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R-04-08-12-13G5 - 8/12/2004 RESOLUTION NO. R-04-08-12-13G5 WHEREAS, the City of Round Rock ("City" ) has previously entered into a Development Agreement with Behrens Subdivision, Ltd. ("Original Developer" ) , and WHEREAS, Developer wishes to convey all rights, title and interest in said Agreement relating to Behrens Subdivision N.G. , Ltd. ( "New Developer" ) , a Texas limited partnership, and WHEREAS, Section 9 . (j ) . of the Agreement requires that any assignment of the Agreement by the Developer be consented to by the City, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a consent to the Assignment of Development Agreement, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes . The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 12th day of August, 2004 . NY EL , Mayo A ST; Cit f Round Rock, Texas CHRISTINE R. MARTINEZ, City Secre ary @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R40812GS.WPD/cdc EXHIBIT Loan No. 700397 ASSIGNMENT OF DEVELOPMENT AGREEMENT RIGHTS For Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, BEHRENS SUBDIVISION N.G., LTD., a Texas limited liability company ("Borrower"), as additional security for the payment and performance of the covenants, agreements and obligations of Borrower to TEXANS COMMERCIAL CAPITAL, LLC, a Texas limited liability company ("Lender")arising under that certain Loan Agreement between Borrower and Lender of even date herewith (said agreement, as amended from time to time, is referred to herein as the"Loan Agreement")and under all of the documents or instruments delivered concurrently therewith, pursuant thereto or in connection therewith (referred to,collectively with the Loan Agreement,herein as the"Loan Documents"),hereby grants a security interest in,and sells,transfers,assigns and sets over,to Lender, its successors and assigns,all of Borrower's title and interest in and to,and Borrower's rights, benefits and privileges to reimbursement of funds under the Development Agreement Concerning Behrens Ranch Public Improvement District dated December 21,2000 (the "Development Agreement"), by and between The City of Round Rock (the "City'), a Texas home-rule municipal corporation, and Behrens Ranch Subdivision, Ltd., described in Exhibit "A" attached hereto and incorporated herein for all purposes. In furtherance of the foregoing, Borrower hereby agrees that this Assignment of Development Agreement Rights ("Assignment") is made upon the following terms and conditions: 1. Borrower shall pay and perform all of Borrower's covenants, agreements and obligations under the Development Agreement and hereby covenants and agrees not to, without prior written consent of Lender: (i) modify, amend or change any Development Agreement after full execution thereof; (ii)terminate or otherwise cancel any fully executed Development Agreement; (iii)take any action or exercise any right or option which would permit a purchaser to terminate or otherwise cancel the Development Agreement ; or(iv)further assign or create any further encumbrance or hypothecation of Borrower's interest in any of the Development Agreement, unless required by any governmental authority, in which case Borrower shall give Lender prior written notice thereof. 2. Upon the occurrence of an Event of Default(as defined in the Loan Agreement), Lender may elect, in its sole and absolute discretion, to exercise, in the name of Borrower, all of Borrower's rights, benefits and privileges to reimburse funds; in connection with such exercise of rights, benefits and privileges, Lender shall have full power and authority to do all acts as may be necessary, as determined in Lender's sole discretion to collect any reimbursement amounts thereunder. Lender shall not be required to give any notice of such election to Borrower. Borrower hereby covenants and agrees to pay to Lender promptly upon demand any and all costs and expenses, including, without limitation, reasonable attorneys' fees and expenses incurred by Lender in connection with such an election by Lender to exercise its rights under this Assignment. Furthermore, promptly upon demand by Lender, Borrower shall take such actions and execute such documents as may be necessary to facilitate Lender's exercise of its rights hereunder, including, without limitation: (i)delivering to Lender all then existing Development Agreements; or (ii)delivering,jointly with Lender, notices to of the Assignment. 3. BORROWER SHALL INDEMNIFY,DEFEND AND HOLD LENDER AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES,OBLIGATIONS,PENALTIES, CLAIMS, FINES,LOST PROFITS,DEMANDS,LITIGATION,DEFENSES,COSTS,JUDGMENTS,SUITS, PROCEEDINGS, DAMAGES, DISBURSEMENTS OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES), CONSEQUENTIAL OR OTHERWISE, WHICH MAY AT ANY TIME BE EITHER DIRECTLY OR INDIRECTLY IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST LENDER OR ANY OF LENDER'S AFFILIATES IN CONNECTION WITH, ARISING FROM OR RELATING TO ANY ACTION OR ACTIONS TAKEN BY LENDER PURSUANT TO SECTION 2 HEREOF, OTHER THAN ANY LOSS, LIABILITY,DAMAGE,SUIT,CLAIM,EXPENSE,FEE OR COST ARISING SOLELY BY REASON OF LENDER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR OMISSIONS. 1 109286_1/(89334/005) Loan No. 700397 4. So long as no Event of Default has occurred, Borrower may continue to receive and exercise all of its rights, benefits and privileges under the Development Agreement, except as herein restricted or provided otherwise. 5. Neither this Assignment nor any action or actions on the part of Lender shall constitute an assumption of any of the covenants,agreements or obligations of Borrower by Lender under the Development Agreement and Borrower shall continue to be liable for all such covenants, agreements or obligations. BORROWER SHALL INDEMNIFY, DEFEND AND HOLD LENDER AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, CLAIMS, FINES, LOST PROFITS, DEMANDS, LITIGATION, DEFENSES, COSTS, JUDGMENTS, SUITS, PROCEEDINGS, DAMAGES, DISBURSEMENTS OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES), CONSEQUENTIAL OR OTHERWISE, WHICH MAY AT ANY TIME BE EITHER DIRECTLY OR INDIRECTLY IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST LENDER OR ANY OF LENDER'S AFFILIATES IN CONNECTION WITH, ARISING FROM OR RELATING TO ANY FAILURE OF BORROWER TO PERFORM AND OBSERVE ANY OF SUCH OBLIGATIONS,OTHER THAN ANY LOSS, LIABILITY, DAMAGE, SUIT, CLAIM, EXPENSE, FEE OR COST ARISING SOLELY BY REASON OF LENDER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR OMISSIONS. 6. Subject to the provisions of Section 7 hereof, Lender shall have the right, at any time (but shall have no obligation), to take in its name or in the name of Borrower or otherwise, such action as Lender may at any time or from time to time reasonably determine to be necessary to protect the rights of Lender as the assignee of Borrower hereunder. Lender shall incur no liability on account of any action taken by it or on its behalf in good faith pursuant to the foregoing sentence or otherwise hereunder,whether or not the same shall prove to be improper, inadequate or invalid, in whole or in part. 7. Upon the full and complete payment and performance of all of the covenants, agreements and obligations of Borrower and Borrower to Lender arising under the Loan Agreement and the other Loan Documents, this Assignment shall become null and void. 8. This Assignment shall be binding upon Borrower and its successors and assigns and inure to the benefit of Lender and its participants, successors and assigns. 2 1092861/(89334/005) Loan No. 700397 Executed by Borrower to be effective as of July_, 2004. BORROWER: BEHRENS SUBDIVISION N.G., LTD., a Texas limited liability company By: Name: Title: The City executes and delivers this instrument solely to evidence its consent to the assignment of the rights and benefits as aforesaid. CITY OF ROUND ROCK, TEXAS By: 3 109286_1/(89334/005) Loan No. 700397 EXHIBIT "A" DEVELOPMENT AGREEMENT 4 109286_1/(89334/005) DATE: August 6, 2004 SUBJECT: City Council Meeting - August 12, 2004 ITEM: 13.G.5. Consider a resolution authorizing the Mayor to execute a consent to the Assignment of the Behrens Ranch Development Agreement. Department: Legal Staff Person: Steve Sheets, City Attorney Justification: Section 9(j) of the Development Agreement between the City and Behrens Ranch, Ltd. Provides that said Agreement may be assigned by the Developer, subject to City Council approval. Funding• Cost: No cost to the City. Source of funds: N/A Outside Resources: Behrens Subdivision N.G., Ltd. Background Information• As noted above, the Development Agreement allows the Developer to assign the Development Agreement, subject to the City's consent, which shall not be unreasonably withheld. Public Comment• N/A Executed Document Follows Loan No. 700397 ASSIGNMENT OF DEVELOPMENT AGREEMENT RIGHTS For Ten Dollars ($10.00)and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, BEHRENS SUBDIVISION N.G., LTD., a Texas limited liability company ("Borrower"), as additional security for the payment and performance of the covenants, agreements and obligations of Borrower to TEXANS COMMERCIAL CAPITAL, LLC, a Texas limited liability company ("Lender")arising under that certain Loan Agreement between Borrower and Lender of even date herewith (said agreement,as amended from time to time, is referred to herein as the"Loan Agreement")and under all of the documents or instruments delivered concurrently therewith,pursuant thereto or in connection therewith (referred to,collectively with the Loan Agreement,herein as the"Loan Documents"),hereby interest in,and sells,transfers,assigns and sets over,to Lender, its successors and assigns,all of Borrower's title and interest in and to,and Borrower's rights, benefits and privileges to reimbursement of funds under the Development Agreement Concerning Behrens Ranch Public Improvement District dated December 21,2000 (the "Development Agreement"), by and between The City of Round Rock (the"City"), a Texas home-rule municipal corporation, and Behrens Ranch Subdivision, Ltd., described in Exhibit "A_"attached hereto and incorporated herein for all purposes. In furtherance of the foregoing, Borrower hereby agrees that this Assignment of Development Agreement Rights ("Assignment") is made upon the following terms and conditions: 1. Borrower shall pay and perform all of Borrower's covenants, agreements and obligations under the Development Agreement and hereby covenants and agrees not to, without prior written consent of Lender: (i) modify, amend or change any Development Agreement after full execution thereof; (ii)terminate or otherwise cancel any fully executed Development Agreement; (iii)take any action or exercise any right or option which would permit a purchaser to terminate or otherwise cancel the Development Agreement; or(iv)further assign or create any further encumbrance or hypothecation of Borrower's interest in any of the Development Agreement, unless required by any governmental authority, in which case Borrower shall give Lender prior written notice thereof. 2• Upon the occurrence of an Event of Default(as defined in the Loan Agreement), Lender may elect, in its sole and absolute discretion, to exercise, in the name of Borrower, all of Borrower's rights, benefits and privileges to reimburse funds; in connection with such exercise of rights, benefits and privileges, Lender shall have full power and authority to do all acts as may be necessary, as determined in Lender's sole discretion to collect any reimbursement amounts thereunder. Lender shall not be required to give any notice of such election to Borrower. Borrower hereby covenants and agrees to pay to Lender promptly upon demand any and all costs and expenses, including, without limitation, reasonable attorneys' fees and expenses incurred by Lender in connection with such an election by Lender to exercise its rights under this Assignment. Furthermore, promptly upon demand by Lender, Borrower shall take such actions and execute such documents as may be necessary to facilitate Lender's exercise of its rights hereunder, including, without limitation: (i)delivering to Lender all then existing Development Agreements;or (ii)delivering,jointly with Lender, notices to of the Assignment. 3. BORROWER SHALL INDEMNIFY,DEFEND AND HOLD LENDER AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LOSSES,LIABILITIES,OBLIGATIONS, PENALTIES, CLAIMS,FINES,LOST PROFITS,DEMANDS,LITIGATION,DEFENSES,COSTS,JUDGMENTS,SUITS, PROCEEDINGS, DAMAGES, DISBURSEMENTS OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES), CONSEQUENTIAL OR OTHERWISE, WHICH MAY AT ANY TIME BE EITHER DIRECTLY OR INDIRECTLY IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST LENDER OR ANY OF LENDER'S AFFILIATES IN CONNECTION WITH, ARISING FROM OR RELATING TO ANY ACTION OR ACTIONS TAKEN BY LENDER PURSUANT TO SECTION 2 HEREOF, OTHER THAN ANY LOSS,LIABILITY,DAMAGE,SUIT,CLAIM,EXPENSE,FEE OR COST ARISING SOLELY BY REASON OF LENDERS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR OMISSIONS. �-oy-�8-is-�3cs 1 109286-1/(89334/005) Loan No. 700397 4. So long as no Event of Default has occurred, Borrower may continue to receive and exercise all of its rights, benefits and privileges under the Development Agreement, except as herein restricted or provided otherwise. 5. Neither this Assignment nor any action or actions on the part of Lender shall constitute an assumption of any of the covenants,agreements or obligations of Borrower by Lender under the Development Agreement and Borrower shall continue to be liable for all such covenants, agreements or obligations. BORROWER SHALL INDEMNIFY, DEFEND AND HOLD LENDER AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, CLAIMS, FINES, LOST PROFITS, DEMANDS, LITIGATION, DEFENSES, COSTS, PROCEEDINGS, DAMAGES, DISBURSEMENTS OR EXPENSES OF ANY KIND ORS NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES), CONSEQUENTIAL OR OTHERWISE, WHICH MAY AT ANY TIME BE EITHER DIRECTLY OR INDIRECTLY IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST LENDER OR ANY OF LENDER'S AFFILIATES IN CONNECTION WITH, ARISING FROM OR RELATING TO ANY FAILURE OF BORROWER TO PERFORM AND OBSERVE ANY OF SUCH OBLIGATIONS,OTHER THAN ANY LOSS, LIABILITY, DAMAGE, SUIT, CLAIM, EXPENSE, FEE OR COST ARISING SOLELY BY REASON OF LENDER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR OMISSIONS. 6. Subject to the provisions of Section 7 hereof, Lender shall have the right, at any time (but shall have no obligation), to take in its name or in the name of Borrower or otherwise, such action as Lender may at any time or from time to time reasonably determine to be necessary to protect the rights of Lender as the assignee of Borrower hereunder. Lender shall incur no liability on account of any action taken by it or on its behalf in good faith pursuant to the foregoing sentence or otherwise hereunder,whether or not the same shall prove to be improper, inadequate or invalid, in whole or in part. 7. Upon the full and complete payment and performance of all of the covenants, agreements and obligations of Borrower and Borrower to Lender arising under the Loan Agreement and the other Loan Documents, this Assignment shall become null and void. 8. This Assignment shall be binding upon Borrower and its successors and assigns and inure to the benefit of Lender and its participants, successors and assigns. 2 109286-1/(89334/005) Loan No. 700397 Executed by Borrower to be effective as of July_ 2004. BORROWER: BEHRENS SUBDIVISION N.G., LTD., a Texas limited liability company By: Name: Title: The City executes and delivers this instrument solely to evidence its consent to the assignment of the rights and benefits as aforesaid. CITY O , TEXAS By: 3 109286-1/(89334/005) Loan No. 700397 EXHIBIT-A- DEVELOPMENT AGREEMENT 4 109286-1/(89334/005)