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Home My WebLink AboutContract 52059-CA1 03/27/19 CITY SECRETARY 8:34 AM CONTRACT N0. 5Q D59-CA 1 CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF CERTAIN RIGHTS UNDER ENHANCED COMMUNITY FACILITIES AGREEMENT— STREETSCAPE IMPROVEMENTS BETWEEN CITY OF FORT WORTH AND FORT WORTH HERITAGE DEVELOPMENT, LLC (CITY SECRETARY CONTRACT NO. 52059-CAI) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ENHANCED COMMUNITY FACILITIES AGREEMENT — STREETSCAPE IMPROVEMENTS (this "Consent") is entered into by and among the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; and FORT WORTH HERITAGE DEVELOPMENT, LLC ("Developer"), a Texas limited liability company; and COMERICA BANK("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. The City and Developer previously entered into that certain Enhanced Community Facilities Agreement — Streetscape Improvements, City Secretary Contract No. 52059, (the"Streetscape ECFA")pursuant to which Developer agreed to construct certain streetscape infrastructure and the City agreed to reimburse Developer for certain costs, as more specifically outlined in the Streetscape ECFA. B. Section W of the Streetscape ECFA allows Developer to assign its rights and obligations under the Streetscape ECFA (including Developer's right to receive the Streetscape ECFA Payment)to a financial institution or other lender for purposes of granting a security interest in the Project and/or the Streetscape ECFA Payment, as defined therein, to such financial institution or other lender, 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 $16,500,000.00 loan from Lender (the "Loan") in order to provide Developer with working capital to be used, in whole or in part, in connection with the Project. As security for the Loan, certain agreements between Developer and Lender governing the Loan and dated June 29, 2018, including, but not limited to, a Credit Agreement, a Draw-To Note and a Security Agreement (collectively, the "Loan Documents") require that Developer collaterally assign to Lender all rights of Developer to receive payment of the Streetscape ECFA Payment under the Streetscape ECFA 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 Streetscape ECFA Payment(the "Assignment"). D. The City is willing to consent to the Assignment specifically in accordance with the terms and conditions of this Consent. CONSENT TO ASSIGNMENT ENHANCED COMMUNITY ®fPl€AAL RECORD FACILITIES AGREEMENT-STREETSCAPE IMPROVEMENTS CITY SECRETARY FT WORTH,TX 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 Streetscape ECFA. 3. The City shall provide copies to Lender of all notices provided to Developer pursuant to the Streetscape ECFA, including notice of breach or default by Developer, addressed to the following,by certified mail,postage prepaid, or by hand delivery: Jonathan R. Ward,Vice President-Western Market Commercial Real Estate Comerica Bank 611 Anton Blvd.,4h Floor Costa Mesa, CA 92626 or such other address(es) as Lender may advise City from time t4 time in writing. 4. Unless and until Lender notifies the City that Developer has repaid the Loan in full and has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the Streetscape ECFA Payment, the City shall, notwithstanding any contrary or conflicting instructions the City may receive from Developer with respect thereto, make the Streetscape ECFA Payment, as and when due under the Streetscape ECFA, only by wire transfer to Developer's blocked account maintained with Lender (the "CFA Deposit Account")in strict accordance with the wiring instructions attached hereto as Exhibit A. 5. If Developer fails to cure any default under the StXeetscape ECFA, 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 StreetscaGpe ECFA to perform any of the obligations or requirements of Developer imposed by the Streetscape ECFA 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 c4nnot be cured within such time, Lender, its agents or designees, shall have such additional time a.�may be reasonably necessary if within such time period Lender has commenced and is diligently pursuing the remedies to cure such default. Nothing contained herein shall obligate Lender to cure any default by Developer under the Streetscape ECFA. 6. If at any time Lender intends to exercise any of its remedies under the Loan Documents with respect to the Assignment,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 CONSENT TO ASSIGNMENT ENHANCED COMMUNITY Page 2 of 7 FACILITIES AGREEMENT—STREETSCAPE IMPROVEMENTS Notice to the City, and Lender shall represent in the Notice that it has done so. If, on the date the City receives the Notice, Developer is entitled to payment by the City of the Streetscape ECFA Payment in accordance with the Streetscape ECFA, the City shall pay the Streetscape ECFA Payment directly to Lender at the address for Lender set forth in Section 3 above, rather than making the Streetscape ECFA Payment to Developer. Lender shall have no obligation to assume the obligations of Developer under the Streetscape ECFA. However, if additional actions by Developer pursuant to the Streetscape ECFA are required in order to be entitled to the Streetscape ECFA Payment, Lender understands and agrees that the City shall not be bound to pay Lender all or any portion of the Streetscape ECFA Payment pursuant to the Streetscape ECFA unless Lender enters into a written agreement with the City to assume and be bound by all covenants and obligations of Developer under the Streetscape ECFA. If Lender enters into an assumption agreement with the City, then City shall make the Streetscape ECFA Payment in accordance with the Streetscape ECFA directly to Lender at the address for Lender set forth in Section 3 above, rather than making such Streetscape ECFA Payment to Developer. 7. Any Notice to be delivered by Lender to the City and/or Developer pursuant to Section 6, above, shall be addressed as follows: City: Developer: City of Fort Worth Fort Worth Heritage Development, LLC Attn: City Manager Exchange Building 200 Texas St 131 East Exchange Ave., Suite 212 Fort Worth, TX 76102 Fort Worth, TX 76164 with copies to: with a copy to: The City Attorney and Director of Economic Majestic Realty Co. Development at the same address Attn: Craig Cavileer, Executive Vice President 13191 Crossroads Parkway N., Suite 600 City of Industry, CA 91746 8. In the event of any conflict between this Consent and the Streetscape ECFA or any of the Loan Documents, this Consent shall control. 9. 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 Streetscape ECFA. 10. 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 Streetscape ECFA 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. 11. 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 CONSENT TO ASSIGNMENT ENHANCED COMMUNITY Page 3 of 7 FACILITIES AGREEMENT—STREETSCAPE IMPROVEMENTS in Tarrant County,Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. Capitalized terms used but not specifically defined in this Consent shall have the meanings ascribed to them in the Streetscape ECFA. 12. 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. 13. Developer waives all claims against the City for payment of the Streetscape ECFA Payment to Lender in accordance with Section 4 and Section 6. 14. This Consent shall be effective on the later date as of which all parties have executed it. This Consent maybe 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 ASSIGNMENT ENHANCED COMMUNITY Page 4 of 7 FACILITIES AGREEMENT—STREETSCAPE IMPROVEMENTS CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: Jesus J.Chapa(Mar 25,2019) By Richard A.McCracken(Mar 25,2019) Jesus J. Chapa Richard A. McCracken Assistant City Manager Assistant City Attorney Date: Mar 25,2019 M&C: none required Recommended by: ULy/ai7l By: Robert Sturns(Mar 25,2019) Robert Sturns, Director Economic Development Department Contract Compliance Manager: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Michael Hennig(Mar 25,2019) Name: Michael Hennig Title: Business Development Coordinator FORT., ATTEST: �;•'' .� Mary J.K r(Ma ,2019) Mary Ka ser/Ronald Gonzales City Secretary/Assistant City Secretary •••.� )(Q�5 FFT. WORTH, ECORD CONSENT TO ASSIGNMENT ENHANCED COMMUNITY ETARY FACILITIES AGREEMENT-STREETSCAPE IMPROVEMENTS TX FORT WORTH HERITAGE DEVELOPMENT, LLC, a Texas limited liability company By: Majestic- Stockyards Investor, LLC, a Delaware limited liability company, its managing member &. d;.p PA& By: EDWARD P.ROSKI(Mar 21,2019) Edward P. Roski, its authorized representative Date: Mar 21,2019 Approved by: Hickman Investments, Ltd., as an additional Member in Fort Worth Heritage Development, LLC By: BBH GENPAR, LLC, a Texas limited liability company and its general partner: Brad fffGKmAn By. Brad Hickman(Mar 22,2019) J Brad Hickman Executive Vice President Date: Mar 22,2019 COMERICA BANK By: S than Ward(Mar 22,2019) onathan Ward its Vice President-Western Market OFFiGAL RECORD' CONSENT TO ASSIGNMENT ENHANCED COMMUNITY �IPag�(�nL7 FACILITIES AGREEMENT-STREETSCAPE IMPROVEMENTS Y" LRETAR FT. WORTH,TX Exhibit A Wiring Instructions for CFA Deposit Account Comerica Bank 611 Anton Blvd. Costa Mesa, CA 92626 Attn: Teri Kaneen 714-424-3839 Wire Department: 888-242-0579 Routing Number: 121137522 Account Number: 1895167326 Customer Name: Fort Worth Heritage Development, LLC CONSENT TO ASSIGNMENT ENHANCED COMMUNITY Page 7 of 7 FACILITIES AGREEMENT—STREETSCAPE IMPROVEMENTS