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HomeMy WebLinkAboutContract 33998-CA1 CITY SECRETARY CONTRACT NO, 339Cf$-U, CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ROOM BLOCK & MEETING SPACE AGREEMENT BETWEEN CITY OF FORT WORTH AND 1701 COMMERCE ACQUISITION LLC D/B/A 1701 FORT WORTH HOTEL LLC (CITY SECRETARY CONTRACT NO. 33998) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ROOM BLOCK & MEETING SPACE 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; 1701 COMMERCE ACQUISITION LLC, a Delaware limited liability company authorized to do business in the State of Texas as 1701 Fort Worth Hotel LLC ("Owner"), a Delaware limited partnership; and GUGGENHEIM LIFE AND ANNUITY COMPANY, a Delaware life insurance company. RECITALS The City, Owner 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 Owner have entered into that certain Economic Development Program Agreement on file in the City Secretary's Office as City Secretary Contract No. 33870, as previously amended by City Secretary Contract Nos. 34442, 35075, 36660, 33870-A4, 33870-A5, and 33870-A6, and as previously assigned by Presidio Hotel Fort Worth, L.P. to Owner with the City's consent pursuant to City Secretary Contract No. 33870-CA2 (collectively, the "EDPA"). B. The EDPA required Owner to enter into that certain Room Block & Meeting Space Agreement on file in the City Secretary's Office as City Secretary Contract No. 33998 (the "RBA"). Termination of the RBA on account of a breach or default of the RBA by Owner results in the contemporaneous termination of the EDPA. C. Owner wishes to obtain a loan from Lender (the "Loan") in order to in order to purchase the Hotel and the Hotel Site. In connection with the Loan, Lender and Owner are entering into that certain Loan Agreement dated as of the date hereof (as the same may be amended, restated, replaced, supplemented, or otherwise modified from time to C-) time, the "Loan Agreement"), and Owner has executed that certain Promissory Note in M favor of Lender in the amount of the Loan, dated of even date herewith (the "Note"), and M that certain Deed of Trust and Security Agreement for the benefit of Lender (the "Deed of Trust"), which creates a lien in favor of Lender in the Hotel and Hotel Site in order to secure repayment of the Note (the Loan Agreement, the Senior Note, the Deed of trust �-► and all other documents entered into in connection with the Loan are coll ctivelv referred 0o = 28 Page 1 OFFICIAL RECORD Consent to Assignment for Security Purposes of Room Block&Mceting Space Agreement CI'T'Y SECRETARY between City of Fort Worth and 1701 Commerce Acquisition LLC d/b/a 1701 Fort Worth Hotel L FT.WORTH,TX to herein as the "Loan Documents"). The Loan Documents require that Owner assign, transfer and convey to Lender all of Owner's rights, interest in and to the EDPA and RBA until such time as Owner 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 RBA (the "Assignment"). D. Because termination of the RBA results in the contemporaneous termination of the EDPA, Lender desires that the City consent to the assignment by Owner to Lender of all of Owner right, title and interest in the RBA in order to protect Lender's security interest in the EDPA. E. The City is willing to consent to this Assignment specifically in accordance with the terms and conditions of this Consent. AGREEMENT 1. The City, Owner 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 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 Owner under the RBA. 3. In the event that the City is required by the RBA to provide any kind of written notice to Owner, including notice of breach or default by Owner, 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 reputable overnight courier for next day delivery, certified mail, postage prepaid, or by hand delivery: If to Lender: Guggenheim Life and Annuity Company 401 Pennsylvania Parkway, Suite 300 Indianapolis, IN 46280 Phone: 317-396-9953 Facsimile No.: 317-574-6272 Attention: GLAC Real Estate Investment Office E-mail: GLACREInvestmentgg_uggenheimpartners.com Page 2 Consent to Assignment for Security Purposes of Room Block&Meeting Space Agreement between City of Fort Worth and 1701 Commerce Acquisition LLC d/b/a 1701 Fort Worth Hotel LLC with a copy to: Guggenheim Life and Annuity Company 227 West Monroe St., Suite 4900 Chicago, Illinois 60606 Phone: 312-827-0100 Facsimile No.: 312-827-0197 Attention: GLAC Legal Office GL.ACREL.e lLuggc.nheimi2arc s.com and: Guggenheim Life and Annuity Company c/o Guggenheim Commercial Real Estate Finance, LLC 3455 Peachtree Road NE, Suite 500 Atlanta, GA 30326 Attention: Eugene Ansley, Jr. and a copy to: Winstead PC 401 Congress Avenue Suite 2100 Austin, Texas 78701 Attention: Nicholas M. Pyka, Esq. or such other address(es) as Lender may advise City from time to time. 4. If Owner fails to cure any default under the RBA, 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 RBA to perform any of the obligations or requirements of Owner imposed by the RBA and that the City will accept Lender's performance of the same as if Owner 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 the Hotel and Hotel Site pursuant to the terms of the Loan Documents. 5. Intentionally Deleted. 6. In the event of any conflict between this Consent and the RBA, this Consent shall control. In the event of any conflict between this Consent and any of the Loan Documents, this Consent shall control as to the City. In the event of any conflict between the RBA and any of the Loan Documents, the RBA shall control as to the City. Page 3 Consent to Assignment for Security Purposes of Room Block&Meeting Space Agreement betatieen City of Fort Worth and 1701 Commerce Acquisition LLC db/'a 1701 Fort Worth Hotel LLC 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 RBA. 8. Once Owner has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the RBA 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 RBA. 11. This written instrument contains the entire understanding and agreement between the City, Owner 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. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] Page 4 Consent to Assignment for Security Purposes of Room Block&Meeting Space Agreement between City of Fort Worth and 1701 Commerce Acquisition LLC d/b/a 1701 Fort Worth Hotel LLC CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: ! -�O � By: Name: Fcrnanda CosPA, Name:AuerVgk Assistant City Manager As� City Attorney peP ufy Date: M&C: none required 1�46' ity Secretary IF 0°®�� O 00 O-0 OO O O 00p�pV00 �. 1 OFFICIAL RECORD CITY SECRETARY FT.(NORTH,TX Page 5 Consent to Assignment for Security Purposes of Room Block& Meeting Space Agreement between City of Fort Worth and 1701 Commerce Acquisition LLC d b/a 1701 Fort Worth Hotel LLC OWNER: , 1701 COMMERCE ACQUISITION LLC, a Delaware limited liability company By: Name: Suslo Patel Title: Presi nt Date: OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Page 6 Consent to Assignment for Security Purposes of Room Block&Meeting Space Agreement between City of Fort Worth and 1701 Commerce Acquisition LLC d/b/a 1701 Fort Worth Hotel LLC LENDER: GUGGENHEIM LIFE AND ANNUITY COMPANY, a Delaware life insurance company By: Name: james D. Pdrvis Title: I@ oBerating Officer Date: -7 115 2 U 13 DALLAS 1\60551810 52845-61 07/12/2013