R-18-19VILLAGE OF DEERFIELD
RESOLUTION NO. R-18-19
A RESOLUTION APPROVING AN ESTOPPEL AGREEMENT
(Deerfield Senior Living)
WHEREAS, the JFMC Facilities Corporation (`T'acilities Corporation') and
Deerfield Senior Residences Property Owner, LLC (`Deerf[eld Senior LiviW ) (Facilities
Corporation and Deerfield Senior Living are, collectively, the `AppAcantal are or will be
the record owners of that certain parcel of real property located at the address commonly
known as 1627 Lake Cook Road in the Village ("Property); and
WHEREAS, on December 4, 2017, the Village Board adopted Ordinance No. 0-17.31,
granting Facilities Corporation and Banner Development, LLC (an affiliate of Deerfield
Senior Living), among other things, approval of a Final Development Plan for the
development of a six -story, 240 -unit independent living facility on the property
(`Development') and an amendment to the special use permit for the Weinberg Planned
Unit Development ( `Planned DevelopmentAppzomF); and
WHEREAS, on November 19 2018, the Village Board adopted Ordinance No.
0-1836 amending the Planned Development Approval (`Amended Planned
Development Approval'), which Amended Planned Development Approval is conditioned
upon the Applicants entering into a development agreement for the Property
( `DevelopmentAgreemene); and
WHEREAS, Deerfield Senior Living is seeking a loan from Wells Fargo Bank,
National Association ('Ve&Fargol to finance the Development; and
WHEREAS, as precondition for issuing Deerfield Senior Living a loan, Wells Fargo
has requested that the Village enter into an estoppel agreement ("Estoppel AgreemenO
acknowledging to Wells Fargo, among other things, that Deerfield Senior Living is not in
default under the Amended Planned Development Approval or the Development
Agreement; and
WHEREAS, the Village Board has determined that entering into the Estoppel
Agreement will serve and be in the best interest of the Village;
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE BOARD OF
DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, as follows
SECTION ONE: RECITALS. The foregoing recitals are incorporated into, and
made a part of, this Resolution as findings of the Village Board.
SECTION TWO: APPROVAL OF ESTOPPEL AGREEMENT. The Estoppel
Agreement by and between the Village and Wells Fargo is hereby approved in substantially
the form attached to this Resolution as Exhibit A, and in a final form to be approved by the
Village Manager and the Village Attorney.
SECTION THREE: EXECUTION OF ESTOPPEL AGREEMENT. The Mayor and
the Village Clerk are hereby authorized and directed to execute and attest, on behalf of the
Village, the Estoppel Agreement.
SECTION FOUR: EFFECTIVE DATE. This Resolution will be in full force and
effect only upon the occurrence of all of the following events:
(i) Its passage and approval by a majority of the members of the Village Board;
GO The execution of the Development Agreement by the Applicants; and
(iii) The effective date of the Amended Planned Development Approval.
AYES: Benton, Jester, Oppenheim, Seiden, Shapiro, Struthers
NAYS: None
ABSENT: None
PASSED: November 19, 2018
APPROVED: November 20, 2018
RESOLUTION N0. R-18-19
Harriet Rosen hal, Mayor
ATTES:.t
Kent S. tree`t—,Vdl1agf Clerk
#29495561_v2
ESTOPPEL AGREEMENT
ESTOPPEL AND AGREEMENT
REGARDING
DEVELOPMENT DOCUMENTS
THIS ESTOPPEL AND AGREEMENT REGARDING DEVELOPMENT
DOCUMENTS (this "Estoppel") is provided by the VILLAGE OF DEERFIELD, an Illinois
municipal corporation (the "Village"), in favor of WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Lender"), with respect to (i) the Development Agreement / CJE Senior Life
Deerfield, dated as of [ ], 2018 (the "Development Agreement"), by and between the
Village and DEERFIELD SENIOR RESIDENCES PROPERTY OWNER, LLC, a Delaware
limited liability company ("Developer"), (ii) the Construction Permit Fee Agreement, dated as of
[ 1, 2018 (the "Permit Fee Agreement"), by and between the Village and Developer,
and (iii) the Impact Fee Agreement, dated as of [ , 2018 (the "Impact Fee
Agreement"; together with the Development Agreement and the Permit Fee Agreement,
individually or collectively as the context may suggest or require, the "Development
Documents"), by and between the Village and Developer, which Development Documents relate
in part to the real property more particularly described on Exhibit A attached hereto (the
"Property").
Pursuant to that certain Construction Loan Agreement to be entered into by and between
Developer, as borrower, and Lender (as the same may be amended, restated, amended and restated,
replaced, supplemented or otherwise modified from time to time, the "Loan Agreement"), Lender
intends to make a loan to Developer in the principal amount of up to $[55,535,000] (the "Loan")
to facilitate Developer's construction of an independent living facility (the "Project") located on
the Property and approved by the Village.
The Loan will be evidenced by that certain Promissory Note Secured by Mortgage executed
by Developer in favor of Lender in the original principal amount of the Loan (as the same may be
amended, restated, amended and restated, replaced, supplemented or otherwise modified from time
to time, the "Note"), which Note is secured by that certain Construction Mortgage, Absolute
Assignment of Leases and Rents, Security Agreement and Fixture Filing from Developer, as
mortgagor, in favor of Lender, as mortgagee (as the same may be amended, restated, amended and
restated, replaced, supplemented or otherwise modified from time to time the "Mortgage"), which
Mortgage is to be recorded in the real property records of Cook County, Illinois.
This Estoppel is being provided to Lender in connection with the Loan, and the Village
hereby acknowledges that Lender has the right to, and intends to, rely on the terms hereof in
agreeing to make the Loan to Developer.
NOW THEREFORE, the Village hereby represents, warrants, covenants, agrees and
certifies to Lender as follows:
Agreement Effective. The Development Documents are in full force and effect
without amendment, modification, supplement, or extension except as otherwise
referenced in the preamble hereto and are fully binding upon the Village, and the
Village has no claims arising out of or in any way relating to the Development
Documents against Developer.
2. Existing Defaults. There is no existing default by Developer under any of the
Development Documents, nor has any event occurred which, with the passage of
time or the giving of notice or both, would constitute such a default.
Fees. The Village acknowledges that Developer has paid all costs, payments, fees
and other charges required under the Development Documents or otherwise due
and payable as of the date hereof.
4. Notice of Default; Right to Cure. The Village acknowledges and agrees that it will
not exercise any of its rights under the Development Documents related to a default
until it (i) provides the required notice and cure period to Developer pursuant to the
Development Documents and (ii) concurrently provides a copy of such notice to
Lender at the address provided below. The notice of default served on Developer
will not be effective until the village has sent a copy of the notice to Lender. Lender
shall have the right, but not the obligation, to perform any obligation, agreement or
covenant of Developer under the Development Documents and any of the foregoing
done by Lender shall be effective as though the same were performed by Developer.
5. Notice of Mortgage. By execution of this Estoppel, the Village hereby
acknowledges the existence of the Loan and the Mortgage, which Mortgage will be
a lien on the Property.
6. Consent to Collateral Assignment. As a condition to Lender's agreement to make
the Loan to Developer, Lender has required that Developer assign its rights under
the Development Documents to Lender as additional collateral for the Loan. The
Village hereby consents to the collateral assignment of the Development
Documents by Developer to Lender as additional collateral for the Loan and hereby
agrees that if Lender, its designee or nominee or any third party (a "Successor
Owner") should become the successor owner of the Property through foreclosure
of the Mortgage, or a deed in lieu thereof, then provided Successor Owner assumes
the obligations of Developer, (i) Successor Owner shall have all of the rights and
obligations of the Developer under the Development Documents; provided,
however, that (x) a Successor Owner shall have no obligation to issue replacement
letters of credit or other performance guarantees and (y) if Lender or an affiliate of
Lender is such Successor Owner, then Lender or such affiliate of Lender shall have
no obligation to construct any improvements, including, without limitation, the
guaranteed improvements under the Village Development Code, unless Lender or
such affiliate expressly assumes the obligations of Developer under the
Development Agreement; provided, the foregoing shall not preclude the Village's
right to sue Developer for monetary damages or make a draw against the letter(s)
of credit posted by Developer (but any amount drawn under such letter(s) of credit,
after payment of the Village's reasonable costs and expenses arising out of any
Developer default, including reasonable legal fees, shall be made available to any
Successor Owner completing such guaranteed improvements), (ii) the time periods
for performance of Developer's obligations under the Development Documents
shall be extended for a period of time reasonable under the circumstances to permit
Successor Owner to perform Developer's obligations under the Development
Documents, and (iii) Successor Owner will not be subject to any claims, offsets,
defenses, or penalties arising as a result of Developer's performance, or failure to
perform, under the Development Documents prior to the date that Successor Owner
succeeds to the interests of Developer under the Development Documents.
7. Entire Agreement. The Development Documents constitute all of the agreements
executed between Developer and the Village with respect to the Property.
Notices. Lender's address for purposes of notices under the terms of this
Agreement is as follows:
Wells Fargo Bank, National Association
1750 H Street NW, Suite 650
Washington, DC 20006
Tel: 202.303.3012
Attention: Erin Peart
pearte@wellsfargo.com
And to:
Wells Fargo Bank, National Association
2030 Main Street, Suite 800
Irvine, California 92614
Tel: 949.251.4368
Attention: Sally Sison
sally. a. sison@wellsfargo. corn
9. Amendment. The Village agrees not to amend the Development Documents
without Lender's prior written consent, such consent not to be unreasonably
withheld.
10. Authority. The person(s) executing this Agreement on behalf of Village are
authorized to execute and deliver this Agreement on behalf thereof.
11. Successors and Assigns. Except as otherwise expressly provided under the terms
and conditions herein, the terms of this Agreement shall bind and inure to the
benefit of the successors and assigns of the parties hereto.
12. Headings. All articles, sections or other headings appearing in this Agreement are
for convenience of reference only and shall be disregarded in construing this
Agreement.
13. Counterparts. To facilitate execution, this document may be executed in as many
counterparts as may be convenient or required (which may be effectively delivered
by facsimile, in portable document format (.pdf) or other similar electronic means).
It shall not be necessary that the signature of, or on behalf of, each party, or that the
signature of all persons required to bind any party, appear on each counterpart. All
counterparts shall collectively constitute a single document. It shall not be
necessary in making proof of this document to produce or account for more than a
single counterpart containing the respective signatures of, or on behalf of, each of
the parties hereto. Any signature page to any counterpart may be detached from
such counterpart without impairing the legal effect of the signatures thereon and
thereafter attached to another counterpart identical thereto except having attached
to it additional signature pages. Any party delivering an executed counterpart of
this Agreement by facsimile or other electronic method of transmission shall also
deliver an original executed counterpart, but the failure to do so shall not affect the
validity, enforceability, or binding effect of this Agreement.
14. Conflict. In the event of any conflict between the terms and provisions of the
Development Documents and the terms of this Agreement, the terms and provisions
of this Agreement shall control.
[Signatures Follow on Next Page]
IN WITNESS WHEREOF, this Estoppel has been executed as of this _ day of
, 2018.
"VILLAGE"
VILLAGE OF DEERFIELD,
an Illinois municipal corporation
By:
Name: Harriet Rosenthal
Title: Mayor
ATTEST:
By: k4.1
Name: "-'Ke4 Street
Title: Village Clerk
EXHIBIT A
Description of Property
LOT 2 IN THE FINAL PLAT OF PPF AMLI LAKE COOK ROAD SUBDIVISION BEING A
SUBDIVSION OF A PART OF THE NORTHWEST QUARTER OF SECTION 5 AND PART
OF THE NORTHEAST QUARTER OF SECTION 6, TOWNSHIP 42 NORTH RANGE 12,
EAST OF THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.