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HomeMy WebLinkAboutFarmers State Bank - Collateral Assignment of Infrstratuce Development Agreement - 8.21.2023This document prepared by and return to Lynn Wickham Hartman, Simmons Perrine Moyer Bergman PLC, 115 Third Street SE, Suite 1200, Cedar Rapids, IA 52401; telephone 319-366-7641 Legal Description: See Exhibit A beginning at page 8 COLLATERAL ASSIGNMENT OF INFRASTRUCTURE DEVELOPMENT AGREEMENT THIS COLLATERAL ASSIGNMENT OF INFRASTRUCTURE DEVELOPMENT AGREEMENT (this "Assignment") is made and entered into as of the 31 day of 3`v.Ly 2023, by and among North Crossing LLC, an Iowa limited liability company ("Borrower''), THE CITY OF WATERLOO, IOWA, a municipal corporation existing under the laws of the State of Iowa (the "City''), and FARMERS STATE BANK, an Iowa state banking corporation ("Lender") Recitals WHEREAS, Borrower and Lender entered into a Construction Loan Agreement dated July 24, 2023 (the "Loan Agreement"), pursuant to which Lender made a certain loan to Borrower in the aggregate amount of $12,242,698 (the "Note") for the purpose of providing financing for the Virden Creek drainage project legally described on Exhibit A attached hereto and hereby made a part hereof (the "Project"); and WHEREAS, the City and Borrower have entered into that certain Infrastructure Development Agreement dated as of May 15, 2023 (as may be amended, the "Development Agreement"), pursuant to which the City has agreed to provide certain financing incentives in connection with the development and rehabilitation of the Project, including without limitation the grant proceeds ( the "Grants"); and WHEREAS, Lender has required, as an express condition to making the Note, that Borrower assign its rights under the Development Agreement to Lender to secure the obligations of Borrower 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, Borrower hereby agrees 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. Borrower 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 Borrower under the Note and the Loan Agreement. 3. Borrower Representations and Warranties. Borrower hereby represents and warrants 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 neither the City nor Borrower is 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. Borrower 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. Borrower hereby irrevocably constitutes and appoints Lender as its attorney -in -fact to demand, receive and enforce such Borrower's rights under the Development Agreement for and on behalf of and in the name of Borrower or, at the option of Lender, in the name of Lender, with the same force and effect as Borrower could do if this Assignment had not been made. 4. Attorney -in -Fact. Upon the occurrence of a default or event of default under the Note or the Loan Agreement (a "Default"), without affecting any of Lender's rights or remedies against Borrower under any other instrument, Borrower shall be deemed to have irrevocably appointed Lender as Borrower's attorney -in -fact to exercise any or all of Borrower's rights in, to and under the Development Agreement and to give appropriate receipts, releases and satisfactions on behalf of Borrower in connection with the performance by any party to the Development Agreement and to do any or all other acts in Borrower's name or in. Lender's own name that Borrower could do under the Development Agreement with the same force and effect as if this Assignment had not been made. In addition, 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. If notice to Borrower of any intended disposition of collateral or of any intended action as required by law in any particular instance, such notice shall be deemed commercially reasonable if given in writing at least ten (10) days prior to the intended disposition or other action. Borrower 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. All other parties under the Development Agreement are authorized and directed by Borrower to tender performance of its obligations under the Development Agreement to Lender upon presentation of a copy of this Assignment. 5. 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 neither the City nor 2 Borrower is 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 thereof. 6. Transfer of Title to Lender, The City agrees that in the event the Lender, a transferee of the Lender, or a purchaser at foreclosure sale, acquires title to the Project pursuant to foreclosure, or deed in lieu thereof, the Lender, transferee or purchaser shall not be bound by the terms and conditions of the Development Agreement except as expressly provided herein. Further, the City agrees that in the event the Lender, a transferee of the Lender, or a purchaser at foreclosure sale acquires title to the Project pursuant to a foreclosure sale or deed in lieu thereof, then the Lender, transferee or purchaser shall be entitled to all rights conferred upon the Borrower under the Development Agreement, only if no condition of default exists and remains uncured beyond any applicable cure periods in the obligations of the Borrower under the Development Agreement, and that the Lender, transferee or purchaser shall accept all the terms and conditions of the Development Agreement in writing and be bound to the same. By way of illustration, if an uncured default exists pursuant to the terms of the Development Agreement, the City may, among ether available remedies, terminate the Development Agreement. 7. 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. 8. No Amendment The parties hereto agree 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. 9. No Waiver. This Assignment can be waived, modified, amended, terminated or discharged only explicitly in a writing signed by Lender. A waiver by Lender 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 Lender's rights or remedies hereunder.' All rights and remedies of Lender shall be cumulative and shall be exercised singularlfr or concurrently, at Lender's option, and any exercise or enforcement of any one such right or reinedy shall neither be a condition to nor bar the exercise or enforcement of any other. 10. 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. 11. Grants. Lender hereby acknowledges that the grants, when owed subject to the terms and conditions of the Development Agreement, will be a special, limited revenue obligation and not a general obligation of City and is payable by City only from the sources and subject to the qualifications stated or referenced therein. Neither the full faith and credit nor the taxing powers of City are pledged to the payment of the grants and no property or other assets of City, except the Developer Tax Increments (as defined in the Infrastructure Development Agreement) is or will be a source of payment of the grants. 3 12. Notice. Any notice, request, demand or other communication hereunder sh `11 be deemed duly given if delivered or postage prepaid, certified or registered, addressed to the party as set forth below If to the City: The City of Waterloo Attention: Quentin Hart, Mayor and Community Development Director 715 Mulberry St. Waterloo, IA 50703 With copy to: Chris Wendland, Attorney 315 E 5th St. Waterloo, Iowa 50703 If to Borrower: North Crossing, LLC Attention: Ben Stroh 401 Main St. Ste 218 Cedar Falls, IA 50613 With copy to: Eric Johnson, Attorney 620 Lafayette St. Suite 300 PO Box 178 Waterloo, Iowa 50704 If to Lender: Farmers State Bank Attention: Jesse Gleason 131 Tower Park Drive Suite 100 Waterloo, IA 50701 13. This Agreement shall be governed by and construed in accordance with the las of the State of Iowa. [THE REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLA. 4 [SIGNATURE PAGE TO COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT] IN WITNESS WHEREOF, the undersigned have caused this Assignment to be executed as of the date set forth above. North Cro i _, LLC, an Iowa li . ' ed liab' B duly [SIGNATURE PAGE TO COLLATERAL ASSIGNMENT OF INFRASTRUCTURE DEVELOPMENT AGREEMENT] THE CITY OF WATERLOO, IOWA By: t Quentin Hart, Mayor [SIGNATURE PAGE TO COLLATERAL ASSIGNMENT OF INFRASTRUCTURE DEVELOPMENT AGREEMENT] FARMERS STATE BANK By: Jesse Gleason, Vice President EXHIBIT A LEGAL DESCRIPTION Description of Company Property Parcel 8913-12-376-020: North 699.2 feet of the East 769 feet of the West 802 feet of the S 1/4 of the SW 1/4 of Section 12, Township 89 North, Range 13 West of the 5th P.M., Black awk County, Iowa, except the South 102 feet thereof. Parcel 8913-12-351-027: Tract A, North Crossing Addition. Parcel 8913-12-351-030: Lot 1, North Crossing 2nd Addition. Description of City Property Parcel 8913-12-326-003: Parcel "G" of Plat of Survey Doc. #2008-10309 of part of the NE% W1/ of Section 12, Township 89 North, Range 13 West of the 5th P.M., Black Hawk County, Io ' a. Parcel 8913-12-301-009: All that part of the Northwest Quarter of the Southwest Quart-r of Section 12, Township 89 North, Range 13 West ofthe 5th P. M., Black Hawk County, Iowa, ing South of the Ralston Road as established by 420 Deeds 475 except the North 120 feet of the South 136 feet of the West 363 feet thereof and except the East 33 feet thereof and except that part thy reof conveyed to the State of Iowa in 547 LD 447 and further except Parcel "D" of Plat of Survey oc. #2003-05489 and further except that part lying within North Crossing Addition in the Ci of Waterloo, Black Hawk County, Iowa. AND Lot 1, Menard-Logan Plaza Minor Plat, Black Hawk County, Iowa recorded In Doc. #2008-07262 and being a part of the Southwest Quarter of the Southwest Quarter of Sectiol 12, Township 89 North, Range 13. West of the 5th P.M., Black Hawk County, Iowa, except that part lying within North Crossing Addition in the City of Waterloo, Black Hawk County, Iowa. Virden Creek Project Property Parcel 8913-12-151.027: A part of the SW 1/4 NW 1/4 Section 12, T-89-N, R-13-W of the Fifth Principal Meridian, Black Hawk County being more particularly described as follows Commencing at the SE cor. SW 1/4 NW 1/4 comer of said Section 12; thence N00°48'37"W, along the East line of the SW 114 NW 114 of said Section, 997.69 feet to the point of beginning. Thence S89°44'18"W, 987.60 feet; thence N00°43'12"W 100.00 feet; thence S89°45'02' W, 130,00 feet thence S89°56'55"W, 110.17feet to the East right of way tine of Logan Avenue/U.S. Highway63; thence N25°18'44"W, along said right of way, 54.74 feet thence N89°44'21"E, 1250.30 feet to the said East line SW 1/4 NW 1/4; thence S00°48'37"E, along said East line, 150.01 feet to the point of beginning. Parcel 8913-12-176-005: A part of the SE'/. NW% and NE % SW % Section 12, Township 89 North, Range 13 West of the Fifth Principal Meridian, Black Hawk County, being more particularly described as follows: Beginning at the SW corner, SE '% NW'/ of said Section 12; thence N 00°48'37"W, along the West line SE % NW %4 of said Section,1147.69 feet thence N89°44'21" E, 233.01 feet thence S00°48'37"E, 1699.87 feet thence N89°8'50"W, 198.88 feet; thence N00°55'45"W, 550.97 feet to the North line NE'/4SW 344 of said Section; thence S89°57'56"W, along said North Line, 33.00 feet to the point of beginning. Parcel 8913-12-326-005: A part of the NE'/4 SW% Section 12, Township 89 North, Range 13 West of the Fifth Principal Meridian, Black Hawk County, being more particularly described as follows: Commencing at the S34 corner of said Section 12; thence N00°53'50"W along the East line of SW% of the said Section 12, 1846.97 feet to the point of beginning thence N65°38'15''W, 294.10feet; thence N89°56'50"W to the East Right of Way of E. 4'" Street, 1032.27 feet, thence N00°55'45"W, along said East Right of Way, 100.01 feet; thence S89°56'50"E, to the East line of the NEY4 SW'/a of said Section, 1298.33 feet; thence S00°53'50"E, along said East line, 221.10 feet to the point of beginning. Parcel 8913-12-401.002: A permanent easement over and upon the following property owned by Alcorn: A part of the West 15 acres of the SY of the NW'/4 of the SE% of Section 12, Township 89 North, Range 13 West of the 591P.M., Black Hawk County, Iowa, being more particularly described as follows: Commencing at the S% comer of said Section 12; thence N 00°53'50" W along the West line of the SEV44 of said Section 12, 1835.74 feet to the point of beginning; thence N 00°53'50" W continuing along said West line, 99.69 feet; thence S 65°38'15° E, 96.54 feet; _thence S 89°53'58" E, 910.27 feet to a point on the East line of the West 15 acres of the S% of the NWV4 of the SE% of said Section; thence S 00°52'33" E along said East line, 60.01 feet; thence N 89°53'58"'W,.997.57 feet to the point of beginning.