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Home My WebLink AboutContract 45725-CA2 ys��[�Ts ECREY�Iy/�fL1�� (� CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT BETWEEN CITY OF FORT WORTH AND FW WATERSIDE PARTNERS, LLC (CITY SECRETARY CONTRACT NO. TX15 ) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Consent") is entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; and FW WATERSIDE PARTNERS LLC ("Developer"), a Delaware limited liability company; and JPMORGAN CHASE BANK, N.A., as agent for certain lenders (in such capacity, "Lender"), a national banking association. RECITALS The City, Developer and Lender hereby agree that the following statements are true and correct and constitute the basis upon which the parties have entered into this Consent: A. The City and Trademark Property Company previously entered into that certain Economic Development Program Agreement, dated as of July 1, 2014 (the "EDPA"), which was assigned by Trademark Property Company with the consent of the City to Developer, pursuant to which the City agreed to pay Developer certain Program Grants in return for Developer's construction of a mixed-use development in the City in the vicinity of the west side of the intersection of Bryan Irvin Road and Arborlawn Drive, as more specifically outlined in the EDPA (the "Development"). The EDPA is a public document on file in the City Secretary's Office as City Secretary Contract No. 45725. B. Section 10 of the EDPA allows Developer to assign its rights and obligations under the EDPA to a financial institution or other lender for purposes of granting a security interest in the Development and/or Development Property without the approval of the City Council, provided that Developer and the financial institution or other lender first execute a written agreement with the City governing the rights and obligations of the City, Developer, and the financial institution or other lender with respect to such security interest. C. An affiliate of Developer (the "Borrower") wishes to obtain a loan from Lender in order to finance construction of certain improvements at the Development (the "Loan"). As security for the Loan, certain agreements between Borrower and Lender governing the Loan and dated October , 2014, including, but not limited to, that certain Construction Loan and Security Agreement and various other"Loan Documents" Consent to Collateral Assignment of EDPA FW Waterside Partners LLC OFFICIAL RECORD Pagel of 5 RECEIVED OCT 0 0 2014 CITY SECRETARY FT. WORTH, 7H as defined in the Construction Loan and Security Agreement (collectively, the "Loan Documents") require that Developer assign, transfer and convey to Lender all of Developer's rights, interest in and to the EDPA until such time as Developer and Borrower have fully satisfied their respective duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the EDPA (the "Assignment"). D. The City is willing to consent to this Assignment specifically in accordance with the terms and conditions of this Consent. AGREEMENT 1. The City, Developer and Lender hereby agree that the recitals set forth above are true and correct and form the basis upon which the City has entered into this Consent. 2. The City hereby consents to the Assignment at the request of Developer and Lender solely for the purpose of Lender's securing the Loan pursuant to and in accordance with the Loan Documents. Notwithstanding such consent, the City does not adopt, ratify or approve any of the particular provisions of the Loan Documents and, unless and to the extent specifically acknowledged by the City in this Consent, does not grant any right or privilege to Lender or any assignee or successor in interest thereto that is different from or more extensive than any right or privilege granted to Developer under the EDPA. 3. In the event that the City is required by the EDPA to provide any kind of written notice to Developer, including notice of breach or default by Developer, the City shall also provide a copy of such written notice to Lender, addressed to the following, or such other party or address as Lender designates in writing, by certified mail, postage prepaid, or by hand delivery: 2200 Ross Avenue, 9th Floor TX1-2953 Dallas, Texas 75201-2787 Attention of Patrick T. Brann or such other address(es) as Lender may advise City from time to time. 4. If Developer fails to cure any default under the EDPA, the City agrees that Lender, its agents or designees shall have an additional thirty (30) calendar days or such greater time as may specifically be provided under the EDPA to perform any of the obligations or requirements of Developer imposed by the EDPA and that the City will accept Lender's performance of the same as if Developer had performed such obligations or requirements; provided, however, that in the event such default cannot be cured within such time, Lender, its agents or designees, shall have such additional time as may be Consent to Collateral Assignment of EDPA FW Waterside Partners LLC Page 2 of 5 reasonably necessary if within such time period Lender has commenced and is diligently pursuing the remedies to cure such default, including, without limitation, such time as may be required for Lender to gain possession of Developer's interest in the Development pursuant to the terms of the Loan Documents. 5. If at any time Lender wishes to exercise any foreclosure rights under the Loan Documents, before taking any foreclosure action Lender shall first provide written notice to the City of such intent (a "Notice"). Lender shall copy Developer on the Notice and deliver such Notice to Developer by both first class and certified mail return receipt concurrent with its transmittal of the Notice to the City and represent in the Notice that it has done so. Notwithstanding anything to the contrary herein, unless Lender enters into a written agreement with the City to assume and be bound by all covenants and obligations of Developer under the EDPA, Lender understands and agrees that the City shall not be bound to pay Lender any Program Grants pursuant to the EDPA. In addition, Lender understands and agrees that if Lender wishes to sell all or any portion of the Development Property or improvements thereon to a third party following Lender's exercise of any foreclosure rights under the Loan Documents, the City shall not be bound to pay such third party any Program Grants pursuant to the EDPA unless Lender and such third party comply with the procedure for assignment set forth in Section 10 of the EDPA, including the obligation of such third party to enter into a written agreement with the City to assume and be bound by all covenants and obligations of Developer under the EDPA. In the event that payment of any Program Grants are withheld by the City pursuant to this Section 5, any rights to receipt of those Program Grants are hereby waived, but the number and amount(s) of any such Program Grant(s) shall nevertheless be counted for purposes of calculating the Term of the EDPA, as set forth in Section 3 of the EDPA. 6. In the event of any conflict between this Consent and the EDPA or any of the Loan Documents, this Consent shall control. In the event of any conflict between this Consent and any of the Loan Documents, this Consent shall control. In the event of any conflict between the EDPA and any of the Loan Documents, the EDPA shall control. 7. This Consent may not be amended or modified except by a written agreement executed by all of the parties hereto. Notwithstanding anything to the contrary in the Loan Documents, an amendment to any of the Loan Documents shall not constitute an amendment to this Consent or the EDPA. S. Once Borrower and Developer have fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the EDPA and such security interest is released, Lender shall provide written notice to the City that Lender has released such security interest, in which case this Consent shall automatically terminate. 9. This Consent shall be construed in accordance with the laws of the State of Texas. Venue for any action arising under the provisions of this Consent shall lie in state courts Consent to Collateral Assignment of EDPA FW Waterside Partners LLC Page 3 of 5 located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. 10. Capitalized terms used but not specifically defined in this Consent shall have the meanings ascribed to them in the EDPA. 11. This written instrument contains the entire understanding and agreement between the City, Developer and Lender as to the matters contained herein. Any prior or contemporaneous oral or written agreement concerning such matters is hereby declared null and void to the extent in conflict with this Consent. 12. This Consent shall be effective on the later date as of which all parties have executed it. This Consent may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. The failure of any party hereto to execute this Consent, or any counterpart hereof, shall not relieve the other signatories from their obligations from their obligations hereunder. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] Consent to Collateral Assignment of EDPA FW Waterside Partners LLC Page 4 of 5 CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: �it. B 7 Fernando Costa Maleshia B. Farmer Assistant City Manager Senior Assistant City Attorney Date: /O/.9 M&C: none required MonstM , FW WATERSIDE PARTNERS LLC, a Delaware limited liability company: :7 ///, '. aty da 1\ s -C6 Secretary By: Trademark Waterside, L.P., a Texas limited partnership, its Managing Member of F By: TW Genpar, LLC, ��o 6P a Texas limited liability company, ®o ° its general partner g By: Rick Knight Chief Financial Officer Date: JPMORGAN CHASE BANK,N.A., a national banking association: By: - - Name: {�Title: Date:_ /emu-s•v�� -�2� Date: Ld Consent to Collateral Assignment of EDPA FW Waterside Partners LLC �9 �!�? Page 5 of 5