HomeMy WebLinkAboutContract 44750-CA2 CITY SECRETARY
CONTRACT NO.o!-}�'7s O-Cly a
CONSENT TO ASSIGNMENT
to FOR SECURITY PURPOSES OF
TAX ABATEMENT AGREEMENT
BETWEEN CITY OF FORT WORTH AND
AM INT WEST 7TH OWNER, LLC
(CITY SECRETARY CONTRACT NO. 44750)
This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF TAX
ABATEMENT 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 AM INT WEST 7TH OWNER, LLC ("Developer"), a
Delaware limited liability company; and BERKELEY POINT CAPITAL LLC, a
Delaware limited liability company doing business as NEWMARK KNIGHT FRANK
("Lender").
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. As of August 27, 2013,the City and Elan West 7th, L.P., a Delaware limited
partnership("Elan")entered into that certain Tax Abatement Agreement on file in the City
Secretary's Office as City Secretary Contract No. 44750 (the "Agreement") pursuant to
which Elan agreed to develop a certain 5.1 acres of property in the City (described and
defined in the Agreement as the "Property") into a multi-family project, as more
specifically outlined in the Agreement (the "Development"). The Agreement
subsequently was assigned by Elan to Developer pursuant to City Secretary Contract No.
44750-CAL
B. Section 12 of the Agreement allows Developer to assign its rights and
obligations under the Agreement to a financial institution or other lender for purposes of
granting a security interest in the Land and/or Project Improvements 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. Developer wishes to obtain a loan from Lender in order to finance the
purchase of the Development (the "Loan"). As security for the Loan, certain agreements
between Developer and Lender governing the Loan and dated ,
including, but not limited to, that certain Loan Agreement and that certain Multifamily
Note (Floating Rate), and that certain Multifamily Deed of Trust, Assignment of Rents,
Security Agreement and Fixture filing (collectively, the "Loan Documents") require that
Developer assign, transfer and convey to Lender all of Developer's rights, haterest in-
and
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Consent to Collateral Assignment of Tax Abatement Agreement(CSC No.44750)
between City of Fort Worth,AM INT West 7th Owner,LLC,and Newmark Knight Frank SECRETARY
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to the Agreement until such time as Developer has fully satisfied all duties and obligations
set forth in the Loan Documents that are necessary to discharge Lender's security interest
in the Agreement (the "Assignment").
D. Lender intends to assign its security interest in the Agreement, as governed
by this Consent, to the Federal Home Loan Mortgage Corporation ("Freddie Mac"), and
Freddie Mac intends to securitize the Loan or place the Loan in trust (collectively, the
"Subsequent Intended Assignments").
E. The City is willing to consent to the Assignment, and to the Subsequent
Intended Assignments, 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,and, subject to Section 6 of this Consent,in the event Lender acquires
title to the Property (whether by foreclosure, deed-in-lieu of foreclosure, or the
appointment of a receiver),the City hereby acknowledges it will consent to the assignment
of all of Developer's right,title, and interest in the Agreement to Lender. Notwithstanding
the foregoing, 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 Agreement.
3. The City hereby consents to the Subsequent Intended Assignments at the request of
Developer and Lender, as securitization of the Loan or for placement of the Loan in trust.
Notwithstanding such consent, except as specifically set forth in Sections 4, 5, 8 and 9 of
this Consent, the City will have no direct contractual obligations to Freddie Mac or its
successors or assigns (collectively, the "Intended Subsequent Assignees"), either under
this Consent or the Agreement, unless the City and the applicable Intended Subsequent
Assignee seeking to enforce such obligation enter into a written agreement on substantially
similar terms as those set forth in this Consent, including without limitation the
requirements set forth in Section 6.
4. In the event that the City is required by the Agreement 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 (or its successors or assigns),
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Consent to Collateral Assignment of Tax Abatement Agreement(CSC No.44750)
between City of Fort Worth,AM INT West 7th Owner,LLC,and Newmark Knight Frank
37692802v2
addressed to the following, or such other party or address as Lender (or its successors or
assigns) designates in writing, by certified mail,postage prepaid, or by hand delivery:
BERKELEY POINT CAPITAL LLC, D/B/A NEWMARK KNIGHT FRANK
225 Franklin Street, Suite 1800
Boston, Massachusetts 02110
Attention: Director Loan Servicing
or such other address(es) as Lender (or its successors or assigns) may advise City from
time to time.
5. If Developer fails to cure any default under the Agreement, the City agrees that
Lender or its successors or assigns shall have an additional thirty (30) calendar days or
such greater time as may specifically be provided under the Agreement to perform any of
the obligations or requirements of Developer imposed by the Agreement and that the City
will accept Lender's (or its successor's or assigns') 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 (or its successors or assigns)
shall have such additional time as may be reasonably necessary if within such time period
Lender (or its successors or assigns) has commenced and is diligently pursuing the
remedies to cure such default, including, without limitation, such time as may be required
for Lender (or its successors or assigns) to gain possession of Developer's interest in the
Property and the Development pursuant to the terms of the Loan Documents.
6. Notwithstanding anything to the contrary herein, if Lender exercises any
foreclosure rights under the Loan Documents, the City will not be obligated to continue
granting the Abatement under the Agreement unless Lender enters into a written agreement
with the City to assume and be bound by all covenants and obligations of Developer under
the Agreement. In addition, Lender understands and agrees that if Lender wishes to sell
all or any portion of the Land or Project Improvements to a third party following Lender's
exercise of any foreclosure rights under the Loan Documents, the City shall not be bound
to grant the Abatement under the Agreement to such third party unless Lender and such
third party comply with the procedure for assignment set forth in Section 10 of the
Agreement, 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 Agreement. In the event that the Abatement is withheld by the City pursuant to this
Section 6 in any given year, any rights to receipt of the Abatement in any such year is
hereby waived, and the Abatement Term shall in no way be affected. For the avoidance of
doubt, the provisions of this Section 6 will apply to any Intended Subsequent Assignee in
the same manner as they apply to Lender.
7. Any actions by Lender or an Intended Subsequent Assignee not specifically
authorized in this Consent or other written agreement by and between the City and Lender,
including, but not limited to, foreclosure and sale of the Property to a third party without
the City's consent in accordance with Section 12 of the Agreement,will constitute an event
of default under the applicable provisions of Section 8 of the Agreement.
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Consent to Collateral Assignment of Tax Abatement Agreement(CSC No.44750)
between City of Fort Worth,AM INT West 7th Owner,LLC,and Newmark Knight Frank
37692802v2
8. Notwithstanding anything in the Agreement to the contrary, with respect to Lender
and each Intended Subsequent Assignee, (i) such party's liability under the Agreement
shall be limited solely to the period during which such party has acquired title to the
Property (whether by foreclosure, deed-in-lieu of foreclosure, or the appointment of a
receiver) and(ii) such party shall not have any liability under the Agreement(specifically,
for the repayment of any amount of the Abatement due to the City pursuant to Section 8.3
of the Agreement) resulting from actions occurring during the period that any other owner
of the Property owns the Property.
9. Each Intended Subsequent Assignee shall be deemed a third-party beneficiary of
this Consent.
10. In the event of any conflict between this Consent and the Agreement 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 Agreement and any of the Loan Documents, the Agreement shall
control.
11. 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 Agreement.
12. Once Developer has fully satisfied all duties and obligations set forth in the Loan
Documents that are necessary to discharge Lender's security interest in the Agreement 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.
13. 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
located in Tarrant County, Texas or in the United States District Court for the Northern
District of Texas, Fort Worth Division.
14. Capitalized terms used but not specifically defined in this Consent shall have the
meanings ascribed to them in the Agreement.
15. 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.
16. 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
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Consent to Collateral Assignment of Tax Abatement Agreement(CSC No.44750)
between City of Fort Worth,AM INT West 7th Owner,LLC,and Newmark Knight Frank
37692802v2
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]
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Consent to Collateral Assignment of Tax Abatement Agreement(CSC No.44750)
between City of Fort Worth,AM INT West 7th Owner,LLC,and Newmark Knight Frank
37692802v2
CITY OF FORT WORTH: APPROVED AS TO FORM
AND LEGALITY:
By; By:` �nyYlu3"
Su6A Alanis Peter Vaky VkelurO� kf�,mo5
Assistant City Manager Deputy City Attorney Sy-
Date: a I Lid M&C: none required
Form 1295: none required
! FORTr
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AM INT WEST 7 OWNER, LLC, AtteSW
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a Delaware limited liability company: y^ U S
B y: M J. Ira r, qty Sere
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Name:
Title:
Date:
BERKELEY POINT CAPITAL LLC, D/B/A
NEWMARK KNIGHT FRANK, a Delaware
limited liability company
By:
eidi Rua
Director
Date:
OFFICIAL RECORD
Page 6 CITY SECRETARY
Consent to Collateral Assignment of Tax Abatement Agreement(CSC No.44750) FT WORTH,TX
between City of Fort Worth,AM INT West 7th Owner,LLC,and Newmark Knight Frank --
37692802v2
CITY OF FORT WORTH: APPROVED AS TO FORM
AND LEGALITY:
By: By:
Susan Alanis Peter Vaky
Assistant City Manager Deputy City Attorney
Date: M&C: none required
Form 1295: none required
AM INT WEST 7TH OWNER, LLC,
a Delaware limited liabil' y company:
By:
. '44#4�
Name:iL• /Nt/�]Uel
Title: Presi aen-r
Date:
BERKELEY POINT CAPITAL LLC,
a Delaware limited liability company
doing business as Newmark Knight Frank:
By:
Name:
Title:
Date:
Page 6 OFFICIAL RECORD
Consent to Collateral Assignment of Tax Abatement Agreement(CSC No.44750)
between City of Fort Worth,AM INT West 7th Owner,LLC,and Newmark Knight Frank CITY SECRETARY
37692802v2 FT WORTH,TX