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HomeMy WebLinkAboutBANK OF NEW YORK MELLON TRUST COMPANY, N.A., THE (5).A- 2014 -133 -D AFTER RECORDATION RETURN TO: Quint & Thimmig LLP 900 Larkspur Landing Circle, Suite 270 Larkspur, CA 94939 -1726 Attention: Brian D. Quint, Esq. THIS TRANSACTION IS EXEMPT FROM CALIFORNIA DOCUMENTARY TRANSFER TAX PURSUANT TO SECTION 11922 OF THE CALIFORNIA REVENUE AND TAXATION CODE. THIS DOCUMENT IS EXEMPT FROM RECORDING FEES PURSUANT TO SECTION 273 83 OF THE CALIFORNIA GOVERNMENT CODE. ASSIGNMENT AGREEMENT For Value Received, the SANTA ANA FINANCING AUTHORITY (the "Authority') without recourse does hereby sell, assign and transfer to U.S. BANK NATIONAL ASSOCIATION, as agent (the "Agent ") of TPB Investments, Inc., a wholly owned subsidiary of Western Alliance Bank, an Arizona corporation, Compass Mortgage Corporation, an Alabama corporation, and Capital One Public Funding, LLC, and their successors and assigns (collectively, the "Assignees "), (i) all rights, title and interest in and to the Lease Agreement, dated as of June 1, 2014, in the amounts shown on Exhibits A, B, C and D attached hereto, a memorandum of which has been recorded concurrently herewith, by and between the Authority, as sublessor, and the City of Santa Ana (the "City "), as sublessee (said Lease Agreement and any supplements, amendments, annexations, extensions or renewals thereof are referred to hereinafter as the "Lease Agreement "), as well as its rights to enforce payment of Lease Payments (as defined in the Lease Agreement) when due or otherwise to protect its interests and exercise all remedies in the event of a default or termination by the City under the Lease Agreement; provided that the Authority's rights to indemnification and payment or reimbursement for any costs or expenses thereunder have been retained by the Authority to the extent such rights accrue to the Authority and shall have been assigned to the Assignees to the extent such rights accrue to the Assignees, (ii) except for the Authority's obligation under Section 4 thereof, all of its rights, title and interest in and to the Site and Facility Lease, dated as of June 1, 2014, which has been recorded concurrently herewith, by and between the City, as lessor, and the Authority, as lessee (the "Site and Facility Lease "), and (iii) all moneys, sums and amounts now due or hereinafter to become dire under the Lease Agreement. The Site and Facility Lease and the Lease Agreement delivered to the Assignees are duly executed duplicate originals that comprise the entire writing, obligation and agreement between the Authority and the City respecting the leases made thereunder and the lease payments made therefor. The Agent, on behalf of the Assignees, hereby accepts the foregoing assignment. The above assignment is intended to be an absolute and unconditional assignment to the Assignees and is not intended as a loan by the Assignees to the Authority. Accordingly, in the event of bankruptcy of the Authority, the assigned property shall not be part of the Authority's estate. However, if the above assignment is deemed to be a loan by the Assignees to the Authority, then the Authority shall be deemed to have granted to the Assignees, and hereby grants to the Assignees, a continuing first priority security interest in the assigned property and all proceeds thereof as collateral security for all obligations of the Authority hereunder and all obligations of the City under the Lease Agreement and this Assignment Agreement shall be deemed a security agreement with respect to such loan. The Authority represents and warrants as follows: (1) it has made no prior sale or assignment of any interest in the Site and Facility Lease and the Lease Agreement; (2) that the Lease Agreement and the Site and Facility Lease are genuine and in all respects are what they purport to be; (3) that the Assignees are not liable for and do not assume responsibility for the performance of any of the covenants, agreements, duties or obligations specified in the Lease Agreement to be kept, paid or performed by the Authority, with exception of such covenants, agreements, duties and obligations (if any) which are expressly made the responsibility of the Assignees under the Lease Agreement; (4) that the Authority has the power, authority, and legal right to execute, deliver and perform this Assignment Agreement and this Assignment Agreement is a valid, binding, and enforceable obligation of the Authority, except as such enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally and by the application of equitable principles; (5) that good and marketable title to the assigned property has been duly vested in the Assignees free and clear of any liens, security interests, encumbrances or other claims other than the rights of the City under the Lease Agreement, and the Authority has not assigned or transferred any of the assigned property or any interest in the assigned property to any party other than the Assignees; (6) that this Assignment Agreement has been duly authorized by all necessary action on the part of the Authority; and (7) that the Authority agrees that it (a) shall not have any right to amend, modify, compromise, release, terminate or permit prepayment of the Lease Agreement, and (b) shall not take any action that may impair the payment of Lease Payments or the validity or enforceability of the Lease Agreement. The Authority further represents and warrants that as of the date of this Assignment Agreement, the Lease Agreement and the Site and Facility Lease are in full force and effect and the City is not in default of any of the terms set forth therein. By its acceptance of this Assignment Agreement, the Agent, on behalf of the Assignees, represent and warrant (i) the price paid in consideration for assignment of the Site and Facility Lease and the Lease Agreement is $45,060,000; (ii) that the Assignees reasonably expect to hold their interests in the Lease Agreement for their own account and do not presently expect to sell, assign, or otherwise transfer their interests in the Lease Agreement, subject to each Assignee's right to dispose of or otherwise deal with its property (including its interest in the Lease Agreement) as it determines to be in its best interests from time to time; and (iii) that it will treat its interests in the Lease Agreement as an investment for federal income tax purposes. This Assignment Agreement shall be construed and governed in accordance with the laws of the State of California applicable to contracts made and performed in the State of California. Any provision of this Assignment Agreement found to be prohibited by law shall be -2- ineffective only to the extent of such prohibition, and shall not invalidate the remainder of this Assignment Agreement. This Assignment Agreement binds and inures to the benefit of the parties and their respective successors and assigns. In the event of litigation between the Authority and the Assignee arising under this Assignment Agreement, the prevailing party shall be entitled to recover from the other party all costs and expenses, including attorneys' fees which may be those of in -house counsel, incurred by the prevailing party in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions of this Assignment Agreement. The descriptions of the Site and the Facility which are the subject of the Site and Facility Lease and the Lease Agreement are set forth in Exhibits E and F attached hereto and by this reference incorporated herein. -3- EXHIBIT A SCHEDULE OF LEASE PAYMENTS (payable to TPB Investments, Inc.) Lease Total Payment Principal Interest Lease Date Component Component Payment 1/1/15 — $ 391,575.56 $ 391,575.56 7/1/15 $1,870,000 365200.00 2,235200.00 1/1/16 — 334,158.00 334,158.00 7/1/16 1,955,000 334,158.00 2,289,158.00 1 / 1 / 17 — 301,705.00 301,705.00 7/1/17 2,020,000 301,705.00 2,321,705.00 1/1/18 — 268,173.00 268,173.00 7/1/18 2,085,000 268,173.00 2,353,173.00 1/1/19 — 233,562.00 233,562.00 7/1/19 2,155,000 233,562.00 2,388,562.00 1/1/20 — 197,789.00 197,789.00 7/1/20 2,230,000 197,789.00 2,427,789.00 1/1/21 — 160,771.00 160,771.00 7/1/21 2,305,000 160,771.00 2,465,771.00 1/1/22 122,508.00 122,508.00 7/1/22 2,380,000 122,508.00 2,502,508.00 1/1/23 — 83,000.00 83,000.00 7/1/23 2,460,000 83,000.00 2,543,000.00 1/1/24 — 42,164.00 42,164.00 7/1/24 2,540,000 42,164.00 2,582,164.00 TOTAL $22,000,000 $4,244,435.56 $26,244,435.56 (1) Applicable interest rate is 3.32% per annum. Exhibit A EXHIBIT B SCHEDULE OF LEASE PAYMENTS (payable to Compass Mortgage Corporation) Lease Total Payment Principal Interest Lease Date Component Component Payment 1/1/15 — $ 177,988.89 $ 177,988.89 7/1/15 $ 850,000 166,000.00 1,016,000.00 1/1/16 — 151,890.00 151,890.00 7/1/16 890,000 151,890.00 1,041,890.00 1/1/17 — 137,116.00 137,116.00 7/1/17 920,000 137,116.00 1,057,116.00 1/1/18 — 121,844.00 121,844.00 7/1/18 950,000 121,844.00 1,071,844.00 1 / 1 / 19 — 106,074.00 106,074.00 7/1/19 980,000 106,074.00 1,086,074.00 1 / 1 /20 — 89,806.00 89,806.00 7/1/20 1,015,000 89,806.00 1,104,806.00 1/1/21 — 72,957.00 72,957.00 7/1/21 1,045,000 72,957.00 1,117,957.00 1/1/22 — 55,610.00 55,610.00 7/1/22 1,080,000 55,610.00 1,135,610.00 1/1/23 — 37,682.00 37,682.00 7/1/23 1,115,000 37,682.00 1,152,682.00 1/1/24 — 19,173.00 19,173.00 7/l/24 1,155,000 19,173.00 1,174,173.00 TOTAL $10,000,000 $1,928,292.89 $11,928,292.89 (1) Applicable interest rate is 3.32% per annum. Exhibit B EXHIBIT C SCHEDULE OF LEASE PAYMENTS (payable to Capital One Public Funding, LLQ Lease Total Payment Principal Interest Lease Date Component Component Payment 1/1/15 — $89,617.41 $ 89,617.41 7/1/15 $ 425,000 83,581.00 508,581.00 1/l/16 — 76,526.00 76,526.00 7/1/16 445,000 76,526.00 521,526.00 1/1/17 — 69,139.00 69,139.00 7/1/17 460,000 69,139.00 529,139.00 1/1/18 — 61,503.00 61,503.00 7/1/18 480,000 61,503.00 541,503.00 1 / 1 / 19 — 53,535.00 53,535.00 7/1/19 495,000 53,535.00 548,535.00 1/1/20 — 45,318.00 45,318.00 7/1/20 510,000 45,318.00 555,318.00 1/1/21 — 36,852.00 36,852.00 7/1/21 530,000 36,852.00 566,852.00 1/1/22 — 28,054.00 28,054.00 7/1/22 545,000 28,054.00 573,054.00 1/l/23 — 19,007.00 19,007.00 7/1/23 565,000 19,007.00 584,007.00 1/1/24 — 9,628.00 9,628.00 7/1/24 580,000 9,628.00 589,628.00 TOTAL $5,035,000 $972,322.41 $6,007,322.41 (1) Applicable interest rate is 3.32% per annum. Exhibit C SCHEDULE OF LEASE PAYMENTS (payable to Capital One Public Funding, LLC) Lease Total Payment Principal Interest Lease Date Component Component Payment 1/1/15 $ 440,000 $ 161,335.94 $ 601,335.94 7/1/15 — 142,218.75 142,218.75 1/1/16 465,000 142,218.75 607,218.75 7/1/16 — 133,500.00 133,500.00 1/1/17 485,000 133,500.00 618,500.00 7/1/17 — 124,406.25 124,406.25 1/1/18 500,000 124,406.25 624,406.25 7/1/18 — 115,031.25 115,031.25 1/1/19 515,000 115,031.25 630,031.25 7/1/19 — 105,375.00 105,375.00 1/1/20 535,000 105,375.00 640,375.00 7/1/20 — 95,343.75 95,343.75 1/1/21 560,000 95,343.75 655,343.75 7/1/21 — 84,843.75 84,843.75 1/1/22 580,000 84,843.75 664,843.75 7/1/22 — 73,968.75 73,968.75 1/1/23 600,000 73,968.75 673,968.75 7/1/23 — 62,718.75 62,718.75 1/1/24 620,000 62,718.75 682,718.75 7/1/24 — 51,093.75 51,093.75 1/1/25 645,000 51,093.75 696,093.75 7/1/25 — 39,000.00 39,000.00 1/1/26 665,000 39,000.00 704,000.00 7/1/26 — 26531.25 26,531.25 1/1/27 695,000 26,531.25 721,531.25 7/1/27 — 13,500.00 13,500.00 1/1/28 720,000 13,500.00 733,500.00 TOTAL $8,025,000 $2,296,398.44 $10,321,398.44 (1) Applicable interest rate is 3.75% per annum. Exhibit D EXHIBIT E DESCRIPTION OF THE SITE All that certain real property situated in Orange County, State of California, described as follows: Those portions of Lots 4 and 5 in Block B, Lots 1 through 5, inclusive, in Block C, and Lots 1,2 and 3 in Block F, all of the Ross Addition to Santa Ana as shown on the map filed in Book 3, Pages 534 and 535 of Miscellaneous Records, in the office of the County Recorder of Los Angeles County, California; together with those portions of Lots 1 through 5, inclusive, and Lots 12 through 16, inclusive, all of Stout's Addition to Santa Ana, as shown on the map filed in Book 6, Page 28 of Miscellaneous Maps, in the office of the County Recorder of Orange County, California; together with those portions of Lots 1 through 4, inclusive, and Lots 21 through 24, inclusive, all of Geo. W. Ford's Addition to Santa Ana as shown on the map filed in Book 25, Pages 62 of said Miscellaneous Records of Los Angeles County; together with those portions of Lots 1 through 4, inclusive of the Chilton Tract Addition to Santa Ana as shown on the map filed in Book 34, Page 93 of said Miscellaneous Records of Los Angeles County; together with those portions of Sixth Street, Van Ness Street, Parton Street and the alley within said Geo. W. Ford's Addition to Santa Ana as abandoned by City Resolutions, all being in the City of Santa Ana, County of Orange, State of California, described as a whole as follows: Commencing at the centerline intersection of Ross Street and Civic Center Drive as said intersection is shown on Record of Survey 95 -1031 as filed in Book 149, Pages 49 and 50 of Records of Survey, in said office of the County Recorder of Orange County, California; thence along said centerline of Ross Street South 0 °37'23" East 943.49 feet to the centerline intersection of Ross Street and Santa Ana Boulevard as shown on said Record of Survey; thence leaving said centerline of Ross Street, along said centerline of Santa Ana Boulevard, the following courses: South 49 °02'03" West 248.90 feet to the beginning of a curve concave Northwesterly having a radius of 800.00 feet, and Southwesterly 79.51 feet along said curve through a central angle of 5 °41'39'; thence leaving said centerline non- tangent North 35 °16'18" West 54.00 feet to the Northwesterly right -of -way line of said Santa Ana Boulevard, said point also being the most Southerly comer of the land as described in the Grant Deed to the State of California recorded September 26, 2007 as Instrument No. 2007000582904 of Official Records, in the office of said County Recorder of Orange County; thence along the Westerly and Northerly lines of said Grant Deed, the following courses: North 0 °3723" West 342.65 feet, North 89 °22'37" East 66.00 feet and North 09723" West 43.99 feet to the TRUE POINT OF BEGINNING; thence continuing along said Westerly and Northerly lines and the general Northwesterly line of said Grant Deed, the following courses: North 0 °3723" West 7.09 feet to the beginning of a non- tangent curve concave Northwesterly having a radius of 33.00 feet, a radial line of said curve to said point bears South 574722" East, Northeasterly and Northerly 19.53 feet along said curve through a central angle of 3354'20 ", North 1 °41'42" West 5.71 feet to the beginning of a curve concave Southeasterly having a radius of 18.00 feet, Northerly and Northeasterly 14.69 feet along said curve through a central angle of 46 °44'51 " North 45 °03'09" East 31.20 feet to the beginning of a curve concave Westerly having a radius of 26.00 feet, Northeasterly, Northerly and Northwesterly 32.33 feet along said curve through a central angle of 71 °14'38 ", non - tangent North 45'01'29" East 0.66 feet and North 89 °57'38" East 138.81 feet to the Westerly right -of -way line of said Ross Street, said Westerly right -of -way line being parallel with and 40.00 feet Westerly of said centerline of Ross Street; thence leaving said Northerly line along said Westerly right -of -way line North 0 °37'23" West 253.01 feet to the Northerly line of said Lot 5 of Stout's Addition to Santa Ana; thence leaving said Westerly right -of -way line along said Northerly line of Lot 5 and its Westerly prolongation South 89 °57'41" West 220.00 feet to a line being parallel with and 220.00 feet Westerly of said Westerly right -of- way line of Ross Street; thence leaving said Westerly prolongation along said parallel line South 003723" East 100.00 feet; thence leaving said parallel line South 89 °57'41" West 500.00 feet;thence South C)'02'19" East 250.00 feet to a line bearing North 89 °57'41" East and passing through the TRUE POINT OF BEGIlVNING; thence North 89 °57'41" East 545.08 feet to the TRUE POINT OF BEGINNING. Containing an area of 4.292 acres, more or less. Exhibit E EXHIBIT F DESCRIPTION OF THE FACILITY The Facility, consists of Santa Ana City Hall, an 8 -story building, 127,302 square feet, current value of $33,523,899, and the Ross Annex, a 4 -story building, 68,823 square feet, valued at $18,624,187. Santa Ann Cihj Hall houses many of the City's General Service departments such as City Manager's Office, Mayor and City Council offices, City Attorney, HR, Finance Department as well as grant related department such as Community Development and Housing Authority. Furthermore, City Hall houses critical infrastructure necessary for the day -to-day operations of the City such as the main IT data center, Telecommunications, Traffic Management Center, main electrical switch, facility security systems, cashiering systems,just to mention a few. The Ross Annex houses the Planning and Building Agency including its permit and plan check counters (including Fire and PD related permits). It also houses the Finance Departments' Applications and Micro Tech Support Division. Additionally, the Ross Annex houses Public Works Agency capital projects and administration divisions, PWA /PBA data center (including GIS) and other enterprise related divisions. Furthermore, the Ross Annex houses critical revenue collection related systems, infrastructure and staff associated with municipal utility billing, business licensing, hotel visitors tax, and utility users tax. Exhibit F This Assignment Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Dated as of June 1, 2014 Attest: Maria D. Huizar Secretary ACCEPTANCE OF ASSIGNMENT: U.S. BANK NATIONAL ASSOCIATION, as agent for the Assignees By Name Title -4- SANTA ANA FINANCING AUTHORITY By /a David Cavazos Executive Director CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT State of California County of Orange SS City of Santa Ana On this 111h day of June, 2014, before me, Maria D. Huizar , Notary Public, personally appeared David Cavazos, City Manager who proved to me on the basis of satisfactory evidence to be the(ergohl-persons whose (Leftio/nemes<ly /are-subs crib ed to the within instrument and acknowledged to me that SWshe /they executed the same in (tjsZher /their authorized apa Ay /capacities and that bye /her-/threir Ian reFs +gnetures on the instrument the er`s' 13 /persons, or the entity upon be alf of which the erso6/persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. NOTARY SEAL ]- MARIA � Commission n 1974 # 1974202 'a Notary Public - California z Z Orange County M Comm. Ex Tres Apr 51 2016 CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ❑ Corporate ❑ Officers Witness my hand and official seal. Signature of Notary SIGNER IS REPRESENTING: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: RE: BOND REFINANCE TITLE OR TYPE OF DOCUMENT: ASSIGNMENT AGREEMENT NUMBER OF PAGES: DATE OF DOCUMENT: SIGNER (S) OTHER THAN NAMED ABOVE: Title(s) ❑ Partner(s) ❑ General Partner of a Limited ❑ Partnership ❑ Attorney -in -Fact ❑ Trustee (s) ❑ Subscribing Witness ❑ Guardian /Conservator ❑ Other: Witness my hand and official seal. Signature of Notary SIGNER IS REPRESENTING: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: RE: BOND REFINANCE TITLE OR TYPE OF DOCUMENT: ASSIGNMENT AGREEMENT NUMBER OF PAGES: DATE OF DOCUMENT: SIGNER (S) OTHER THAN NAMED ABOVE: