Impact Fee Agreement relating to the Assignor’s rights and obligations relating to the construction of the New Road Improvements (as defined in the Development Agreement) and receipt of Transportation Impact Fee Credits (as defined in the Impact Fee Agreement); WHEREAS, the Assignor, Agent and the Lenders have entered into the Loan Agreement; and WHEREAS, one of the conditions of the making of the loan (the “Loan”) pursuant to the Loan Agreement is the collateral assignment of the Agreement by the Assignor to the Agent and the Lenders, together with all rights of the Assignor thereunder (together with the Agreement, collectively, “Assigned Rights”), such assignment being given to secure the Obligations (as defined in the Loan Agreement) established under the loan documents executed in connection with the Loan Agreement (as same may be amended from time to time, the “Loan Documents”). NOW THEREFORE and in consideration of the above, and of mutual covenants contained herein and benefits to be derived herefrom, the parties hereto agree follows: 2 1. To secure the prompt, punctual, and faithful payment and performance of the Obligations arising under the Loan Documents, the Assignor hereby collaterally assigns and transfers to Agent for the benefit of the Lenders, and their respective successors and assigns, all of its interest, whether now owned or hereafter acquired, now existing or hereafter arising, wherever located, in, to and under the Assigned Rights. City, by its execution hereof, hereby assents to such collateral assignment and hereby acknowledges this Assignment of the Assigned Rights to the Agent for the benefit of the Lenders, its successors and assigns. 2. This Assignment is a collateral assignment only of all of the rights which the Assignor may now or at any time hereafter have under, pursuant, or in respect of the Assigned Rights. Notwithstanding anything to the contrary in the Agreement, until Agent or its designee or assignee has provided City a written notice of default and has agreed in writing to assume Assignor’s obligations under the Agreement, neither Agent nor any Lender shall be deemed by virtue of this Assignment to have assumed any of the obligations of the Assignor under the Agreement, each of which obligations the Assignor covenants and agrees with Agent and the Lenders to perform and observe in accordance with the terms of the Agreement as if this Assignment had not been made. Neither the Agent nor any Lender shall be under any liability of any kind to City under, pursuant to, or in respect of the Agreement or by reason of any services furnished by the City to or for the account or benefit of the Assignor. City may rely conclusively upon any written notice given by the Agent to the Assignor and City of the occurrence of an Event of Default (as defined in the Loan Agreement) by Borrower under the Loan Agreement. Upon and after the giving of such notice, and until further written notice from the Agent to the Assignor and City, the Agent may (but shall not be obligated to) exercise all rights granted to Assignor under the Agreement. 3. The Assignor represents and warrants to Agent and the Lenders (a) that the Agreement is unmodified and in full force and effect, (b) the Agreement is a valid and binding agreement enforceable against Assignor in accordance with its terms, except as the availability of certain remedies may be limited by general principles of equity, and (c) that, as of the date hereof, there are no defaults under the Agreement by such Assignor or, to the best of its knowledge, any other party thereto. The Assignor represents and warrants that the Assignor has not made any other assignment of the Assigned Rights. Assignor hereby covenants and agrees that Assignor shall not, without first obtaining Agent’s written consent, convey, assign, sell, mortgage, encumber, pledge, hypothecate, grant a security interest in, grant an option or options with respect to, or otherwise dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration) Assignor’s interest (or any portion thereof) in the Agreement. 4. Assignor and City (by its assent hereto) agree that each will furnish to the Agent copies of all written notices (including all notices of default) given to any party under the Agreement, simultaneously with the giving of such notice to such party. City and Assignor agree that the Agent may cure defaults on Assignor’s behalf, that Agent shall have the same cure rights as Assignor under the Agreement and City agrees to accept any such performance by the Agent which cures any default by Assignor. City acknowledges and agrees that the 3 immediately preceding sentence is not intended to and does not obligate Agent to cure any default of Assignor. 5. For the avoidance of the doubt, the assigned rights assigned hereunder include all of Assignor’s right, title and interest in and to (a) the Approved Plan (as defined in the Development Agreement), to the extent assignable, (b) the Design Plans (as defined in the Impact Fee Agreement), to the extent assignable, (c) to the extent permitted by the relevant authorities, any permits issued (or applications therefor) with respect to the construction and/or development of the Project, (d) the Transportation Impact Fee Credits (as in the Development Agreement) and the Impact Fee Credits (as defined in the Impact Fee Agreement), and (e) the total amount to be reimbursed in connection with Section 4(c) of the Impact Fee Agreement. 6. City agrees that unless the Agent expressly assumes in writing the obligations of the Assignor under the Agreement, neither the Agent nor any Lender shall be deemed to have assumed any of the obligations of the Assignor under the Agreement, nor shall the Agent or any Lender be under any liability of any kind to City under the Agreement. This Assignment does not release or affect in any way the obligations of the Assignor to City. Each of Assignor and City agree to promptly and punctually perform its obligations under the Agreement. 7. Notwithstanding the terms and provisions of the Agreement, in the event the Assignor defaults thereunder, but Agent (a) cures the default, or (b) has commenced and is continuing to cure the default in accordance with the time frames provided herein, City shall be obligated to continue to fully meet its obligations under the Agreement. 8. The rights of the Agent hereunder may be fully exercised by the Agent’s designee or assignee. Any action or proceedings to enforce this Assignment may be taken by the Agent or its assignee or designee either in its name or in the name of the Assignor as the Agent may deem necessary. Further, upon the assignment by the Agent of its rights hereunder, the Agent shall be automatically released from any liability of any nature whatsoever hereunder or under this Assignment and the Agreement. 9. Upon the occurrence and during the continuance of an Event of Default, City (by its assent hereto) agrees to recognize Agent’s right to (a) perform the obligations of the Assignor under the terms of the Agreement, and (b) receive the benefits to which the Assignor would be entitled under the terms of the Agreement. Assignor by its execution hereof authorizes City to accept such directions from Agent and to perform or make payments due to Assignor under the Agreement directly to Agent and Assignor hereby waives all claims against City for the performance of any benefits or the receipt of any benefits, including the receipt of payments, which are made to Agent at Agent’s direction. 10. The payment in full of the Loan shall constitute a discharge of this Assignment and a release of the Agent’s interest in the Assigned Rights and the reassignment thereof (without recourse to the Agent) to the Assignor. 4 11. Any notice in connection with this Assignment shall be in writing, and shall be delivered by hand or overnight courier service, or mailed by certified or registered mail, as follows: If to Assignor or City to the address provided in Section 7 of the Impact Fee Agreement and Section 17 of the Development Agreement. If to Agent to: Santander Bank 75 State Street Boston, Massachusetts 02109 Attention: Morgan Salmon with copies to: Riemer & Braunstein LLP 100 Cambridge Street, 22nd Floor Boston, Massachusetts 02109 Attention: Christina E. Shvartsman, Esquire Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given shall be deemed to be receipt of the notice sent. Either party by notice to the other may designate additional or different addresses for subsequent notices or communications. 12. This Assignment may be amended or modified only by a written instrument signed by the parties hereto. 13. This Assignment may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one instrument. To facilitate execution of this Assignment, the parties may execute and exchange PDF counterparts of the signature pages, which shall be deemed original signatures for all purposes. 14. Wherever possible each provision of this Assignment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Assignment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Assignment. 15. This Assignment shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida except to the extent preempted by federal laws. 16. Each party to this Assignment (and Agent by its acceptance hereof), hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action (1) arising under this Assignment or any other instrument, document or agreement executed or 5 delivered in connection therewith, or (2) in any way connected with or related or incidental to the dealings of the parties hereto or any of them with respect to this Assignment of any other instrument, document or agreement executed or delivered in connection herewith, or the transactions related hereto or thereto, in each case whether now existing or hereafter arising, and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party to this Assignment may file an original counterpart or a copy of this Paragraph with any court as written evidence of the consent of the parties hereto and Agent to the waiver of their right to trial by jury. 17. Wherever possible each provision of this Assignment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Assignment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Assignment. 18. City agrees that this Assignment shall constitute notice of Assignor’s collateral assignment to Agent (as its mortgage lender) of its rights under the Agreement and City acknowledges receipt of Agent’s name and address. [Remainder of Page Intentionally Blank] [Collateral Assignment of Development Agreement and Road Transportation Impact Fee Credit Agreement– Signature Page] It is intended that this Assignment take effect as of the date first above written. ASSIGNOR: GS CROWN POINT OWNER, LLC, a Delaware limited liability company By: ___________________________ Name: Title: [Collateral Assignment of Development Agreement and Road Transportation Impact Fee Credit Agreement– Signature Page] CITY: CITY OF OCOEE By:________________________ Name: Rusty Johnson Title: Mayor [Collateral Assignment of Development Agreement and Road Transportation Impact Fee Credit Agreement– Signature Page] AGENT: SANTANDER BANK, N.A. By:________________________ Name: Title: Exhibit A Exhibit A Agreement(s) 3841766.3 COLLATERAL ASSIGNMENT OF FEE ESCROW AGREEMENT TEMPORARY LICENSE AGREEMENT This COLLATERAL ASSIGNMENT OF FEE ESCROW AGREEMENT AND TEMPORARY LICENSE AGREEMENT (this “Assignment”), is made and entered into as of the [_____] day of [_________], 2024 by and among GS CROWN POINT OWNER, LLC, a Delaware limited liability company (“Borrower” or “Assignor”), SANTANDER BANK, N.A. (“Agent”) as administrative agent for itself and the other financial institutions more particularly identified in the Construction Loan Agreement (as the same may be amended, restated, modified or supplemented from time to time, the “Loan Agreement”) of even date herewith by and among Borrower, Agent and the other financial institutions party to the Loan Agreement from time to time, if any (Agent and, such other financial institutions party to the Loan Agreement from time to time, if any, and their respective successors and assigns, being hereinafter referred to individually as “Lender” and collectively as “Lenders”), CITY OF OCOEE, a Florida municipal corporation (“City”) and FISHBACK DOMINICK, LLP (“Escrow Agent”). WHEREAS, Assignor and City are parties to that certain (i) Fee Escrow Agreement dated as of December 20, 2023 (as the same may be amended from time to time, the “Fee Escrow Agreement”) and (ii) Temporary License Agreement dated as of December 20, 2023 (as the same may be amended from time to time, the “License Agreement”; together with the Fee Escrow Agreement, individually and collectively, the “Agreement”), a copy of each is attached hereto as Exhibit A; WHEREAS, Assignor, City and Escrow Agent entered into the Fee Escrow Agreement to evidence their agreement with respect to the completion of the Roadway Improvements (as defined in the Fee Escrow Agreement) and the holding and disbursement of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) which City deposited with Escrow Agent pursuant to the Fee Escrow Agreement. WHEREAS, simultaneously with the execution of the Fee Escrow Agreement, Assignor and City entered into the Temporary License Agreement for the purpose of making the ROW Property (as defined in the License Agreement) available to Assignor to complete the Roadway Improvements via the grant of a temporary access and construction license upon the ROA Property in the event Assignor elects to exercise its self-help rights in accordance with the Fee Escrow Agreement; WHEREAS, the Assignor, Agent and the Lenders have entered into the Loan Agreement; and WHEREAS, one of the conditions of the making of the loan (the “Loan”) pursuant to the Loan Agreement is the collateral assignment of the Agreement by the Assignor to the Agent and the Lenders, together with all rights of the Assignor thereunder (together with the Agreement, collectively, “Assigned Rights”), such assignment being given to secure the Obligations (as defined in the Loan Agreement) established under the loan documents executed in connection with the Loan Agreement (as same may be amended from time to time, the “Loan Documents”). 2 NOW THEREFORE and in consideration of the above, and of mutual covenants contained herein and benefits to be derived herefrom, the parties hereto agree follows: 1. To secure the prompt, punctual, and faithful payment and performance of the Obligations arising under the Loan Documents, the Assignor hereby collaterally assigns and transfers to Agent for the benefit of the Lenders, and their respective successors and assigns, all of its interest, whether now owned or hereafter acquired, now existing or hereafter arising, wherever located, in, to and under the Assigned Rights. City and Escrow Agent, by its execution hereof, hereby assents to such collateral assignment and hereby acknowledges this Assignment of the Assigned Rights to the Agent for the benefit of the Lenders, its successors and assigns. 2. This Assignment is a collateral assignment only of all of the rights which the Assignor may now or at any time hereafter have under, pursuant, or in respect of the Assigned Rights. City and Escrow Agent may rely conclusively upon any written notice given by the Agent to the Assignor, Escrow Agent and City (a “Default Notice”) of the occurrence of a Default or an Event of Default (as defined in the Loan Agreement) by Borrower under the Loan Agreement (“Default”). Upon and after the giving of such notice, and until further written notice from the Agent to the Assignor, Escrow Agent and City, the Agent shall assume and exercise all rights granted to Assignor under this Assignment and all rights of Agent under the Agreement including any one or more of the rights of a secured party afforded by the Uniform Commercial Code, as from time to time in effect in the State of Florida or afforded by other applicable law 3. The Assignor and City represent and warrant (as to such party only) to Agent and the Lenders (a) that the Agreement is unmodified and in full force and effect, (b) the Agreement is a valid and binding agreement enforceable against such party in accordance with its terms, except as the availability of certain remedies may be limited by general principles of equity, and (c) that, as of the date hereof, there are no defaults under the Agreement by such party or, to the best of its knowledge, any other party thereto. The Assignor represents and warrants that the Assignor has not made any other assignment of the Assigned Rights. Assignor hereby covenants and agrees that Assignor shall not, without first obtaining Agent’s written consent, convey, assign, sell, mortgage, encumber, pledge, hypothecate, grant a security interest in, grant an option or options with respect to, or otherwise dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration) Assignor’s interest (or any portion thereof) in the Agreement. 4. City and Escrow Agent agree that unless the Agent gives a Default Notice, neither the Agent nor any Lender shall be deemed to have assumed any of the obligations of the Assignor under the Agreement, nor shall the Agent or any Lender be under any liability of any kind to City or Escrow Agent under the Agreement. This Assignment does not release or affect in any way the obligations of the Assignor to City and Escrow Agent. 5. The rights of the Agent hereunder may be fully exercised by the Agent’s designee or assignee. Any action or proceedings to enforce this Assignment may be taken by the Agent or its assignee or designee either in its name or in the name of the Assignor as the Agent 3 may deem necessary. Further, upon the assignment by the Agent of its rights hereunder, the Agent shall be automatically released from any liability of any nature whatsoever hereunder or under this Assignment and the Agreement. 6. Upon the occurrence and during the continuance of a Default or an Event of Default, City and Escrow Agent (by its assent hereto) agrees to recognize Agent’s right to (a) perform the obligations of the Assignor under the terms of the Agreement, and (b) receive the benefits to which the Assignor would be entitled under the terms of the Agreement. Assignor by its execution hereof authorizes City and Escrow Agent to accept such directions from Agent and to perform or make payments due to Assignor under the Agreement directly to Agent and Assignor hereby waives all claims against City and Escrow Agent for the performance of any benefits or the receipt of any benefits, including the receipt of payments, which are made to Agent at Agent’s direction. 7. The payment in full of the Loan shall constitute a discharge of this Assignment and a release of the Agent’s interest in the Assigned Rights and the reassignment thereof (without recourse to the Agent) to the Assignor. 8. Any notice or other communication in connection with this Assignment shall be in writing, and shall be delivered by hand or overnight courier service, or mailed by certified or registered mail, as follows: If to Assignor or City to the address provided in Section 8 of the Fee Escrow Agreement and Section 9 of the License Agreement. If to Agent to: Santander Bank 75 State Street Boston, Massachusetts 02109 Attention: Morgan Salmon with copies to: Riemer & Braunstein LLP 100 Cambridge Street, 22nd Floor Boston, Massachusetts 02109 Attention: Christina E. Shvartsman, Esquire Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given shall be deemed to be receipt of the notice sent. Either party by notice to the other may designate additional or different addresses for subsequent notices or communications. 4 9. This Assignment may be amended or modified only by a written instrument signed by the parties hereto. 10. This Assignment may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one instrument. To facilitate execution of this Assignment, the parties may execute and exchange PDF counterparts of the signature pages, which shall be deemed original signatures for all purposes. 11. Wherever possible each provision of this Assignment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Assignment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Assignment. 12. This Assignment shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida except to the extent preempted by federal laws. 13. Each party to this Assignment (and Agent by its acceptance hereof), hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action (1) arising under this Assignment or any other instrument, document or agreement executed or delivered in connection therewith, or (2) in any way connected with or related or incidental to the dealings of the parties hereto or any of them with respect to this Assignment of any other instrument, document or agreement executed or delivered in connection herewith, or the transactions related hereto or thereto, in each case whether now existing or hereafter arising, and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party to this Assignment may file an original counterpart or a copy of this Paragraph with any court as written evidence of the consent of the parties hereto and Agent to the waiver of their right to trial by jury. 14. Wherever possible each provision of this Assignment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Assignment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Assignment. 15. City agrees that this Assignment shall constitute notice of Assignor’s collateral assignment to Agent (as its mortgage lender) of its rights under the Agreement and City acknowledges receipt of Agent’s name and address. [Remainder of Page Intentionally Blank] [Collateral Assignment of Fee Escrow Agreement and Temporary License Agreement– Signature Page] It is intended that this Assignment take effect as of the date first above written. ASSIGNOR: GS CROWN POINT OWNER, LLC, a Delaware limited liability company By: ___________________________ Name: Title: [Collateral Assignment of Fee Escrow Agreement and Temporary License Agreement– Signature Page] CITY: CITY OF OCOEE By:________________________ Name: Rusty Johnson Title: Mayor [Collateral Assignment of Fee Escrow Agreement and Temporary License Agreement– Signature Page] AGENT: SANTANDER BANK, N.A. By:________________________ Name: Title: [Collateral Assignment of Fee Escrow Agreement and Temporary License Agreement– Signature Page] Agreed and Acknowledge as of the date first above written. ESCROW AGENT: FISHBACK DOMINICK, LLP By:________________________ Name: Paul D. Johnson, Jr. Title: Partner Exhibit A Exhibit A Agreement(s) 3854206.3