HomeMy WebLinkAboutContract 48303-SA1 CmrSECRETARY 1
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D216262151 11171201612:31 PM PGS 21 Fee: $96.00 Submitter:CSC ERECORDING SOLUTIONS
Electronically Recorded by Tarrant County Clerk in Official Public Records
Bv�Ql�a+«ot. Mary Louise Garcia
Freddie Mac Loan(Permanent)Number:932432581
Frp Jl+Ia e:Broadmoor Apartments
SUBORDINATION AGREEMENT
GOVERNMENTAL ENTITY
(Direct Purchase of Tax-Exempt Loans)
(Revised 11/1/2015)
t-
INATION AGREEMENT ("Agreement") is entered into this ? day of
November, 2016, by and among AMEGY BANK, a Division of ZB, National Association
("Senior Mortgagee"),and CITY OF FORT WORTH,TEXAS("Subordinate Mortgagee").
RECITALS
A. THE BROADMOOR AT WESTERN HILLS LTD., a Texas limited partnership
("Borrower") has a leasehold interest in certain land located in Tarrant County, Texas,
described in Exhibit A ("Land'). The Land is improved with a multifamily rental
housing project("Improvements").
B. TARRANT COUNTY HOUSING FINANCE CORPORATION ("Governmental
Lender"), the original holder of the Senior Note, has made a loan to Borrower in the
original principal amount of $26,750,000.00 ("Senior Loan") upon the terms and
conditions of a Project Loan Agreement dated as of November 1, 2016 ("Project Loan
Agreement') among Governmental Lender, Senior Mortgagee (in its capacity as Fiscal
Agent under the Funding Loan Agreement(defined below))and Borrower in connection
with the Mortgaged Property. The Senior Loan is secured by a Multifamily Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of
November 1, 2016{"Senior Mortgage") encumbering the Land,the Improvements and
related personal and other property described and defined in the Senior Mortgage as the
"Mortgaged Property"
C. Pursuant to a Home Contract between Subordinate Mortgagee and Borrower
("Subordinate Loan Agreement"), Subordinate Mortgagee has made or is making a
loan to Borrower in the original principal amount of$559,481.00("Subordinate Loan").
The Subordinate Loan is or will be secured by a Leasehold Deed of Trust, Security
Agreement and Financing Statement (Home Funds) dated as of November 1. 2016
("Subordinate Mortgage")encumbering all or a portion of the Mortgaged Property.
D. The Senior Mortgage will be recorded in land records of Tarrant County, Texas
("Recording Office"), prior to recordation of this Agreement. The Subordinate
Mortgage will be recorded in the Recording Office at following the recording of the
Senior Mortgage.
rOlFFICIALI RECORD
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E. The Senior Note (as defined below) was assigned by Governmental Lender to Senior
Mortgagee as security for the loan (the "Funding Loan") made by the Initial Funding
Lender (as defined below) to the Governmental Lender pursuant to the Funding Loan
Agreement(as defined below). The Senior Mortgage was assigned by the Governmental
Lender to Senior Mortgagee as security for the Funding Loan pursuant to an Assignment
of Security Instrument dated of even date herewith to be recorded contemporaneously
herewith.
F. Subject to the terms and conditions of that certain Construction Phase Financing
Agreement(the"Construction Phase Financing Agreement's dated as of November 1,
2016 between Borrower, NAVISTONE BROADMOOR INSTRUMENT PURCHASER
LLC, an Ohio limited liability company ("Initial Funding Lender"), Federal Home
Loan Mortgage Corporation and JONES LANG LASALLE MULTIFAMILY, LLC, a
Delaware limited liability company ("Permanent Funding Lender"), Initial Funding
Lender shall subsequently assign and deliver the documents comprising the Funding
Loan to the Permanent Funding Lender and,in connection therewith,the Senior Note(as
defined herein) and the Senior Mortgage will be amended and restated, and thereafter
assigned to the Fiscal Agent("Conversion'D.
G. Pursuant to the Senior Mortgage and Section 6.03 of the Funding Loan Agreement dated
as of November 1,2016 among Initial Funding Lender, Governmental Lender and Senior
Mortgagee(the"Funding Loan Agreement"),the Funding Lender has the right to direct
all actions of the Senior Mortgagee with respect to the Senior Mortgage,the Mortgaged
Property and the Project Loan Agreement and, upon Conversion, shall have the right to
amend and restate the Senior Note and the Senior Mortgage, as well as the right to
amend, waive, postpone, extend, renew, replace, reduce or otherwise modify any
provision of any of the Senior Loan Documents (as defined herein), without notice to or
the consent or joinder of the Subordinate Mortgagee.
G. The execution and delivery of this Agreement is a condition of Funding Lender's
consenting to Subordinate Mortgagee's making of the Subordinate Loan and Borrower's
granting of the Subordinate Mortgage.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
acknowledged,the parties agree as follows:
1. Definitions. The following terms, when used in this Agreement (including, as
appropriate,when used in the above recitals),will have the following meanings.
(a) The terms "Condemnation," "Imposition Reserve Deposits," "Impositions,"
"Leases," "Rents" and "Restoration," as well as any term used in this
Agreement and not otherwise defined in this Agreement, will have the meanings
given to those terms in the Senior Loan Agreement.
(b) "Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency,
composition, restructuring, dissolution, liquidation, receivership, assignment for
the benefit of creditors,or custodianship action or proceeding under any federal or
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state law with respect to Borrower, any guarantor of any of the Senior
Indebtedness, any of their respective properties, or any of their respective
partners,members,officers,directors,or shareholders.
(c) "Borrower" means all persons or entities identified as "Borrower" in the first
Recital of this Agreement, together with their successors and assigns, and any
other person or entity who acquires title to the Mortgaged Property after the date
of this Agreement; provided that the term "Borrower" will not include Senior
Mortgagee or Funding Lender if Senior Mortgagee or Funding Lender acquires
title to the Mortgaged Property.
(d) "Casualty"means the occurrence of damage to or loss of all or any portion of the
Mortgaged Property by fire or other casualty.
(e) "Enforcement Action" means any of the following actions taken by or at the
direction of Subordinate Mortgagee: the acceleration of all or any part of the
Subordinate Indebtedness,the advertising of or commencement of any foreclosure
or trustee's sale proceedings,the exercise of any power of sale,the acceptance of
a deed or assignment in lieu of foreclosure or sale, the collecting of Rents, the
obtaining of or seeking of the appointment of a receiver, the seeking of default
interest,the taking of possession or control of any of the Mortgaged Property,the
commencement of any suit or other legal, administrative, or arbitration
proceeding based upon the Subordinate Note or any other of the Subordinate Loan
Documents,the exercising of any banker's lien or rights of set-off or recoupment,
or the exercise of any other remedial action against Borrower, any other party
liable for any of the Subordinate Indebtedness or obligated under any of the
Subordinate Loan Documents,or the Mortgaged Property.
(f) "Enforcement Action Notice" means a written Notice from Subordinate
Mortgagee to Funding Lender, given following one or more Subordinate
Mortgage Default(s)and the expiration of any Notice or cure periods provided for
such Subordinate Mortgage Default(s) in the Subordinate Loan Documents,
setting forth in reasonable detail the Subordinate Mortgage Default(s) and the
Enforcement Actions proposed to be taken by Subordinate Mortgagee.
(g) "Funding Lender" shall mean Initial Funding Lender prior to Conversion and
Permanent Funding Lender from and after Conversion, together with their
respective successors and assigns.
(h) "Governmental Note" means the Multifamily Note delivered by the
Governmental Lender evidencing the Funding Loan.
(i) "Loss Proceeds" means all monies received or to be received under any
insurance policy, from any condemning authority, or from any other source, as a
result or any Condemnation or Casualty.
(j) "Notice"is defined in Section 6(d).
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(k) Reserved.
(1) "Senior Indebtedness" means the "Indebtedness" of Borrower as evidenced by
the Senior Loan Documents.
(m) "Senior Loan Agreement' collectively means, prior to Conversion, the Project
Loan Agreement. From and after Conversion, "Senior Loan Agreement"means
the Project Loan Agreement and/or the Continuing Covenant Agreement to be
executed by Borrower and Permanent Funding Lender at Conversion
("Continuing Covenant Agreement').
(n) "Senior Loan Documents"shall mean the"Project Loan Documents"as defined
in the Funding Loan Agreement.
(o) "Senior Mortgage Default' means any act, failure to act, event, condition, or
occurrence which constitutes,or which with the giving of Notice or the passage of
time, or both, would constitute, an "Event of Default" as defined in the
Continuing Covenant Agreement.
(p) "Senior Mortgagee" means AMEGY BANK, a Division of ZB, National
Association. When any other person or entity becomes the legal holder of the
Senior Note, such other person or entity automatically will become Senior
Mortgagee.
(q) "Senior Note" means the Project Note as defined in the Continuing Covenant
Agreement.
(r) "Subordinate Indebtedness"means all sums evidenced or secured or guaranteed
by, or otherwise due and payable to Subordinate Mortgagee pursuant to, the
Subordinate Loan Documents.
(s) "Subordinate Loan Documents" means the Subordinate Mortgage, the
Subordinate Note, the Subordinate Loan Agreement and all other documents at
any time evidencing, securing,guaranteeing,or otherwise delivered in connection
with the Subordinate Indebtedness,as the same may be amended.
(t) "Subordinate Mortgage Default"means any act,failure to act,event,condition,
or occurrence which allows(but for any contrary provision of this Agreement),or
which with the giving of Notice or the passage of time, or both, would allow(but
for any contrary provision of this Agreement), Subordinate Mortgagee to take an
Enforcement Action.
(u) "Subordinate Mortgagee"means the person or entity named as such in the first
paragraph of this Agreement and any other person or entity who becomes the
legal holder of the Subordinate Note after the date of this Agreement.
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(v) "Subordinate Note" means the promissory note or other evidence of the
Subordinate Indebtedness referred to in the Subordinate Mortgage and any
replacement of the Subordinate Note.
(w) "Surplus Cash" means, with respect to any period, any revenues of Borrower
remaining after paying,or setting aside funds for paying,all of the following:
(i) All sums due or currently required to be paid under the Senior Loan
Documents,including any Imposition Reserve Deposits.
(ii) All deposits to any replacement reserve,completion/repair reserve or other
reserve or escrow required by the Senior Loan Documents that are due or
currently payable.
(iii) All reasonable operating expenses of the Mortgaged Property, including
real estate taxes, insurance premiums, utilities, building maintenance,
painting and repairs, management fees, payroll, administrative expenses,
legal expenses and audit expenses (excluding any developer fees payable
with respect to the Mortgaged Property).
2. Subordination of Subordinate Indebtedness.
(a) The Subordinate Indebtedness is and will at all times continue to be subject and
subordinate in right of payment to the prior payment in full of the Senior
Indebtedness.
(b) Until the occurrence of a Senior Mortgage Default, Subordinate Mortgagee will
be entitled to retain for its own account all payments made on account of the
principal of and interest on the Subordinate Indebtedness in accordance with the
requirements of the Subordinate T.oan Documents; provided no such payment is
made more than 10 days in advance of its due date and provided further that no
such payment exceeds 75% of then available Surplus Cash. However,
immediately upon Subordinate Mortgagee's receipt of Notice or actual knowledge
of a Senior Mortgage Default, Subordinate Mortgagee will not accept any
payments on account of the Subordinate Indebtedness, and the provisions of
Section 2(c)of this Agreement will apply. Subordinate Mortgagee acknowledges
that a Subordinate Mortgage Default constitutes a Senior Mortgage Default.
Accordingly, upon the occurrence of a Subordinate Mortgage Default,
Subordinate Mortgagee will be deemed to have actual knowledge of a Senior
Mortgage Default.
(c) If(i) Subordinate Mortgagee receives any payment,property,or asset of any kind
or in any form on account of the Subordinate Indebtedness (including any
proceeds from any Enforcement Action)after a Senior Mortgage Default of which
Subordinate Mortgagee has actual knowledge (or is deemed to have actual
knowledge as provided in 2(b) above) or has been given Notice, or (ii)
Subordinate Mortgagee receives,voluntarily or involuntarily,by operation of law
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or otherwise, any payment, property, or asset in or in connection with any
Bankruptcy Proceeding, such payment, property, or asset will be received and
held in trust for Funding Lender. Subordinate Mortgagee will promptly remit, in
kind and properly endorsed as necessary,all such payments,properties,and assets
to Funding Lender. Funding Lender will apply any payment,asset,or property so
received from Subordinate Mortgagee to the Senior Indebtedness in such order,
amount (with respect to any asset or property other than immediately available
funds), and manner as funding bender determines in its sole and absolute
discretion.
(d) Without limiting the complete subordination of the Subordinate Indebtedness to
the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding,
upon any payment or distribution (whether in cash, property, securities, or
otherwise)to creditors (i)the Senior Indebtedness will first be paid in full in cash
before Subordinate Mortgagee will be entitled to receive any payment or other
distribution on account of or in respect of the Subordinate Indebtedness, and(ii)
until all of the Senior Indebtedness is paid in full in cash, any payment or
distribution to which Subordinate Mortgagee would be entitled but for this
Agreement (whether in cash, property, or other assets) will be made to Funding
Lender.
(e) The subordination of the Subordinate Indebtedness will continue if any payment
under the Senior Loan Documents (whether by or on behalf of Borrower, as
proceeds of security or enforcement of any right of set-off or otherwise)is for any
reason repaid or returned to Borrower or its insolvent estate, or avoided,set aside
or required to be paid to Borrower, a trustee,receiver or other similar party under
any bankruptcy,insolvency,receivership or similar law. In such event,any or all
of the Senior Indebtedness originally intended to be satisfied will be deemed to be
reinstated and outstanding to the extent of any repayment,return,or other action,
as if such payment on account of the Senior Indebtedness had not been made.
(f) In addition to the limitations set forth above, Subordinate Mortgagee agrees that
the Subordinate Indebtedness will be payable solely from not more than 75% of
Surplus Cash while the Senior Indebtedness remains outstanding.
3. Subordination of Subordinate Loan Documents.
(a) Each of the Subordinate Loan Documents is, and will at all times remain,subject
and subordinate in all respects to the liens, terms, covenants, conditions,
operations,and effects of each of the Senior Loan Documents.
(b) The subordination of the Subordinate Loan Documents and of the Subordinate
Indebtedness will apply and continue notwithstanding(i)the actual date and time
of execution, delivery, recording, filing or perfection of each of the Senior Loan
Documents and of each of the Subordinate Loan Documents, (ii) the availability
of any collateral to Senior Mortgagee or Funding Lender, including the
availability of any collateral other than the Mortgaged Property and (iii) the
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amendment and restatement of the Senior Note and the Senior Mortgage at
Conversion.
(c) By reason of, and without in any way limiting, the full subordination of the
Subordinate Indebtedness and the Subordinate Loan Documents provided for in
this Agreement, all rights and claims of Subordinate Mortgagee under the
Subordinate Loan Documents in or to all or any portion of the Mortgaged
Property are expressly subject and subordinate in all respects to the rights and
claims of Senior Mortgagee or Funding Lender under the Senior Loan Documents
in or to the Mortgaged Property.
(d) If Subordinate Mortgagee,by indemnification,subrogation or otherwise, acquires
any lien,estate,right or other interest in any of the Mortgaged Property,then that
lien, estate, right or other interest will be fully subject and subordinate to the
receipt by Senior Mortgagee or Funding lender of payment in full of the Senior
Indebtedness, and to the Senior Loan Documents, to the same extent as the
Subordinate Indebtedness and the Subordinate Loan Documents are subordinate
pursuant to this Agreement.
4. Additional Representations and Covenants.
(a) Subordinate Mortgagee represents and warrants that each of the following is true:
(i) Subordinate Mortgagee is now the owner and holder of the Subordinate
Loan Documents.
(ii) The Subordinate Loan Documents are now in full force and effect.
(iii) The Subordinate Loan Documents have not been modified or amended.
(iv) No Subordinate Mortgage Default has occurred.
(v) The current unpaid principal balance of the Subordinate Indebtedness is
$559,481.00.
(vi) No scheduled monthly payments under the Subordinate Note have been or
will be prepaid.
(vii) None of the rights of Subordinate Mortgagee under any of the Subordinate
Loan Documents are subject to the rights of any third parties, by way of
subrogation,indemnification or otherwise.
(b) Without the prior written consent of Funding Lender in each instance,
Subordinate Mortgagee will not do any of the following:
(i) Amend,modify, waive, extend,renew, or replace any provision of any of
the Subordinate Loan Documents.
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(ii) Pledge, assign, transfer, convey, or sell any interest in the Subordinate
Indebtedness or any of the Subordinate Loan Documents.
(iii) Accept any payment on account of the Subordinate Indebtedness other
than a regularly scheduled payment of interest or principal and interest
made not earlier than 10 days prior to its due date, or as expressly
authorized in Section 4(i) below and not in excess of 75% of then
available Surplus Cash.
(iv) Take any action which has the effect of increasing the Subordinate
Indebtedness.
(v) Appear in,defend or bring any action to protect Subordinate Mortgagee's
interest in the Mortgaged Property.
(vi) Take any action concerning environmental matters affecting the
Mortgaged Property.
(c) Subordinate Mortgagee will deliver to Funding Lender a copy of each Notice
received or delivered by Subordinate Mortgagee pursuant to the Subordinate Loan
Documents or in connection with the Subordinate Indebtedness, simultaneously
with Subordinate Mortgagee's delivery or receipt of such Notice. Funding Lender
will deliver to Subordinate Mortgagee in the wanner required in Section 5(b) a
copy of each Notice of a Senior Mortgage Default delivered to Borrower by
Funding Lender. Neither giving nor failing to give a Notice to Funding Lender or
Subordinate Mortgagee pursuant to this Section 4(c)will affect the validity of any
Notice given by Funding Lender or Subordinate Mortgagee to Borrower, as
between Borrower and such of Funding Lender or Subordinate Mortgagee as
provided the Notice to Borrower.
(d) Without the prior written consent of Funding Lender in each instance,
Subordinate Mortgagee will not commence, or join with any other creditor in
commencing, any Bankruptcy Proceeding. In the event of a Bankruptcy
Proceeding, Subordinate Mortgagee will not vote affirmatively in favor of any
pian of reorganization or liquidation unless Funding Lender has also voted
affirmatively in favor of such plan. In the event of any Bankruptcy Proceeding,
Subordinate Mortgagee will not contest the continued accrual of interest on the
Senior Indebtedness, in accordance with and at the rates specified in the Senior
Loan Documents,both for periods before and for periods after the commencement
of such Bankruptcy Proceedings.
(e) Whenever the Subordinate Loan Documents give Subordinate Mortgagee
approval or consent rights with respect to any matter, and a right of approval or
consent with regard to the same or substantially the same matter is also granted to
Senior Mortgagee or Funding Lender pursuant to the Senior Loan Documents or
otherwise,Funding Lender's approval or consent or failure to approve or consent,
as the case may be,will be binding on Subordinate Mortgagee. None of the other
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provisions of this Section 4 are intended to be in any way in limitation of the
provisions of this Section 4(e).
(f) All requirements pertaining to insurance under the Subordinate Loan Documents
(including requirements relating to amounts and types of coverages, deductibles
and special endorsements)will be deemed satisfied if Borrower complies with the
insurance requirements under the Senior Loan Documents and of Funding Lender.
All original policies of insurance required pursuant to the Senior Loan Documents
will be held by Funding Lender. Nothing in this Section 4(f) will preclude
Subordinate Mortgagee from requiring that it be named as a mortgagee and loss
payee,as its interest may appear,under all policies of property damage insurance
maintained by Borrower with respect to the Mortgaged Property,provided such
action does not affect the priority of payment of Loss Proceeds, or that
Subordinate Mortgagee be named as an additional insured under all policies of
liability insurance maintained by Borrower with respect to the Mortgaged
Property.
(g) In the event of a Condemnation or a Casualty,all of the following provisions will
apply:
(i) The rights of Subordinate Mortgagee (under the Subordinate Loan
Documents or otherwise) to participate in any proceeding or action
relating to a Condemnation or a Casualty, or to participate or join in any
settlement of,or to adjust,any claims resulting from a Condemnation or a
Casualty, will be and remain subordinate in all respects to Senior
Mortgagee's and Funding Lender's rights under the Senior Loan
Documents with respect thereto, and Subordinate Mortgagee will be
bound by any settlement or adjustment of a claim resulting from a
Condemnation or a Casualty made by Funding Lender.
(ii) All Loss Proceeds will be applied either to payment of the costs and
expenses of Restoration or to payment on account of the Senior
Indebtedness, as and in the manner determined by Funding Lender in its
sole discretion.
(iii) If Funding Lender applies or releases Loss Proceeds for the purposes of
Restoration of the Mortgaged Property, then Subordinate Mortgagee will
release for such purpose all of its right,title and interest, if any, in and to
such Loss Proceeds. If Funding Lender holds Loss Proceeds, or monitors
the disbursement thereof, Subordinate Mortgagee will not do so. Nothing
contained in this Agreement will be deemed to require Funding Lender to
act for or on behalf of Subordinate Mortgagee in connection with any
Restoration or to hold or monitor any Loss Proceeds in trust for or
otherwise on behalf of Subordinate Mortgagee, and all or any Loss
Proceeds may be commingled with any funds of Funding Lender.
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(iv) If Funding Lender elects to apply Loss Proceeds to payment on account of
the Senior Indebtedness, and if the application of such Loss Proceeds
results in the payment in full of the entire Senior Indebtedness, any
remaining Loss Proceeds held by Funding Lender will be paid to
Subordinate Mortgagee unless another party has asserted a claim to the
remaining Loss Proceeds.
(h) Subordinate Mortgagee will enter into attornment and non-disturbance
agreements with all tenants under commercial or retail Leases, if any, to whom
Senior Mortgagee or Funding Lender has granted attornment and non-disturbance,
on the same terms and conditions given by Senior Mortgagee or Funding Lender.
(i) Except as provided in this Section 4(i),and regardless of any contrary provision in
the Subordinate Loan Documents, Subordinate Mortgagee will not collect
payments for the purpose of escrowing for any cost or expense related to the
Mortgaged Property or for any portion of the Subordinate Indebtedness.
However, if Funding Lender is not collecting escrow payments for one or more
Impositions, Subordinate Mortgagee may collect escrow payments for such
Impositions; provided that all payments so collected by Subordinate Mortgagee
will be held in trust by Subordinate Mortgagee to be applied only to the payment
of such Impositions.
(j) Within 10 days after request by Funding Lender, Subordinate Mortgagee will
famish Funding Lender with a statement,duly acknowledged and certified setting
forth the then-current amount and terms of the Subordinate Indebtedness,
confirming that there exists no default under the Subordinate Loan Documents(or
describing any default that does exist), and certifying to such other information
with respect to the Subordinate Indebtedness as Funding Lender may request.
(k) Senior Mortgagee or Funding Lender may amend, waive, postpone, extend,
renew, replace, reduce or otherwise modify any provision of any of the Senior
Loan Documents without the necessity of obtaining the consent of or providing
Notice to Subordinate Mortgagee, and without affecting any of the provisions of
this Agreement. Notwithstanding the foregoing, neither Senior Mortgagee nor
Funding Lender may modify any provision of the Senior Loan Documents that
increases the Senior Indebtedness,except for increases in the Senior Indebtedness
that result from advances made by Senior Mortgagee or Funding Lender to protect
the security or lien priority of Senior Mortgagee or Funding Lender under the
Senior Loan Documents or to cure defaults under the Subordinate Loan
Documents.
5. Default Under Loan Documents.
(a) For a period of 90 days following delivery to Funding Lender of an Enforcement
Action Notice, Funding Lender will, subject to any applicable notice and cure
period afforded to Borrower under the Senior Loan Documents, have the right,
but not the obligation,to cure any Subordinate Mortgage Default,provided that if
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such Subordinate Mortgage Default is a non-monetary default and is not capable
of being cured within such 90-day period and Funding Lender has commenced
and is diligently pursuing such cure to completion,Funding Lender will have such
additional period of time as may be required to cure such Subordinate Mortgage
Default or until such tirne, ifever, as Funding Lender(i) discontinues its pursuit
of any cure and/or (ii) delivers to Subordinate Mortgagee Funding Lender's
written consent to the Enforcement Action described in the Enforcement Action
Notice. Neither Senior Mortgagee nor Funding Lender will be subrogated to the
rights of Subordinate Mortgagee under the Subordinate Loan Documents by
reason of Funding Lender having cured any Subordinate Mortgage Default.
However, Subordinate Mortgagee acknowledges that all amounts advanced or
expended by Funding Lender in accordance with the Senior Loan Documents or
to cure a Subordinate Mortgage Default will be added to and become a part of the
Senior Indebtedness and will be secured by the lien of the Senior Mortgage.
(b) Funding Lender will deliver to Subordinate Mortgagee a copy of any Notice sent
by Funding Lender to Borrower of a Senior Mortgage Default within 5 Business
Days of sending such Notice to Borrower. Failure of Funding Lender to send
Notice to Subordinate Mortgagee will not prevent the exercise of Funding
Lender's rights and remedies under the Senior Loan Documents. Subordinate
Mortgagee will have the right, subject to any applicable notice and cure period
afforded to Borrower under the Subordinate Loan Documents, but not the
obligation, to cure any monetary Senior Mortgage Default within 30 days
following the date of such Notice; provided, however, that Funding Lender will
be entitled during such 30-day period to continue to pursue its remedies under the
Senior Loan Documents.
Subject to any applicable notice and cure period afforded to Borrower under the
Subordinate Loan Documents, Subordinate Mortgagee may,within 90 days after
the date of the Notice, cure a non-monetary Senior Mortgage Default if during
such 90-day period, Subordinate Mortgagee keeps current all payments required
by the Senior Loan Documents. If such a non-monetary Senior Mortgage Default
creates an unacceptable level of risk relative to the Mortgaged Property,or Senior
Mortgagee's or Funding Lender's secured position relative to the Mortgaged
Property,as determined by Funding Lender in its sole discretion,then during such
90-day period Funding Lender may exercise all available rights and remedies to
protect and preserve the Mortgaged Property and the Rents, revenues and other
proceeds from the Mortgaged Property. Subordinate Mortgagee will not be
subrogated to the rights of Senior Mortgagee or Funding Lender under the Senior
Loan Documents by reason of Subordinate Mortgagee having cured any Senior
Mortgage Default. However, Senior Mortgagee and Funding Lender
acknowledge that all amounts paid by Subordinate Mortgagee to Senior
Mortgagee or Funding Lender to cure a Senior Mortgage Default will be deemed
to have been advanced by Subordinate Mortgagee pursuant to,and will be secured
by the lien of, the Subordinate Mortgage. Notwithstanding anything in this
Section 5(b) to the contrary, Subordinate Mortgagee's right to cure any Senior
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Mortgage Default will terminate immediately upon the occurrence of any
Bankruptcy Proceeding.
(c) In the event of a Subordinate Mortgage Default, Subordinate Mortgagee will not
commence any Enforcement Action until 90 days after Subordinate Mortgagee
has delivered to Funding Lender an Enforcement Action Notice with respect to
such Enforcement Action,provided that during such 90-day period or such longer
period as provided in Section 5(a),Subordinate Mortgagee will be entitled to seek
specific performance to enforce covenants and agreements of Borrower relating to
income,rent,or affordability restrictions contained in the Horne Contract,subject
to Funding Lender's right to cure a Subordinate Mortgage Default set forth in
Section 5(a). Subordinate Mortgagee may not commence any other Enforcement
Action, including any foreclosure action under the Subordinate Loan Documents,
until the earlier of(i)the expiration of such 90-day period or such longer period
as provided in Section 5(a),or(ii)the delivery by Funding Lender to Subordinate
Mortgagee of Funding Lender's written consent to such Enforcement Action by
Subordinate Mortgagee. Subordinate Mortgagee acknowledges that Funding
Lender may grant or refuse consent to Subordinate Mortgagee's Enforcement
Action in Funding Lender's sole and absolute discretion. At the expiration of
such 90-day period or such longer period as provided in Section 5(a)and,subject
to Funding Lender's right to cure set forth in Section 5(a),Subordinate Mortgagee
may commence any Enforcement Action. Any Enforcement Action on the part of
Subordinate Mortgagee will be subject to the provisions of this Agreement.
Subordinate Mortgagee acknowledges that the provisions of this Section 5(c)are
fair and reasonable under the circumstances, that Subordinate Mortgagee has
received a substantial benefit from Funding Lender having granted its consent to
the Subordinate Mortgage,and that Funding Lender would not have granted such
consent without the inclusion of these provisions in this Agreement.
(d) Senior Mortgagee or Funding Lender may pursue all rights and remedies
available to it under the Senior Loan Documents, at law, or in equity, regardless
of any Enforcement Action Notice or Enforcement Action by Subordinate
Mortgagee. No action or failure to act on the part of Senior Mortgagee or
Funding Lender in the event of a Subordinate Mortgage Default or
commencement of an Enforcement Action will constitute a waiver on the part of
Senior Mortgagee or Funding Lender of any provision of the Senior Loan
Documents or this Agreement.
(e) If the Enforcement Action taken by Subordinate Mortgagee is the appointment of
a receiver for any of the Mortgaged Property, all of the Rents,issues,profits and
proceeds collected by the receiver will be paid and applied by the receiver solely
to and for the benefit of Senior Mortgagee or Funding Lender until the Senior
Indebtedness will have been paid in full.
(f) Subordinate Mortgagee consents to and authorizes the release by Senior
Mortgagee or Funding Lender of all or any portion of the Mortgaged Property
from the lien, operation, and effect of the Senior Loan Documents. Subordinate
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Mortgagee waives to the fullest extent permitted by law, all equitable or other
rights it may have (i) in connection with the release of all or any portion of the
Mortgaged Property, (ii) to require the separate sale of any portion of the
Mortgaged Property, (iii) to require Senior Mortgagee or Funding Lender to
exhaust its remedies against all or any portion of the Mortgaged Property or any
combination of portions of the Mortgaged Property or any other collateral for the
Senior Indebtedness, or (iv) to require Senior Mortgagee or Funding Lender to
proceed against Borrower,any other party that may be liable for any of the Senior
Indebtedness (including any general partner of Borrower if Borrower is a
partnership), all or any portion of the Mortgaged Property or combination of
portions of the Mortgaged Property or any other collateral, before proceeding
against all or such portions or combination of portions of the Mortgaged Property
as Senior Mortgagee or Funding Lender determines. Subordinate Mortgagee
conscnts to and authorizes,at the option of Senior Mortgagee or Funding Lender,
the sale, either separately or together, of all or any portion of the Mortgaged
Property. Subordinate Mortgagee acknowledges that without Notice to
Subordinate Mortgagee and without affecting any of the provisions of this
Agreement, Senior Mortgagee or Funding Lender may(i) extend the time for or
waive any payment or performance under the Senior Loan Documents; (ii)
modify or amend in any respect any provision of the Senior Loan Documents;and
(iii)modify,exchange, surrender, release, and otherwise deal with any additional
collateral for the Senior Indebtedness.
(g) If any party other than Borrower(including Senior Mortgagee or Funding Lender)
acquires title to any of the Mortgaged Property pursuant to a foreclosure of, or
trustee's sale or other exercise of any power of sale under, the Senior Mortgage
conducted in accordance with applicable law,the lien,operation,and effect of the
Subordinate Mortgage and other Subordinate Loan Documents automatically will
terminate with respect to such Mortgaged Property.
6. Miscellaneous Provisions.
(a) If there is any conflict or inconsistency between the terms of the Subordinate
Loan Documents and the terms of this Agreement, then the terms of this
Agreement will control.
(b) This Agreement will be binding upon and will inure to the benefit of the
respective legal successors and permitted assigns of the parties hereto. No other
party will be entitled to any benefits hereunder, whether as a third party
beneficiary or otherwise.
(c) This Agreement does not constitute an approval by Senior Mortgagee or Funding
Lender of the terms of the Subordinate Loan Documents.
(d) Each Notice, request, demand, consent, approval or other communication
(collectively,"Notices,"and singly,a"Notice'l which is required or permitted to
be given pursuant to this Agreement will be in writing and will be deemed to have
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been duly and sufficiently given if(i)personally delivered with proof of delivery
(any Notice so delivered will be deemed to have been received at the time so
delivered), or (ii) sent by a national overnight courier service (such as FedEx)
designating earliest available delivery(any Notice so delivered will be deemed to
have been received on the next Business Day following receipt by the courier),or
(iii) sent by United States registered or certified mail, return receipt requested,
postage prepaid, at a post office regularly maintained by the United States Postal
Service (any Notice so sent will be deemed to have been received on the date of
delivery as confirmed by the return receipt),addressed to the respective parties as
follows:
(i) Notices intended for Senior Mortgagee will be addressed to:
Amegy Bank,a division of ZB,National Association
1801 Main Street,8th Floor
Houston,Texas 77002
Attention: Corporate Trust Department
Facsimile: (713)571-5010
(ii) Notices intended for Subordinate Mortgagee will be addressed to:
City of Fort Worth
Neighborhood Services Department
1000 Throckmorton Street
Fort Worth,Texas 76102
Attn:Assistant Director
(iii) Notices intended for Initial Funding Lender(prior to Conversion)will be
addressed to:
Navistone Broadmoor Instrument Purchaser LLC
5309 Transportation Blvd.
Cleveland,OH 44125
Attention: Andrew N.Tanner,CFO
Facsimile: (216)475-6100
(iv) Notices intended for Funding Lender(from and after the Conversion Date)
will be addressed to:
Jones Lang LaSalle Multifamily,LLC
3344 Peachtree Road NE,Suite 1100
Atlanta,GA 30326
Attention: Servicing Department
Any party, by Notice given pursuant to this Section, may change the person or
persons and/or address or addresses, or designate an additional person or persons
or an additional address or addresses, for its Notices, but Notice of a change of
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address will only be effective upon receipt. Neither party will refuse or reject
delivery of any Notice given in accordance with this Section.
(e) Nothing in this Agreement or in any of the Senior Loan Documents or
Subordinate Loan Documents will be deemed to constitute Senior Mortgagee or
Funding Lender as a joint venturer or partner of Subordinate Mortgagee.
(f) Upon Notice from Funding Lender, Subordinate Mortgagee will execute and
deliver such additional instruments and documents,and will take such actions, as
are required by Funding Lender in order to further evidence or implement the
provisions and intent of this Agreement.
(g) This Agreement will be governed by the laws of the State in which the Land is
located.
(h) If any one or more of the provisions contained in this Agreement, or any
application of any such provisions, is invalid, illegal, or unenforceable in any
respect, the validity, legality, enforceability, and application of the remaining
provisions contained in this Agreement will not in any way be affected or
impaired.
(i) The term of this Agreement will commence on the date of this Agreement and
will continue until the earliest to occur of the following events: (i)the payment of
all of the Senior Indebtedness;provided that this Agreement will be reinstated in
the event any payment on account of the Senior Indebtedness is avoided, set
aside,rescinded or repaid by Senior Mortgagee or Funding Lender as described in
Section 2(e) of this Agrecmcnt, (ii) the payment of all of the Subordinate
Indebtedness other than by reason of payments which Subordinate Mortgagee is
obligated to remit to Senior Mortgagee or Funding Lender pursuant to this
Agreement, (iii)the acquisition by Senior Mortgagee or Funding Lender or by a
third party purchaser of title to the Mortgaged Property pursuant to a foreclosure
of,deed in lieu of foreclosure,or trustee's sale or other exercise of a power of sale
or similar disposition under the Senior Mortgage; or (iv) with the prior written
consent of Funding Lender, without limiting the provisions of Section 5(d), the
acquisition by Subordinate Mortgagee of title to the Mortgaged Property subject
to the Senior Mortgage pursuant to a foreclosure,or a deed in lieu of foreclosure,
of(or the exercise of a power of sale under)the Subordinate Mortgage.
(j) No failure or delay on the part of any party to this Agreement in exercising any
right, power, or remedy under this Agreement will operate as a waiver of such
right, power,or remedy, nor will any single or partial exercise of any such right,
power or rernedy preclude any other or further exercise of such right, power, or
remedy or the exercise of any other right,power or remedy under this Agreement.
(k) Each party to this Agreement acknowledges that if any party fails to comply with
its obligations under this Agreement, the other parties will have all rights
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available at law and in equity, including the right to obtain specific performance
of the obligations of such defaulting party and injunctive relief.
(1) Nothing in this Agreement is intended, nor will it be construed, to in any way
limit the exercise by Subordinate Mortgagee of its governmental powers
(including police, regulatory and taxing powers) with respect to Borrower or the
Mortgaged Property to the same extent as if it were not a party to this Agreement
or the transactions contemplated by this Agreement.
(m) This Agreement shall inure to the benefit of any subsequent holder of the Senior
Indebtedness.
(n) This Agreement may be amended, changed, modified, altered or terminated only
by a written instrument or written instruments signed by the parties to this
Agreement.
(o) This Agreement may be executed in two or more counterparts,each of which will
be deemed an original but all of which together will constitute one and the same
instrument.
(p) Notwithstanding anything herein to the contrary,pursuant to the Senior Mortgage
and Section 6.03 of the Funding Loan Agreement, all acts, consents, approvals
and undertakings of Senior Mortgagee hereunder shall be solely at the written
direction of the Funding Lender. The patties acknowledge and agree that Funding
Lender is a third party beneficiary of this Agreement,with full rights as such.
[Signature and acknowledgment pages follow]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first above written.
SENIOR MORTGAGEE:
AMGY BANK,a division of ZB,National
Association,as Fiscal Agent
By:A &AJLu�
Deh*c ward,vice President
1.
ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF Aamrn5 §
On this the �3r"- day of A10Y4 kkr. 2016, before me, the undersigned Notary
Public, personalty appeared Deirdre Ward,who admowledged to be a Vice President of Amegy
Bank,a division of ZB, National Association,and that she, as such officer,being duly authorized
to do so, executed the foregoing Agreement for the purposes therein contained by signing her
name as such officer.
IN WITNESS WHEREOF,I have hereunto set my hand and official seal.
ASHLEY REED
NOTARY PUBLIC Notary Public d4w State of Telma
STATE OF TEXAS
MY COMM.EXP.11/O 8
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SUBORI)INATE MORTGAGEE:
CJTY OF FORT WORTH
Y
Name:Fernando Costa
Title:Assistant City Manager
ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF TARRANT §
On this the �_ day of�Jpw 1. , 2016, before me, the undersigned Notary
Public, personally appeared Fernando Costa, who acknowledged to be the Assistant City
Manager of the City of Fort Worth,Texas, and that she,as such officer, being duly authorized to
do so, executed the foregoing Agreement for the purposes therein contained by signing her
name as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
rK,j"""*4 TRIKINYA L JOHNSON
EE(,
Notxry Public,Stet. C'
of TYxas Notary blic a State of Texas
° Comm.Expires 04-17.2018
t-fr Notary ID 1238832 0
Attested by: OF•FO/ T�
r � •
Allison Tidwell,Assistant to the Clty SOCA
• * OFFICIAL RECORD
AS
CITY SECRETARY
FT.WORTM,TX
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CONSUN'T OF BORROWER
Borrower acknowledges receipt of a copy of this Subordination Agreement, dated October
2016, by and among AMEGY BANK and CITY OF FORT WORTH and consents to the
agreement of the parties set forth in this Agreement.
Borrower:
THE BROADMOOR AT WESTERN HILLS LTD.,
a Texas limited partnership
By:The Broadmoor at Western Hills GP LLC,
a Texas limited liability company,
its general partner
By-Fort Worth Housing Finance Corporation,
a Texas housing finance corporation,
its sole member
By: t
ubrey Tbagard,Ass4takt General Manager
ACKNOWLEDGMENT
THE STATE OF TEXAS §
g
COUNTY OF TARRANT §
On this the'ef?G day of 2016, before me, the undersigned Notary Public,
personally appeared Aubrey Thagard, who acknowledged to be the Assistant General Manager
of the Fort Worth Housing Finance Corporation,the sole member of The Broadmoor at Western
Hills GP LLC,the general partner of The Broadmoor at Western Hills Ltd.and that she,as such
officer, being duly authorized to do so, executed the foregoing Agreement for the purposes
therein contained by signing her name in such capacity.
IN WITNESS WHEREOF,I have hereunto set may hand and official seal.
wSTMK;E I>QIISE 1hAlWutS .s
My"fty ID/130!133614 Notary Publico the State of Texas
Uphrilw 23,1121
(No .�•����'1� BONSte)
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EXHIBIT A
LEGAL DESCRIPTION
BEING a tract of land situated in the Hays Covington Survey, Abstract No. 256, City of Fort
Worth,Tarrant County, Texas,being all of Lot 1,Block 1,The Broadmoor at Western Hills,an
addition to the City of Fort Worth according to the plat recorded in County Clerk's Document
Number D216247626,Plat Records, Tarrant County,Texas, being a part of that certain tract of
land described as Tract Seventeen II by deed to Land Rover, LTD., recorded in Volume 9806,
Page 1448, Deed Records, Tan-ant County, Texas, said tract of land bring more particularly
described by metes and bounds as follows:
BEGINNING at a 5/8"iron rod with yellow cap stamped"DUNAWAY ASSOCIATES,LP"set,
(hereinafter called 5/8" YCIR) for the northeast corner of Lot 21, Block 19, Broadmoor, an
addition to the City of Fort Worth,according to the plat recorded in Volume 388-E,Page 20,Plat
Records,Tarrant County, Texas,in the west right-of-way line of Broadmoor Drive (a 60' width
public right-of-way),recorded in Volume 3501,Page 127,Deed Records,Tarrant County,Texas
and the southeast comer of said Land Rover,LTD tract Seventeen II;
THENCE North 83°16'28"West,departing the west right-of-way line of said Broadmoor Drive,
with the north line of said,Block 19, Broadmoor,a distance of 1,292.66 feet to a 5/8" YCIR set
for the northwest corner of Lot 1,said Block 19,Broadmoor Addition,in the east line of Block 7,
Western Hills Addition Section No. 1,an addition to the City of Fort Worth,according to the plat
recorded in Volume 388-43,Page 18,Plat Records,Tan-ant County,Texas;
THENCE North 00044'55"West,departing the north line of said Block 19,Broadmoor Addition,
with the east line of said Block 7, Western Hills Addition, a passing distance of 442.36 feet to
the northeast corner of said Block 7, Western Hills Addition,a passing distance of 632.17 feet to
the northeast corner of Lot 5-R,Block 12,Western Hills Addition,an addition to the City of Fort
Worth,according to the plat recorded in Volume 388-98,Page 52,Plat Records,Tarrant County,
Texas, the southeast corner of Lot 1, Block 95, Western Hills Addition Section No. VII, an
addition to the City of Fort Worth,according the plat recorded in Volume 388-45, Page 81,Plat
Records,Tarrant County,Texas,continuing with east line of said Lot 1,Block 95,Western Hills
Addition for a total distance of 858.41 feet to a 3/4" iron rod found for the southwest comer of
Lot D,Block 6,West Plaza Addition,an addition to the City of Fort Worth,according to the plat
recorded in Volume 388-44,Page 97,Plat Records,Tarrant County,Texas;
THENCE North 89053'09" East, departing the east line of said Lot 1,Block 95, Western Hills
Addition,with the south line Lot D,Block 6,a distance of 341.49 feet to a 5/8"YCIR set for the
southeast comer of said Lot D,Block 6,West Plaza Addition;
THENCE South 10°08'15" East, departing the south line of said Lot D, Block 6, West Plaza
Addition,a distance of 70.66 feet to a point from for the beginning of a non-tangent curve to the
left, from which the radius point bears North 80°3715"East, a distance of 60.00 feet, having a
central angle of 257°49'56", a radius of 60.00 feet and a chord bearing and distance of North
41042'17"East-93.37 feet;
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THENCE with said non-tangent curve to the left in a northeasterly direction, an arc length of
270.00 feet to a 5/8"YCIR set in the south line of said Lot B,Block 5,West Plaza Addition;
THENCE North 89°53'09"East,with the south line of said Lot B,Block 5,West Plaza Addition,
a distance of 632.98feet to a 5/8"YCIR set for the southeast corner of said Lot B,Block 5,West
PlazaAddition;
THENCE South 07°14'51" East, departing the south line of said Lot B, Block 5, West Plaza
Addition and with the west line of Lot A, Block 5, said West Plaza Addition, a distance of
155.71 feet to a point, from which a 1/2"iron rod found bears South 67°51'51"East, a distance
of 0.34 feet;
THENCE South 89°12'51"East,with the south line of said Lot A,Block 5,West Plaza Addition,
a distance of 212.89 feet to a 5/8" YCIR set in the west right-of-way line of said Broadmoor
Drive;
THENCE South 15002'25" East, with the west right-of-way line of said Broadmoor Drive, a
distance of 8.99 feet to a 1/2"iron rod found for the beginning of a curve to the right having a
central angle of 21°40'00", a radius of 1,537.70 feet and a chord bearing and distance of South
0401725"East-578.03 feet;
THENCE continuing with the west right-of-way line of said Broadmoor Drive and with said
curve to the right in a southeasterly direction,an arc length of 581.49 feet to a 5/8"YCIR set;
THENCE South 06°37'35" West,a distance of 271.09 feet to the POINT OF BEGINNING and
containing a calculated area of 1,176,714 square feet or 27.014 acres of land.
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