Okaloosa County BOCC — April 21, 2015 — Collateral Request — reading text

ANCHORS ¢ SMITH ¢ GRIMSLEY ‘% RECEIVED A PROFESSIONAL LIMITED COMPANY q ;')7 ‘ C.) ATTORNEYS AND COUNSELORS AT LAW ) 909 MAR WALT DRIVE, SUITE 1014 FORT WALTON BEACH, FL 32547-6711 (850) 863-4064 (850) 862-1138 Fax (850) 664-5728 Fax WWW.ASGLEGAL.COM SHIRAZ A. HOSEIN JEEFREY L. BURNS* N. GRESHAM FOSTER DEWEY PARKER DESTIN KYLE S. BAUMAN C. LEDON ANCHORS JAMES W. GRIMSLEY STEVEN B. BAUMAN C. JEFFREY MCINNIS RICHARD P. PETERMANN* TIMOTHY W. SHAW April 1, 2015 * ALSO ADMITTED IN ALABAMA Jason Autry, P.E. VIA ELECTRONIC MAIL & Public Works Director REGULAR U.S. MAIL County Engineer - Okaloosa County Public Works 1759 S. Ferdon Blvd. Crestview, FLL 32536 Our client: ~ DBR Entertainment Productions, LLC as lease assignee of Dominion Capital, LLC In Re: Collateral Assignment of Lease/Landlord’s Waiver Dear Jason: As you know I represent DBR Entertainment Productions, LL.C, who is the successor by assignment to Dominion Capital, LLC, to the lease with Okaloosa County for the property on Okaloosa Island which is being developed as Wild Willy’s Adventure Zone. OQur clients are nearing completion of the project development and are preparing to commence operations. Thus far in the development of the property and in preparation of the facilities for operation, there has been approximately $6.8 million dollars of cash financing invested into the property by our client. They are now working with Centennial Bank in order to obtain additional funding for the final acquisition of furniture, fixtures and equipment necessary to finish the project in preparation for commencement of operations. As a requirement of that loan, the Bank has asked that our client provide to them a collateral assignment of the lease, including a landlord’s lien waiver, to secure the loan. A copy of the document that has been prepared by attorneys for Centennial Bank is attached for your information and review. This security instrument would not create a mortgage lien on the real estate which is the subject of the lease, but would encumber the leasehold interest and the other collateral owned by our client as defined under Section 6 of the Collateral Assignment document. On behalf of our client, I would appreciate you reviewing this request and, if required, forwarding the documentation and request to the Board of County Commissioners for their approval. I would appreciate this request being scheduled on an agenda for the Board of County Commissioners as soon as possible. I would appreciate you notifying me of the Board meeting at which this request will be considered. By copy of this correspondence and the attachment I am providing this same information to County Attorney Greg Stewart for his information and review as well. If you need any further information or have questions, please do not hesitate to give me a call. Sincerely, CIM/cm Enclosures cc: DBR Entertainment Productions, LLC (with enclosure) Greg Stewart, Esq. (with enclosure) Prepared by and after recording return to: Barron & Redding, P.A. Attn: Holly K. Melzer, Esq. P.O. Box 2467 Panama City, FL 32402 COLLATERAL ASSIGNMENT OF LEASE/LANDLORD’S WAIVER This COLLATERAL ASSIGNMENT OF LEASE, ("Agreement"), is made and entered into as of this __ day of April, 2015, by and between DBR ENTERTAINMENT PRODUCTIONS, LLC, its permitted assigns and successors, having an address of 1306 Miracle Strip Parkway, SE, Fort Walton Beach, FL 32548, ("Assignor"), CENTENNIAL BANK, its successors and/or assigns, having an address of 2200 Stanford Avenue, Panama City, FL 32405, ("Assignee"), and OKALOOSA COUNTY, a political subdivision of the State of Florida, ("Landlord"). WITNESSETH: WHEREAS, Assignee has loaned Assignor the sum of $900,000.00 (the "Loan"), the Loan being evidenced by a Promissory Note dated April _ , 2015, and other associated documents, (the "Loan Documents"), duly executed and delivered by Assignor to Assignee; and WHEREAS, to further induce Assignee to make the Loan, Assignor has agreed to assign to Assignee as additional security for the payment and performance of the Loan, its interest in that certain Lease Agreement entered into by Dominion Capital, LL.C and Landlord on August 13, 2012 and is recorded in Official Records Book 3050, Page 969 of the public records of Okaloosa County, Florida, as modified and assigned to Assignor, as tenant, by that certain Lease Modification Agreement dated November 1, 2014 and recorded in Official Records Book 3172, Page 1940 of the public records of Okaloosa County, Florida, (the "Lease"), which leases to Assignor the property located at 1306 Miracle Strip Parkway, SE, Fort Walton Beach, FL 32548, (“Property”); and WHEREAS, Assignee is unwilling to make the Loan without a collateral assignment of the Lease to secure the Loan, and the Landlord consenting to the Collateral Assignment of the Lease and agreeing the terms as set forth in this Agreement. NOW, THEREFORE, IN CONSIDERATION of the Loan, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows: 1. Recitals. The recitals, above, are true and correct and are incorporated herein by reference. 2. Assignment. Assignor does hereby assign, transfer and set over unto Assignee, its successors and assigns, all of Assignor's right, title and interest in and to the Lease including, but not limited to, the right to possession of the Property, as collateral for the Assignor’s payment and full, faithful and punctual performance of all obligations, covenants, and agreements contained in the Loan Documents. This Agreement secures the indebtedness represented by the Loan Documents, including but not limited to extensions, modifications, renewals, and any and all other liabilities or obligations (primary, secondary, direct, contingent, sole, joint or several) now due to or become due or hereafter contracted or acquired, including future advances. Provided that, if Assignor is current and in good standing concerning its obligations to repay the Loan indebtedness to Assignee and is in compliance with all terms and conditions of the Loan Documents evidencing the Loan, Assignee shall not interfere with Assignor's right to remain in possession of the Property according to the terms of the Lease and to otherwise be entitled to all the other benefits and obligations of the Lease. The Assignor has good right, full power, and lawful authority to grant this Agreement. 3. No Other Encumbrances; No Transfer of Ownership Interests. Except as otherwise specifically provided for in any Loan Documents, it shall be an Event of Default under such Loan Documents, a breach of the conditions of this Agreement, and an event permitting the Assignee to accelerate all indebtedness secured thereby if, without the Assignee’s prior written consent in each instance, which consent may be granted, withheld, or conditionally granted in the Assignee’s sole discretion: (a) there is any transfer, encumbrance, sub-lease, or assignment of, or grant of any security interest in, any of the ultimate beneficial ownership interests in the Assignor relating to the Property; or (b) there is a failure to comply with the provisions of, or there is a default under, the Lease. 4. Lease Representations and Warranties. Assignor and Landlord represent and warrant that the Lease is in full force and effect and Assignor is not in material default under the Lease. Assignor and Landlord shall not modify, terminate, extend, cancel the Lease or modify the rent payable, without having received the Assignee’s prior written consent in each instance which consent shall not be unreasonably withheld or delayed but may be conditioned upon receipt of such information and supporting materials as the Assignee may reasonably request. The Assignor will perform every obligation of the tenant under the Lease and, to the extent commercially reasonable, will enforce every material obligation of the tenant in the Lease now or hereafter in effect with respect to all or any part of the Property. 5. Additional Rights of the Assignee Upon Assignor’s Default. Upon any default whatsoever under the Loan Documents, Assignor’s receipt of notice thereof, and the expiration of any curative period all in accordance with the Loan Documents, Assignee shall thereafter be entitled, at its option and by notice to this effect given to Landlord, to immediate possession of the Lease and Property without any prejudice to the remedies which might otherwise be used to enforce any breach(es) of the Loan Documents. In such event, Assignee shall have all the benefits of the tenant under the Lease and shall be subject to the provisions of the Lease and all the obligations under the Lease on the part of the tenant thereunder to be performed and observed. 6. Landlord’s Consent and Waiver. Landlord hereby consents to the Assignor’s assignment of the Lease as set forth in this Agreement. Landlord acknowledges that Assignor has granted or will grant to the Assignee valid and enforceable security interests in improvements to the Property, furniture, fixtures, equipment, inventory and general intangibles now owned and hereafter acquired by the Assignor and in certain other personal property, (the “Collateral”), described in a Security Agreement from Assignor to the Assignee (as the same may be amended from time to time, the “Security Agreement”). Landlord waives, relinquishes and releases, but only in regard to the Assignee, any and all rights of distraint, attachment, lien, levy or execution against or upon the Collateral for any rent or other sum now or hereafter due to Landlord under the terms, conditions and covenants of the Lease or otherwise, and all claims and demands of every kind and nature whatsoever against the Collateral during the term of the Security Agreement. Upon prior reasonable notice to Landlord, Landlord agrees to provide Assignee with access to the Property to effect removal or sale of the Collateral provided (and it shall be a condition to such removal or sale) that Assignee shall first agree in writing with the Landlord to repair any damage whatsoever caused by the removal or sale of the Collateral. 7. Assignee Not Obligated; Cumulative Rights. Nothing in this Agreement shall be construed as obligating the Assignee to take any action or incur any liability with respect to the Property, Lease, or any business conducted thereon, and all powers given to the Assignee are for its benefit and shall be exercised in the Assignee’s sole discretion, as indicated herein. All of the Assignee’s rights hereunder are cumulative and in addition to, and not substitution for, the rights of the Assignee under all other Loan Documents. 8. Notices. All notices, demands, and other communications made with respect to this Agreement, shall be in writing and given as provided in the Loan Documents and Lease, as the case may be. Upon serving on Assignor any notice under the terms of the Lease, Landlord shall simultaneously serve a copy of such notice upon Assignee by regular United States mail or other appropriate and reasonable means of delivery at 2200 Stanford Road, Panama City, Florida 32405, Attn: Jeremy S. Bennett, and no such notice of default shall be deemed to have been duly given until a copy thereof has been so served. Assignee shall thereupon have the same time within which to remedy or cause to be remedied the defaults complained of in the notice as is allowed to Assignor as the tenant under the terms of the Lease, and Landlord shall accept such performance by or at the instigation of Assignee as if such performance had been accomplished by Assignor. Landlord shall provide Assignee with notice of any default or defaults under the Lease and Assignee shall have no less than thirty (30) days after service of such notice to cure any monetary default(s) referenced therein. If Assignee timely cures any default not timely cured by