14. Collateral Assignment and Pledge of Developer Fees (APC) - Vista Breeze
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COLLATERAL ASSIGNMENT AND PLEDGE
OF DEVELOPER FEES AND SECURITY AGREEMENT
(APC VISTA BREEZE DEVELOPMENT, LLC)
This COLLATERAL ASSIGNMENT AND PLEDGE OF DEVELOPER FEES AND
SECURITY AGREEMENT (the “Assignment”) made as of December 15, 2023 by APC
VISTA BREEZE DEVELOPMENT, LLC, a Florida limited liability company (the “Assignor”)
in favor of BANK OF AMERICA, N.A., a national banking association, its successors and
assigns (the “Assignee”) with reference to following facts:
A. VISTA BREEZE, LTD., a Florida limited partnership (the “Borrower”) is the
owner of a leasehold interest in certain real property located at 175 S. Shore Drive and 280 S.
Shore Drive, Miami, Florida 33141 (the “Land”). Pursuant to Chapter 159, Part IV, Florida
Statutes, as amended, Resolution R-1194-78 adopted by the Board of County Commissioners of
Miami-Dade County on October 17, 1978, Ordinance No. 78-89 enacted by the Board on
December 12, 1978 and Ordinance No. 11-99 enacted by the Board on December 6, 2011, the
Housing Finance Authority of Miami-Dade County, Florida, a public body corporate and politic
organized and existing under the laws of the state of Florida (the “Governmental ender”) has
determined to make a mortgage loan to Borrower in a principal amount up to Thirty-Two Million
Five Hundred Thousand and No/100 Dollars ($32,500,000.00) (the “Construction Phase Project
Loan”) to finance the construction of a 119-unit low-income housing development project on the
Land known or to be known as “Vista Breeze” (the “Project”). Governmental Lender has agreed
to make the Construction Phase Project Loan to Borrower pursuant to the terms and conditions of
that certain Construction Phase Borrower Loan Agreement dated December 1, 2023, by and among
The Bank of New York Mellon Trust Company, N.A., a national banking association, as fiscal
agent (in such capacity, the “Fiscal Agent”), Borrower and Governmental Lender (as amended,
restated, supplemented or otherwise modified, the “Construction Phase Project Loan
Agreement”). The Construction Phase Project Loan is evidenced by that certain Construction
Phase Project Loan Note from Borrower, as maker, payable to order of Governmental Lender,
dated as of December 15, 2023 (as amended, restated, supplemented or otherwise modified, the
“Construction Phase Project Loan Note”). Borrower’s obligations, liabilities and indebtedness
to Governmental Lender under and in connection with the Construction Phase Project Loan
(collectively, the “Construction Phase Project Loan Obligations”) are secured by, among other
things, that certain Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture
Filing for the benefit of Governmental Lender (as amended from time to time, the “Security
Instrument”) dated as of the date hereof, encumbering all of Borrower’s rights, title and interest
in and to the Land, the Project and certain other property as more particularly described in the
Security Instrument (the “Property”). All agreements, instruments and documents which
evidence, secure, guaranty or otherwise govern the Construction Phase Project Loan, including,
without limitation, the Construction Phase Project Loan Agreement, the Construction Phase
Project Loan Note and the Security Instrument, as amended, restated, supplemented or otherwise
modified, are herein collectively referred to as the “Construction Phase Project Loan
Documents”. In addition, pursuant to the terms and conditions of the Construction Phase Project
Loan Agreement, Governmental Lender has appointed Assignee as “Servicer” under the
Construction Phase Project Loan Documents.
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B. In order to obtain the funds necessary to enable Governmental Lender to make the
Construction Phase Project Loan to Borrower, Governmental Lender has determined to obtain a
loan (the “Funding Loan”) from Assignee, in its capacity as initial funding lender, in a principal
amount up to Thirty-Two Million Five Hundred Thousand and No/100 Dollars ($32,500,000.00).
Assignee has agreed to make the Funding Loan to Governmental Lender in accordance with the
terms and conditions of that certain Funding Loan Agreement by and among Assignee,
Governmental Lender and Fiscal Agent (as amended, restated, supplemented or otherwise
modified, the “Funding Loan Agreement”). The Funding Loan is evidenced by that certain
Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) dated as of December 15, 2023
from Governmental Lender, as maker, payable to the order of Assignee. The Funding Loan is and
will be funded on a draw-down basis. The Funding Loan proceeds have been or will be used to
make advances under the Construction Phase Project Loan in accordance with the terms and
conditions of the Construction Phase Project Loan Documents. Governmental Lender’s
obligations, liabilities and indebtedness under and in connection with the Funding Loan are
secured by a first priority pledge of, lien on, and security interest in, all of Lender’s rights, title
and interest in, to and under the Construction Phase Project Loan and the Construction Phase
Project Loan Documents, pursuant to the terms and conditions of the Funding Loan Agreement.
To further evidence and perfect such pledge, Governmental Lender has duly endorsed the
Construction Phase Project Loan Note to the order of Fiscal Agent, in trust for the benefit of
Assignee, and has executed and delivered to Fiscal Agent that certain Assignment of Mortgage
and Collateral Loan Documents (the “Project Loan Assignment”) dated as of the date hereof,
assigning to Fiscal Agent, in trust for the benefit of Assignee, among other things, all of
Governmental Lender’s right, title and interest under the Security Instrument. The Project Loan
Assignment has been or will be recorded among the Public Records of Miami-Dade County,
Florida.
C. As additional collateral for Borrower’s obligations under the Construction Phase
Project Loan Documents, Assignor has agreed to procure and deliver to Assignee this Assignment
NOW, THEREFORE, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Assignee and the
Assignor hereby agree as follows:
1. As collateral security for the Assignor’s obligations and indebtedness to Assignee
now or hereafter incurred with respect to the Construction Phase Project Loan Documents
(collectively the “Obligations”), the Assignor hereby pledges and assigns and grants a first and
superior security interest to Assignee in and to all of its right, title and interest in and to all
payments, fees, commissions, developer fees and incentives, and monies due or to become due,
however characterized, together with the proceeds thereof, with respect to the development,
construction and/or operation of the Project by the Assignor in every case, whether now existing
or hereafter acquired (collectively, the “Collateral”). Assignee agrees that in the absence of an
Event of Default, the fees may be paid to Assignor on or after the date hereof in accordance with
the terms of the Development Agreement (as defined below) and the Partnership Agreement (as
defined in the Construction Disbursement Agreement (as defined below)).
2. Following an Event of Default and demand hereunder from Assignee, Borrower is
hereby authorized and directed by Assignor to deliver all subsequent fees under the Development
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Agreement to Assignee as and when payable under the Development Agreement. The Assignor
covenants that, any Collateral which the Assignor receives following notice of such written
demand from Assignee will be immediately delivered to the Assignee. Fees delivered to Assignee
shall be held as cash Collateral by the Assignee for the purpose of securing the payment and
performance of the Borrower under the Construction Phase Project Loan Documents and the
payment of all Obligations, or applied directly to the payment of such Obligations, as Assignee
may elect. The cash Collateral shall be invested by the Assignee in Assignee’s sole but reasonable
discretion. Following an Event of Default by Borrower, upon ten (10) days’ written notice to
Assignor, Assignee shall be entitled to charge such account directly for any unpaid Obligations
including, but not limited to, account fees, interest or principal of the Construction Phase Project
Loan Note. The Assignee shall release the Collateral and interest thereon and deliver the balance
thereof remaining on deposit with it to the Assignor upon the payment in full of all Obligations.
3. The Assignor represents, covenants and warrants that it is the legal and beneficial
owner of the Collateral and Assignor has not and will not enter into any assignment, mortgage,
security agreement, pledge or other instrument which transfers or encumbers all or any part of its
interest in the Collateral or all or any part of its rights to receive income, profits or distributions
thereof assigned hereby except for the assignment to the Investor Limited Partner pursuant to the
terms of the Partnership Agreement.
4. The Assignor agrees not to amend or voluntarily permit the amendment of that
certain Development Agreement by and among the Assignor, HACMB Development, LLC, a
Florida limited liability company, and Borrower, dated as of the date hereof, as amended from
time to time (the “Development Agreement”), which would in any manner materially adversely
affect this Assignment and/or the rights of the Assignee hereunder, without the Assignee’s prior
written consent, which shall not be unreasonably withheld, conditioned or delayed.
5. The Assignor represents, covenants and warrants that it is authorized to enter into
this Assignment, which is the legal, valid and binding obligation of the Assignor enforceable in
accordance with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws.
6. Capitalized terms used but not otherwise defined in this Agreement have the
meanings set forth in that certain Construction Disbursement Agreement dated as of the date hereof
by and between Borrwer and Assignee (the “Construction Disbursement Agreement”).
7. The covenants provided for in this Assignment shall be binding upon the successors
and assigns of the parties hereto.
8. This Assignment shall be governed by the laws of the State of Florida.
9. Neither this Assignment nor any provision hereof may be amended, modified,
waived, discharged or terminated orally, but only by an instrument in writing duly signed by or on
behalf of the Assignor and the Assignee.
10. As part of the consideration for Assignee executing the Construction Disbursement
Agreement, Assignor consents to the jurisdiction of any local, state or federal court located within
the State of Florida and further consent that all service of process may be made by certified mail,
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return receipt requested, to its address set forth below and service so made shall be deemed
completed five (5) days after the same shall have been mailed.
11. So long as this Assignment is in effect, the Assignor will defend the Collateral
against the claims and demands of all other parties; will keep the Collateral free from all security
interests or other encumbrances, except as contemplated by the Construction Phase Project Loan
Documents; and will not sell, transfer, assign, deliver or otherwise dispose of any Collateral or any
interest therein without the prior written consent of the Assignee, except as permitted by the
Construction Phase Project Loan Documents.
12. Intentionally Omitted.
13. The Assignor will execute such additional documents and take such further actions
as may be reasonably required to carry out the provisions and intent of this Assignment, including
and not by way of limitation, executing a financing statement or statements and continuations
thereof. In addition, the Assignor grants to the Assignee a power of attorney coupled with an
interest to effectuate the terms of the foregoing sentence and to file all continuations, renewals or
amended financing statements without the signature of the Assignor.
14. Any of the following events or conditions shall constitute an “Event of Default”
hereunder: nonpayment when due, whether by acceleration or otherwise, of any Obligations
beyond any applicable notice and/or grace period, or default by the Assignor in the performance
of any obligation, term or condition of this Assignment, which is not cured within thirty (30) days
of written notice by Assignee to Assignor, the Construction Phase Project Loan Documents, or
any other agreements executed in connection therewith beyond any applicable notice and/or grace
period.
15. The Assignee’s rights and remedies with respect to the Collateral shall be those of
a secured party under the Uniform Commercial Code and under any applicable law, as the same
may from time to time be in effect, in addition to those rights granted herein and in any other
agreement now or hereafter in effect between the Assignor and the Assignee. Assignor hereby
agrees that Assignee may file or cause to be filed any UCC-1 financing statements as Assignee
deems proper to perfect its security interest hereunder.
16. The Assignor agrees to pay on demand all reasonable costs and actual expenses
incurred by the Assignee in enforcing this Assignment, in realizing upon or protecting any
Collateral and in enforcing and collecting any Obligations or any guaranty thereof, including,
without limitation, if the Assignee retains counsel for advice, suit, appeal, insolvency or other
proceedings under the federal Bankruptcy Code or otherwise, or for any of the above purposes,
the reasonable attorneys’ fees incurred by the Assignee. Payment of all moneys hereunder is
secured by the Collateral.
17. Upon the occurrence and continuance of an Event of Default, after all notice and
cure periods, the Assignor hereby irrevocably appoints the Assignee the Assignor’s true and lawful
attorney, with full power of substitution, in the Assignor’s name or in the Assignee’s name, or
otherwise, for the Assignee’s sole use and benefit, but at the Assignor’s reasonable cost and
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expense, to exercise at any time and from time to time all or any of the following powers with
respect to all or any of the Collateral.
(a) Upon the occurrence and during the continuance of any Event of Default as
set forth in Section 14 above:
(i) To demand, sue for, collect, receive and give acquittance for any and
all moneys due or to become due upon or by virtue thereof.
(ii) To receive, take, hold, endorse, collect, assign and deliver any and
all checks, notes, drafts, documents and other negotiable and non-
negotiable instruments and chattel paper taken or received by the
Assignee in connection herewith.
(iii) To settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto.
(iv) To sell, transfer, assign or otherwise deal in or with the same, or the
proceeds or avails thereof, or to renew the same, as fully and
effectively as if the Assignee were absolute owner thereof, and to
make any allowance and other adjustment with reference thereto.
(v) The Assignee may, subject to the terms of this Assignment, collect
on the Collateral, whether or not any action of the Assignee results
in the imposition of any penalty. The Assignor authorizes the
Assignee from time to time to renew any Collateral at its maturity,
on such commercially reasonable terms as the Assignee deems
appropriate.
(vi) To receive, take, hold, endorse, assign, deliver and collect any and
all checks, notes, drafts, documents and other negotiable and non-
negotiable instruments and chattel paper and to retain in a cash
collateral account the cash proceeds thereof and/or after an Event of
Default to apply the same to the Obligations.
(vii) To require the Assignor to effect collection on any such Collateral
which has become due and to remit the proceeds (less reasonable
costs of collection, including reasonable attorneys’ fees) promptly
upon receipt for deposit in a cash collateral account with the
Assignee.
18. Without limiting any other right of the Assignee, whenever the Assignee has the
right to declare any Obligations to be immediately due and payable (whether or not it has so
declared), the Assignee at its sole but reasonable election, may set off against the Obligations any
and all moneys then or thereafter owed to the Assignor by the Assignee in any capacity, whether
or not the Obligations or the obligation to pay such moneys owed by the Assignee then due, and
the Assignee shall be deemed to have exercised such right of set off immediately at the time of
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such election though any charge therefor is made or entered on the Assignee’s records subsequent
thereto.
19. The Assignor hereby waives any right to require that the Assignee proceed against
any real or personal property or any guaranty given as security for the Construction Phase Project
Loan Note, whether or not existing or hereafter given, before exercising its rights and remedies
with respect to the Collateral.
20. No remedy herein conferred upon or reserved to the Assignee is intended to be
exclusive of any other remedy, and such remedies shall be cumulative and shall be in addition to
every other remedy given hereunder. No delay or omission of the Assignee in exercising any right
or power shall be construed to be a waiver of any default or any acquiescence therein, and every
power and remedy given by the Assignment to the Assignee may be exercised from time to time
as often as may be deemed expedient by the Assignee. In addition to all other remedies provided
in this Assignment, the Assignee shall be entitled, to the extent permitted by applicable law, to
injunctive relief in case of the violation, or attempted or threatened violation, of any of the
provisions of this Assignment and to a decree compelling performance of any of the provisions of
this Assignment.
21. This Assignment may be executed in counterparts, each of which, when taken
together, shall be construed as one and the same instrument.
22. All notices, demands and other communications provided for herein shall be
deemed received upon personal delivery or delivery by national overnight delivery service, or five
(5) business days following deposit in the U.S. mail, postage prepaid, first class registered or
certified mail, return receipt requested, to the Assignor or the Assignee at the following addresses:
If to Assignor:
APC Vista Breeze Development, LLC
c/o Atlantic | Pacific Communities
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
with copies to:
Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, D.C. 20005
Attention: Chris Hornig
and
Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, Florida 33139
Attention: Miguell Del Campillo, Executive Director
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Email: miguell@hacmb.org
Tel.: (305) 532-6401, ext. 3020
and
Fox Rothschild LLP
500 Grant Street, Suite 2500
Pittsburgh, Pennsylvania 15219
Attention: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Tel.: (412) 391-2450
and
Bank of America, N.A.
MA5-100-04-11
100 Federal Street
Boston, MA 02110
Attention: Tax Credit Asset Management – Vista Breeze
and
Holland & Knight LLP
10 St. James Avenue, 11th Floor
Boston, MA 02116
Attention: Sara C. Heskett, Esq.
If to Assignee:
Bank of America, N.A.
401 E. Las Olas Blvd.
Fort Lauderdale, Florida 33301
Mail Stop: FL6-812-18-02
Attention: Binyamin Rosenbaum
with copies to:
Bank of America, N.A.
101 East Kennedy Blvd., 6th Floor
P.O. Box 31590
Tampa, FL 33602
Mail Stop: FL1-400-06-13
Attention: CREB Loan Administration
and
Holland & Knight LLP
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Collateral Assignment and Pledge of Developer Fees (APC)
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31 West 52nd Street
New York, NY 10019
Attention: Kathleen M. Furey, Esq.
23. This Assignment shall terminate automatically without any further action on the
part of Assignor or Assignee upon the repayment in full of the Obligations secured by this
Assignment and additional debts which, in accordance with the provisions hereof, shall be secured
hereby, and any extensions or renewals thereof. Notwithstanding the foregoing, Assignee shall
execute and deliver an instrument reasonably satisfactory to the Assignor to effectuate such
termination.
24. As used herein, the phrases "reasonable attorneys' fees," "attorneys'' fees" or words
of similar import shall refer to the fees charged to Assignee by its outside legal counsel and such
counsel's costs and expenses in connection with the applicable matters without regard to O.C.G.A.
§ 13-1-11 or any other statutory presumption.
25. A determination that any provision of this Assignment is unenforceable or invalid
shall not affect the enforceability or validity of any other provision and the determination that the
application of any provision of this Assignment to any Person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision as it may apply to
other Persons or circumstances.
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