HomeMy WebLinkAboutContract 36633-CA2 CITY SECRETARY,
CONTRACT N0. 0 U ' Z
CONSENT TO ASSIGNMENT
FOR SECURITY PURPOSES OF
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
BETWEEN CITY OF FORT WORTH AND
CARLYLE/CYPRESS WEST 7TH,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 ("City"), a home rule
municipal corporation organized under the laws of the State of Texas; and
CARLYLE/CYPRESS WEST 7 h, LP, a Delaware limited partnership ("Developer"); and
CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York Branch (in
such capacity, "Administrative Agent").
RECITALS
The City, Developer and Administrative Agent 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 Economic
Development Program Agreement, dated as of February 15, 2008, as amended by that certain
Amendment No. 1 to Economic Development Program Agreement, dated as of May 25, 2011,
and as amended by that certain Amendment No. 2 to Economic Development Program
Agreement, dated as of November 21, 2011 ("EDPA") pursuant to which the City agreed to pay
Developer certain Program Grants in an amount up to and not to exceed $31,280,000.00 (as more
specifically outlined in the EDPA) in return for Developer's construction of a mixed-use
development located in cultural district of the City, as more specifically outlined in the EDPA
(the "Development"). The EDPA comprises public documents on file in the City Secretary's
Office as City Secretary Contract Nos. 36633, 36633-A1 and 36633-A2.
B. Section 10 of the EDPA allows Developer to assign its rights and obligations
rrnn under the EDPA to a financial institution or other lender for purposes of granting a security
m interest in the Development and/or Development Property without the approval of the City
:Z Council, provided that Developer and the financial institution or other lender first execute a
o 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. The City,
z Developer and General Electric Capital Corporation ("GECC") previously entered into that
certain Consent to Assignment for Security Purposes of the EDPA, dated on or about June 6,
0 2011 and on file in the City Secretary's Office as City Secretary Contract No. 36633-CAI (the
"GE Collateral Assignment Consent").
Page 1 of 6 OFFICIAL RECORD
Consent to Assignment for Security Purposes
Economic Development Program Agreement between City of Fort Worth and Carlyle/Cypress West 7`s,LP CITY SECRETARY
(City Secretary Contract No.36633,as amended)
709242984 14450537 FT. WORTH, TX
C. Developer now wishes to obtain a loan from Administrative Agent in order to
refinance that certain real property commonly known as "West 7th" and located at 2821 West 7th
Street, City of Fort Worth, County of Tarrant, Texas (the "Loan"). As security for the Loan,
certain agreements between Developer and Administrative Agent governing the Loan and dated
as of the date hereof, including, but not limited to, that certain Loan Agreement and that certain
Promissory Note, Deed of Trust, Assignment of Rents and Leases and Rents and Security
Agreement, Assignment of Leases and Rents, Indemnity and Guaranty Agreement and
Hazardous Substances Indemnity Agreement, (collectively, the "Loan Documents") require that
Developer assign, transfer and convey to Administrative Agent all of Developer's rights, interest
in and to the EDPA until such time as Developer has fully satisfied all duties and obligations set
forth in the Loan Documents that are necessary to discharge Administrative Agent'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 Administrative Agent 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. Provided that, in accordance with Section 8 of the GE Collateral Assignment Consent,
the City has received a written notice, signed by an authorized representative of GECC, that the
collateral assignment and security interest in the EDPA granted under the GE Collateral
Assignment Consent has been fully released (the "GE Release"), the City consents to the
Assignment at the request of Developer and Administrative Agent solely for the purpose of
Administrative Agent'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 Administrative
Agent 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 Administrative Agent, addressed to the following, or such other party or
address as Administrative Agent designates in writing, by certified mail, postage prepaid, or by
hand delivery:
Canadian Imperial Bank of Commerce, acting through its New York Branch
200 West Madison
Suite 2610
Chicago, Illinois 60606
Attn: US Loan Services Group, Mr. John Palomo
and to
Page 2 of 6
Consent to Assignment for Security Purposes
Economic Development Program Agreement between City of Fort Worth and Carlyle/Cypress West 7",LP
(City Secretary Contract No.36633,as amended)
709242984 14450537
Morrison& Foerster LLP
250 West 55th Street
New York, NY 10019
Attn: Thomas P. McGovern
or such other address(es) as Administrative Agent may advise City from time to time.
4. If Developer fails to cure any default under the EDPA, the City agrees that
Administrative Agent, its agents or designees collectively 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 Administrative Agent'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, Administrative Agent, its agents or designees, shall have such additional time
as may be reasonably necessary if within such time period Administrative Agent has commenced
and is diligently pursuing the remedies to cure such default, including, without limitation, such
time as may be required for Administrative Agent to gain possession of Developer's interest in
the Developer property pursuant to the terms of the Loan Documents,
5. If at any time Administrative Agent wishes to exercise any foreclosure rights under the
Loan Documents, before taking any foreclosure action Administrative Agent shall first provide
written notice to the City of such intent (a "Notice"). Administrative Agent 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
Administrative Agent enters into a written agreement with the City to assume and be bound by
all covenants and obligations of Developer under the EDPA, Administrative Agent understands
and agrees that the City shall not be bound to pay Administrative Agent any Program Grants
pursuant to the EDPA. In addition, Administrative Agent understands and agrees that if
Administrative Agent wishes to sell all or any portion of the Development Property or
improvements thereon to a third party following Administrative Agent'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 Administrative Agent 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.
Page 3 of 6
Consent to Assignment for Security Purposes
Economic Development Program Agreement between City of Fort Worth and Carlyle/Cypress West 7",LP
(City Secretary Contract No.36633,as amended)
709242984 14450537
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 Developer has fully satisfied all duties and obligations set forth in the Loan
Documents that are necessary to discharge Administrative Agent's security interest in the EDPA
and such security interest is released, Administrative Agent shall provide written notice to the
City that Administrative Agent 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, Developer and Administrative Agent 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 (i) all parties have executed
this Consent and(ii) the City has received the GE Release. This Consent may be executed in any
number of duplicate originals and each duplicate original shall be deemed to be an original.
Signature Page Follows.
Page 4 of 6
Consent to Assignment for Security Purposes
Economic Development Program Agreement between City of Fort Worth and Carlyle/Cypress West 7t° LP
(City Secretary Contract No.36633,as amended)
709242984 14450537
EXECUTED as of the last date indicated below:
CITY OF FORTH WORTH: APPROVED AS TO FORM
J AND LEGALITY:
By: By: _
ernando Vost, Peter Vaky
Assistant City Manager Deputy City Attorney
Date: J f� M&C: none required
by' _
ADMINISTRATIVE AGENT,
CANADIAN IMPERIAL BANK OF COMMERCE L K P9-9kg
ACTING THROUGH ITS NEW YORK BRANCH F °°000,0
0/Q
0
°
Va o
o7a
By: °o�`'I
Name: °°°°°°°°°°
Title: xAS
Date:
Signature Page Continues.
Page 5 of 6 OFFICIAL RECORD Consent to Assignment for Security Purposes
Economic Development Program Agreement between City of Fort Worth and Carlyle/Cypress West 7'",LP CITYWSAECRETARY
(City Secretary Contract No.36633,as amended) FT. "'^RTH,TX
709242484 14450537
EXECUTED as of the last date indicated below:
CITY OF FORTIi ORTII: APPROVED AS TO FORM
AND LEGALITY:
By: By:
ernan Co to Peter Vaky
Assistant City Manager Deputy City Attorney
Date: c, ,Lz 2- f4e M&C: none required
ADMINISTRATIVE AGENT,
CANADIAN IMPERIAL BANK OF COMMERCE
ACTING THROUGH ITS NEW YORK BRANCH
By:
Name:_
Title: ew f
Date:
Signature Page Continues.
Page 5 of 6
Consent to Assignment for Security Purposes
Economic Development Program Agreement between City of Fort Worth and Carlyle/Cypress West 7'",LP
(City Secretary Contract No.36633,as amended)
709242984 14450537
CARLYLE/CYPRESS WEST 7TH,LP,
a Delaware limited partnership
By: Carlyle/Cypress West 7 h GP,LLC, a Delaware
limited liability company, its general partner
By: Carlyle/Cypress Retail I, L.P.,
a Delaware limited partnership, its sole member
By: Carlyle Retail I GP, L.L.C.,
a Delaware limited liability company,
general partner
By:_ .
Name: DAY ID B_ Ol1NlFL
Title: VICE PRESIDENT
Date:
709242984 14450537
EXECUTED as of the last date indicated below:
CITY OF FORTH ORTH: APPROVED AS TO FORM
AND LEGyA�LITY:
By _ ._. _ By;
Vernan Co to Peter Vaky
Assistant City Manager Deputy City Attorney
Date: M&C: none required
ADMINISTRATIVE AGENT,
CANADIAN IMPERIAL BANK OF COMMERCE
ACTING THROUGH ITS NEW YORK BRANCH
^f
By:
Name: A
Title: r C. ,
Date: -45Alvd,
Signature Page Continues,
Page 3 of 6
Consent to Assignment for Scourity Purposes
Economic Development Program Agreement between City of Fort Worth and Corlylc/Cypross West 7'",LP
(City Secretary Contract No.36633,as amended)
709242984 14450537
CARLYLE/CYPRESS WEST 7TU,LP,
a Delaware limited partnership
By: Carlyle/Cypress West 7a'GP,LLC,a Delaware
limited liability company,its general partner
By: Carlyle/Cypress Retail I, L.P.,
a Delaware limited partnership,its sole member
By: Carlyle Retail I GP,L I.,.C.,
a Delaware limited liability company,
general partner
By: l *
a1no:
Title: uENT
Ditto; .01
,
709242984 14450537