Loading...
HomeMy WebLinkAbout23859AGREEMENT INFORMATION AGREEMENT NUMBER 23859 NAME/TYPE OF AGREEMENT OMNI CRA & BANK OZK DESCRIPTION ESTOPPEL CERTIFICATE & AGREEMENT/MIXED-USE & MIXED -INCOME PROJECT/FILE ID: 7929/CRA-R-20-0014 EFFECTIVE DATE April 12, 2022 ATTESTED BY TODD B. HANNON ATTESTED DATE 4/12/2022 DATE RECEIVED FROM ISSUING DEPT. 4/12/2022 NOTE 2 3 Z. ESTOPPEL CERTIFICATE AND AGREEMENT T S ESTOPPEL CERTIFICATE AND AGREEMENT (the "Agreement") is made as of this VD. day of QC ► k , 2022, by and between BANK OZK, as "Lender" (hereinafter, together with its successors, assigns, and transferees, the "Lender "), and its successors or assigns, with a principal office located at 8300 Douglas Avenue, Suite 900, Dallas, Texas 75225, and OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency created by the City of Miami pursuant to Florida Statutes Section 163.356, with a principal office located at 1401 N. Miami Avenue, 2nd Floor, Miami, Florida 33136 (the "CRA" or "Agency"), and hereby provides: RECITALS: WHEREAS, WYNWOOD HAUS, LLC, a Florida limited liability company (hereinafter, the "Developer"), is the owner in fee of the premises located at 1765 N. Miami Ave, Miami, Florida, as more particularly described in Exhibit A attached hereto and incorporated herein (hereinafter, the "Property"); and WHEREAS, Developer and the Omni Community Redevelopment Agency, a public agency and body corporate created pursuant to Section 163.356 Florida Statutes (the "Agency") entered into that certain Economic Incentive Agreement for Mixed -Use and Mixed -Income Project dated as of (?.a`'("Economic Incentive Agreement"), and to be recorded in the Public Records of Miami -Dade County, Florida, on or about the date hereof (the "Official Records"). WHEREAS, Lender under that certain Construction Loan Agreement dated as of June 28, 2021, (hereinafter, with any amendments, modifications, extensions, replacements or renewals, the "Loan Agreement"), between Developer and Lender, has agreed to make a loan in the amount of $37,700,000.00 (hereinafter, the "Loan") to Developer, as `Borrower" thereunder, which Loan is secured by, among other things, that certain Mortgage, Security Agreement, Assignment of Rents and Fixture Filing to be recorded herewith in the Miami -Dade County Clerk's Office (as the same may be amended, modified, supplemented, combined, consolidated, increased, extended, amended and restated, renewed, replaced, or otherwise refinanced, the "Mortgage"; together with the Loan Agreement and each and every other document executed in connection with the Loan, collectively, the "Loan Documents"); and WHEREAS, as a condition precedent to making the Loan, Lender requires that the Agency provide this Agreement as contemplated by Section 26.13 of the Economic Incentive Agreement; and WHEREAS, Agency has provided to Developer Tax Increment Financing in the total amount not to exceed Twelve Million Nine Hundred Thirty Five Thousand Six Hundred Seventy - Four and 61/100 ($12,935,674.61) and an additional grant in an amount not to exceed One Million One Hundred Thousand ($1,100,00.00) ("Grant") to the Developer both with conditions as evidenced by the Economic Incentive Agreement; and WHEREAS, all capitalized terms used herein which are not otherwise defined herein shall have the meaning ascribed to such terms in the Economic Incentive Agreement and all attachments WORKAMER\20701\078240\38683068.v5-9/9/21 thereto, and all references to "Sections" contained herein and not otherwise described herein shall be deemed to be references to Sections in the Covenant; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party hereby represents, warrants and agrees as follows: Agency Warranties: 1. Authorization. Agency hereby (i) acknowledges that Developer has granted the Mortgage to Lender as security for the Loan and (ii) approves and authorizes Developer's entering into the Loan (together with any amendments, restatements, modifications or refinancing thereof) pursuant to Section 30 of the Economic Incentive Agreement among other conditions and requirements such as CRA's prior written authorization, which conditions are hereby satisfied by Agency's execution of this Agreement. 2. Economic Incentive Agreement. As of the date hereof, that the Economic Incentive Agreement is (i) in full force and effect and (ii) has not been modified, supplemented or amended in any way. 3. No Defaults. As of the date hereof, there is no default or breach, nor any event or condition which, with the passage of time or the giving of notice, or both, could constitute a default or breach under the Economic Incentive Agreement on the part of Developer or Agency. 4. Satisfaction of Conditions. As of the date hereof, all conditions up to the date of this Agreement set forth in the Economic Incentive Agreement to be performed by the Developer and Agency have been satisfied. 5. Notice and Cure. Agency hereby agrees to give prompt written notice, which shall be effective on the date that Agency sends such notice, to Lender of any default of Developer under the Economic Incentive Agreement at the following addresses: Lender: With a copy to: Bank OZK 8300 Douglas Avenue Suite 900 Dallas, Texas 75225 Attention: Cliffton Hill Bank OZK 6th and Commercial P.O. Box 196 Ozark, Arkansas 72949 Attention: Regina Barker With a copy to: King & Spalding LLP 1185 Avenue of the Americas -2- New York, New York 10036 Attention: Erik F. Andersen, Esq. Lender shall have the same right to cure such default(s) as is provided to Developer under the Economic Incentive Agreement (subject to extension as set forth below) and Agency agrees to accept such cure of a default by Lender. Agency may not terminate the Economic Incentive Agreement without affording to Lender an additional period of time equal to sixty (60) days, such period to commence upon the receipt by Lender of written notice of such default during which period Agency will not exercise any remedies under the Economic Incentive Agreement or if possession of, or title to, the Property is required to cure such default, upon mutual written agreement between Lender and Agency, Lender shall have such longer period of time as may be necessary to obtain possession of, or title to, the Property, provided, however, that Lender shall diligently pursue possession of, or title to, the Property if such action is necessary. Subject to the foregoing cure right granted to Lender, Agency reserves the right to exercise all remedies available as outlined pursuant to the Economic Incentive Agreement. Lender Warranties 6. Authorization. Lender hereby (i) acknowledges that Developer has granted to the Agency a covenant and rent regulations as outlined by the documents and as outlined in Economic Incentive Agreement and all attachments and (ii) approves and authorizes Developer's entering into the Economic Incentive Agreement with the Agency and understands that Agency's required conditions are material terms binding the Developer and all subsequent owners in interest and are covenants running with the land. 7. Loan Agreement. As of the date hereof, the Loan Agreement is (i) in full force and effect and (ii) has not been modified, supplemented or amended in any way. 8. Satisfaction of Conditions. As of the date hereof, all conditions up to the date of this Certificate set forth in the Economic Incentive Agreement to be performed by the Developer have been satisfied 9. Notice. Lender hereby agrees to give prompt written notice to Agency of any default of Developer under the Loan Agreement at the following addresses: CRA: Copy to: OMNI COMMUNITY REDEVELOPMENT AGENCY 1401 N. Miami Avenue Miami, Florida 33136 Attention: Jason Walker City of Miami Office of City Attorney -3- 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 Attention: Victoria Mendez, General Counsel 10. Transferee's Rights. Agency acknowledges and agrees that in the event Lender (or its designee or nominee; such person, a "Transferee") succeeds to the interest of Borrower by way of foreclosure, conveyance in lieu of foreclosure or otherwise: (i) the Economic Incentive Agreement and all conditions outlined and running with the land shall continue in full force and effect, in accordance with its terms, (ii) in the event the Transferee assumes the rights and benefits set forth in the Economic Incentive Agreement, Agency shall recognize such Transferee as a "Developer" under the Economic Incentive Agreement and (iii) provided that the Transferee complies with the obligations under the Economic Incentive Agreement and this Agreement, Agency shall perform and observe their obligations under the terms thereof, including, without limitation, making the annual. Incentive Payments pursuant to Section 3.5 of the Economic Incentive Agreement. Such Transferee, and/or its principals, shall (a) not be debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from transactions by any Federal, State, or local department or agency, (b) not within a three-year period preceding such transfer been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction, violation of Federal or State antitrust statutes, falsification or destruction of records, making false statements, or receiving stolen property, (c) not, at the time of such transfer, be indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any offense whatsoever, and (d), within a three-year period preceding such transfer, have one or more public transactions (Federal, State, or local) terminated for cause or default. 11. No Modifications. Until the Loan is paid in full, without Lender's prior written notice, the undersigned shall not agree, approve, consent or vote to amend, modify or terminate the Economic Incentive Agreement. 12. No Offsets or Defenses. As of the date hereof, there are no existing defenses or offsets of which the Agency has knowledge of against Developer preventing enforcement of the Economic Incentive Agreement by Developer. 13. Entire Agreement. The Economic Incentive Agreement and all accompanying exhibits attached constitutes the entire agreement between Developer and the Agency with respect to the subject matter thereof. • 14. Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature -4- of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 15. Governing Law and Venue. This Agreement shall be governed according to the laws of the State of Florida and venue shall be in Miami -Dade County, Florida. 16. Attorney' s . Fees. In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Agreement, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. [Remainder of page intentionally left blank; signatures on next following pages.] LENDER: BANK OZK By; Na r ;O .Cliffton Hill Title: Executive Managing Director Asset Management -6- A 1"1'EST: Todd Hanno APPROVED A REQUIRE Ann -Marie S i rpe Director of ' k Management CRA: OMNI COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and body corporate created pursuant to Florida Statutes Section 163.356 ("CRA") the Board Date: CE By: xecutive Director APPROVED AS TO FORM AND CORRECTNESS Mendez Vic 'a Mendez General Counsel Page 7 EXHIBIT A Description of Property LOT 11, LOT 12, LOT 13, LOT 14, LESS THE WEST 10 FEET THEREOF, LOT 15, LESS THE WEST 10 FEET THEREOF, AND LOT 16, LESS THE WEST 10 FEET THEREOF, OF AMENDED MAP, SEITTER ADDITION, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, PAGE 60, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. LESS RIGHT OF WAY CONVEYED BY THAT CERTAIN RIGHT OF WAY DEED RECORDED IN OFFICIAL RECORDS BOOK. 32522, PAGE 2719, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: A PORTION OF LOTS 11, 12, 13 AND 16, OF AMENDED MAP, SEI1-1'hR ADDITION, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, PAGE 60, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING OF THE SOUTHEAST CORNER OF SAID LOT 11: THENCE SOUTH 89°38' 10" EAST ALONG THE SOUTH LINE OF SAID LOTS AND THE NORTH RIGHT OF WAY LINE OF NE 17 TERRACE, DISTANCE OF 239.86 FEET; THENCE NORTH 00°51'09" EAST ALONG A LINE 10.00 FEET EAST OF AND PARALLEL WITH THE WEST LINE.OF SAID LOT '16, A DISTANCE OF 32.71 FEET TO A POINT .OF A CURVE CONCAVE TO THE NORTHEAST (A RADIAL L1NE.THROUGH SAID LINE BEAR SOUTH 89°08'5" EAST); THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGEL OF 90°29' 19" AND AN ARC DISCTANCE OF 39.48 FEET TO THE POINT OF TANGENCY; THENCE NORTH 89°38' 10" WEST ALONG A LINE 7.50 FEET NORTH OF AND PARALLEL WITH THE SOUTH LINE OF .SAID LOTS, DISTANCE OF 214.65 FEET TO A POINT ON THE EAST LINE OF SAID LOT 11; THENCE SOUTH 00°51'09" WEST, A DISTANCE OF 7.50 FEET TO THE POINT OF BEGINNING. ADDRESS: 1765 N. Miami Avenue, Miami, FL [ EXHIBIT A ] 38989352.7 BANK OZK AUTHORITIES RESOLUTION (Approved by the Board of Directors on November 15, 2021) WHEREAS, the Board of Directors (the "Board") of Bank OZK, an Arkansas state bank (the "Bank"), desires to establish the authorities and responsibilities of certain officers and personnel, and elect and appoint certain of such persons to specific positions, committees and designations from the date hereof until the delegation of such authorities, responsibilities, elections, appointments and designations are changed by action or policies approved by the Board, or any appropriate committee thereof; NOW, THEREFORE, BE IT RESOLVED, that the Board hereby approves the authorities and responsibilities of certain Bank officers and personnel as set forth in these resolutions and hereby elects and appoints such persons to the positions, committees and designations specified herein from the date hereof until the delegation of such authorities, responsibilities, elections, appointments and designations are changed by action or policies approved by the Board, or any appropriate committee thereof, or until the appointment and qualification of their respective successors or until their earlier death, disqualification, reassignment, resignation, or removal; Trust and Wealth Division RESOLVED, that any officer with the title of Vice President or higher within or having responsibility for the Bank's Trust and Wealth Division are, and each of them hereby is, authorized, empowered and directed to execute all documents necessary for normal operations pertaining to the Trust and Wealth Division of the Bank; RESOLVED, that any officer with the title of Assistant Vice President or higher within or having responsibility for the Bank's Trust and Wealth Division are, and each of them hereby is, authorized to execute all documents necessary for normal operations pertaining to trust accounts administered in the Trust and Wealth Division of the Bank which are assigned to such officer; RESOLVED, that the Board hereby authorizes and delegates authority to the Trust Committee of the Board to amend the foregoing authorities relating to the Trust and Wealth Division as may be necessary or appropriate; Correspondent Banks; Federal Funds Investments; Public Funds; Securities RESOLVED, that the Bank is hereby authorized to maintain correspondent bank accounts, sell fed funds on an unsecured basis up to a maximum amount of 25% of the Bank's equity capital and engage in other correspondent transactions with the following approved correspondent banks: First National Bankers Bank PNC Bank First Horizon Bank Truist Bank Federal Reserve Bank of St. Louis Wells Fargo Federal Home Loan Bank of Dallas Zions Bank Page 1 of 5 RESOLVED, that the following officers are, and each of them hereby is, authorized, empowered and directed to maintain correspondent bank accounts and engage in correspondent transactions with the above -listed correspondent banks: Greg McKinney Luke King Mary Beth Roseberry Drew Harper Tim Hicks Greg Dalton RESOLVED, that the following officers are, and each of them hereby is, authorized, empowered and directed to maintain correspondent bank accounts and engage in correspondent transactions with a correspondent bank not listed above, provided that (x) such correspondent bank meets the requirements of Regulation F, (y) the engagement/transaction is approved by one or more authorized officer(s) named below, and (z) the new correspondent banking relationship is subsequently ratified by the Board at the next regularly scheduled meeting: Greg McKinney Luke King Drew Harper Tim Hicks RESOLVED, that the following officers are, and each of them hereby is, authorized and empowered to purchase and/ or sell federal funds: Greg McKinney Tim Hicks Zach Smith Luke King Greg Dalton Aaron Fogle RESOLVED, that the following officers are, and each of them hereby is, authorized and empowered to pledge and withdraw securities or obtain Letters of Credit to secure Public Funds or to initiate Federal Home Loan Bank ("FHLB") borrowings, and are authorized and empowered, in the name and on behalf of the Bank to make or cause to be made, and to execute and deliver, all such agreements, documents, instruments and certifications, with or without the corporate seal of the Bank affixed thereto and attested by the Secretary of the Bank or unattested, and to do or cause to be done all such acts and things, and to take all such actions as may at any time be necessary or advisable in order to consummate such and to effectuate the full intent and purposes of the foregoing resolutions: Greg McKinney Tim Hicks Aaron Fogle Luke King Drew Harper Zach Smith RESOLVED, that the officers designated in the Bank's Investment Policy, as amended from time to time, be authorized and empowered to buy and sell securities or other investments which are authorized by law as legal investments for the Bank as sound banking practices may dictate and follow the Investment Policy, as recommended by the Asset and Liabilities Committee ("ALCO"); Page 2 of 5 Signing Authorities; Normal Bank Operations RESOLVED, that the following officers and employees are, and each of them hereby is, authorized, empowered and directed to execute expense checks, cashier's checks, receipt of time deposits and other documents necessary for normal bank operations as follows: Expense Checks: George Gleason; Greg McKinney; Tim Hicks; Melvin Edwards; Greg Dalton; Stan Thomas; or Joe Strack. Cashiers' Checks and Loan Disbursement Checks: $250,000.01 or over: $25,000.01 to $250,000: $3,000.01 to $25,000: $3,000 or less: Receipt of Time Deposit: Signors on Bank -Owned Checking Accounts: Documents and instruments in connection with the sale of Bank owned real estate (OREO) and / or foreclosed assets: All Other Documents Necessary for Normal Bank Operations: Standard Form Corporate Resolutions: (as required from time to time by routine business activities or in furtherance of specific actions approved by the Board or an authorized committee thereof) Any officer, Banking Relationship Specialist or Senior Client Services Specialist. In the absence of one of the foregoing, any two (2) employees should sign AND verbal approval must be obtained from a Vice President or higher and noted on the instrument. Any officer, Banking Relationship Specialist or Senior Client Service Specialist. In the absence of one of the foregoing, any two (2) employees should sign AND verbal approval must be obtained from an AVP or higher and noted on the instrument. Any officer, Banking Relationship Specialist or Senior Client Service Specialist. In the absence of one of the foregoing, any two (2) employees should sign. Any officer, Client Service Specialist, Senior Client Service Specialist, Consumer Banking Relationship Specialist, or Banking Relationship Specialist. Any employee. Each of the Chief Financial Officer, the Chief Banking Officer and the Chief Credit and Administrative Officer are, and each of them hereby is, authorized, empowered and directed to designate signors on Bank -owned checking accounts as necessary for normal bank operations. All officers with the title of Vice President or higher. All officers with the title of Vice President or higher. Chairman/Chief Executive Officer, Chief Financial Officer, Chief Credit and Administrative Officer, Chief Banking Officer, officers with the title of President or higher, the Corporate Secretary or any Assistant Corporate Secretary, either with or without the attestation of the Corporate Secretary or any Assistant Corporate Secretary. Page 3 of 5 Mortgage Matters RESOLVED, that the following officers and employees are, and each of them hereby is, authorized, empowered and directed to take such action and to execute any and all documents, including endorsement and assignments of notes and mortgages, in order to expedite mortgage loan closings and the sale of loans: Kim Basil, John Redmond, Chad Lane or Dennis Poer; Mortgage Releases RESOLVED, that lending officers with the title of Vice President or higher and any officer of the Loan Operations Department are, and each of them hereby is, authorized, empowered and directed to execute and/or take such action as may be necessary to release any mortgage; Other Collateral Releases RESOLVED, that lending officers with the title of Vice President or higher and any officer of the Loan Operations Department or Special Assets Department are, and each of them hereby is, authorized, empowered and directed to execute and/or take such action as may be necessary to release any and all real or personal property assigned to the Bank as collateral security to a loan or otherwise, at such time when said assignments are deemed no longer needed; Special Officer Designations RESOLVED, that pursuant to the Bank's policies and procedures, the following officers are hereby elected to serve in the special capacities as indicated: Security Officers Bank Secrecy Act Officer2 CRA Officer HIPAA Privacy Officer Compliance Officer Chief Information Security Officer Environmental Risk Assessment Officers Mathew Robinson Ashley Wisdom Angela Hudson Karen Aavik Gary Pacos Jason Cathey The officers specified in Section 8 of Loan Policy, as amended from time to time, shall be the Environmental Risk Assessment Officers for the division and/or market indicated. Ethics Committee RESOLVED, that the following persons shall serve as the Bank's Ethics Committee, having in that capacity the authority and responsibility to make certain evaluations, interpretations and decisions as set forth in the Bank's Code of Business Conduct and Ethics and in other Bank policies, procedures and programs: Greg McKinney, Chairman George Gleason Tim Hicks Cindy Wolfe Tim Hodnett For purposes of, and as required by,12 C.F.R. § 391.2. 2 For purposes of, and as required by, 12 C.F.R. § 326.2 Page 4 of 5 General Authorizations RESOLVED, that the officers specified in these resolutions (each an "Authorized Officer") are, and each of them hereby is, authorized and empowered, in the name and on behalf of the Bank to make or cause to be made, and to execute and deliver, all such additional agreements, documents, instruments and certifications, with or without the corporate seal of the Bank affixed thereto and attested by the Secretary of the Bank or unattested, and to do or cause to be done all such acts and things, and to take all such actions, and to make all such payments and remittances, as any one or more of such Authorized Officers may at any time or times deem necessary or advisable in order to consummate the transactions contemplated by these resolutions and to effectuate the full intent and purposes of the foregoing resolutions; RESOLVED, that any specific resolutions that may be required to have been adopted by the Board in connection with the authorities contemplated by the foregoing resolutions be, and the same hereby are, subject to the provisions thereof, adopted, and the Secretary or any Assistant Secretary of the Bank is hereby authorized to certify as to the adoption of any and all such resolutions; RESOLVED, that in connection with any of the transactions contemplated in the preceding resolutions, the Secretary, or any Assistant Secretary, of the Bank be, and hereby is, authorized in the name and on behalf of the Bank, to execute any instrument or certificate, or certify any more formal or detailed resolutions as such officer may deem necessary, desirable, advisable or appropriate to consummate, effectuate, carry out or further the transactions contemplated by and the intent and purposes of the foregoing resolutions; and that thereupon, such resolutions shall be deemed adopted as and for the resolutions of the Board as if set forth at length herein; RESOLVED, that the omission from these resolutions of any agreement or other arrangement contemplated by any of the transactions described in the foregoing resolutions or any action to be taken in accordance with any requirements of any of the agreements or instruments described in the foregoing resolutions shall in no manner derogate from the authority of the Authorized Officers to take all actions necessary, desirable, advisable or appropriate to consummate, effectuate, carry out or further the transactions contemplated by and the intent and purposes of the foregoing resolutions; and RESOLVED, that all actions heretofore taken by any of the Authorized Officers in connection with the transactions contemplated by these resolutions be, and the same hereby are, approved, adopted, ratified and confirmed in all respects. Page 5 of 5