Loading...
HomeMy WebLinkAboutContract 36633-CA4 pQ� �oA CITY SECRETARY CONTRACT No. 310(o -CE}� CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT AMONG CITY OF FORT WORTH AND CRP CYPRESS WEST 7TH RESIDENTIAL,L.P.AND CARLYLE/CYPRESS WEST 7TH H,LP (CITY SECRETARY CONTRACT NO.36633,AS AMENDED) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF AMENDED AND RESTATED ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Consent") is entered into by and between the CITY OF FORT WORTH,a home rule municipal corporation organized under the laws of the State of Texas ("City"); and CRP CYPRESS WEST 7TH RESIDENTIAL, L.P. and CARLYLE/CYPRESS WEST 7TH II, LP, each a Delaware limited partnership (individually, collectively,jointly and severally,"Assignor"); and MARATHON REAL ESTATE DEBT FUND,LP, a Delaware limited partnership(together with its successors and assigns,"Lender"). RECITALS The City, Assignor 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 Assignor are now parties to that certain Economic Development Program Agreement dated as of February 15, 2008 (City Secretary Contract No. 36633), as amended by Amendment No. 1 dated May 25, 2011 (City Secretary Contract No. 36633-A1),Amendment No. 2 dated November 9, 2011 (City Secretary Contract No. 36633-A2), Amendment No. 3 dated January 29, 2018 (City Secretary Contract No. 36633-A3) (collectively, the "EDPA"), and as assigned by Developer to Assignor pursuant to that certain Assignment of Economic Development Program Agreement dated April [1 , 2019 (City Secretary Contract No. 36633-CA3) pursuant to which the City has agreed to pay Assignor certain Program Grants in an amount up to and not to exceed$31,280,000.00 (subject to and as more specifically outlined in the EDPA) in return for the construction of a mixed-use development located in the cultural district of the City, as more specifically outlined in the EDPA (the "Development").The EDPA is a public document on file in the City Secretary's Office. B. Section 10 of the EDPA allows Assignor 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 Assignor and the financial institution or other lender first execute a written agreement with the City governing the rights and obligations of the City, Assignor, and the financial institution or other lender with respect to such security interest. C. Assignor wishes to obtain a loan from Lender in order to refinance its ownership interest in the Development (the "Loan"). As security for the Loan, certain agreements between Assignor and Lender governing the Loan and dated April U, 2019, including, but not limited to, that certain Loan Agreement, that certain Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, that certain Promissory Note (collectively, the"Loan Documents") require that Assignor assign, transfer and convey to Lender all of Assignor's rights and interests in and to the EDPA until such time as Assignor has fully satisfied all 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. OFFICIAL RECORD CITY SECRETARY 67718159.7 FT. WORTH,TX AGREEMENT 1. The City, Assignor 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 Assignor 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 Assignor under the EDPA. 3. In the event that the City is required by the EDPA to provide any kind of written notice to Assignor, including notice of breach or default by Assignor, 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: Lender: Marathon Real Estate Debt Fund,LP c/o Marathon Asset Management,L.P. One Bryant Park, 38th Floor New York,New York 10036 Attention: Craig Thaler with a copy to: Polsinelli PC 2950 N.Harwood Street, Suite 2100 Dallas,Texas 75201 Attention: John T.Duncan III or such other address(es)as Lender may advise City from time to time. 4. If Assignor 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 Assignor imposed by the EDPA and that the City will accept Lender's performance of the same as if Assignor 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 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 Assignor's interest in the Assignor property 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 exercise good faith efforts to first provide written notice to the City of such intent (a "Notice"). Lender shall copy Assignor on the Notice and deliver such Notice to Assignor 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 Assignor 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 2 67718159.7 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 Assignor 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 the EDPA(as supplemented by this Consent)and the Loan Documents,the EDPA(as supplemented by this Consent)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. 8. Once Assignor has 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 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, Assignor 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. 13. If Assignor consists of more than one person or party, the obligations and liabilities of Assignor shall be joint and several with the other Assignors. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] 3 67718159.7 CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: By: Peter Vaky Ad,'j Assistant City Manager Deputy City Attorney Date:April,2019 M&C: none required Form 1295: none EggpiMd CRP CYPRESS WEST 7TH RESIDENTIAL,L.P., Gfi a Delaware limited partnership A Sted by. 0 By: CRP Cypress West 7th Residential GP,L.L.C., a Delaware limited liability company, cq its General Partner kary yser, ty Se By: Name: 'M daer RAA410'• Title: 4vAW1-1'4 P4-'C-- Date:April 2019 CARLYLE/CYPRESS WEST 7TJEI A LP, a Delaware limited partnership By: Carlyle/Cypress West 7th GP II,ILLC, a Delaware limited liability company, its General Partner By: Name: Title: 4AD(l 2rC t ppe-r-, Date:April_,2019 MARATHON REAL ESTATE DEBT FUND,LP, a Delaware limited partnership By: Marathon Real Estate Debt Fund GP,LLC,a Delaware limited liability company,its General Partner By: Name: Title: Date:April ,2019 OFFICIAL RECORD 67718159.7 [SIGNATURE PAGE TO CONSENT TO ASSIGNMENT] CITY SECRETARY FT. WORTH,TX CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: 13y: Susan Alanis Peter Vaky Assistant City Manager Deputy City Attorney Date:April_ 2019 MdtC tie raouiersd Form 1295; none rccrdmd CRP CYPRESS WEST 7TH RESIDENTIAL,L.P., a Delaware limited partnership By: CRP Cypress West 7th Residential GP,L.L.C., a Delaware limited liability company, its General Partner By: Name: Title: Date:April_ ,2019 CARLYLE/CYPRESS WEST 7TH II,LP, a Delaware limited partnership By: Carlyle/Cypress West 7th GP II,LLC, a Delaware limited liability company, its General Partner By: Name: Title: Date:April ,2019 MARATHON REAL ESTATE DEBT FUND,LP, a Delaware limited partnership By: Marathon Real Estate Debt Fund GP,LLC,a Delaware limited liabili m any,its General Partner By: Name: Title: _ A- Date:April ,2019 [SIGNATURE PAGE TO CONSENT TO ASSIGNMENT] 677181S9 OFFICIAL RECORD CITY SECRETARY FT WORTH, TX