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HomeMy WebLinkAboutC2022-078 - 4/28/2022 - NA HOME ASSIGNMENT OF LEASES AND RENTALS STATE OF TEXAS § § COUNTY OF NUECES § This HOME ASSIGNMENT OF LEASES AND RENTALS (hereinafter referred to as this "Assignment") is executed to be effective as of April , , 2022, by TG 110 PALMS AT BLUCHER PARK, LP, a Texas limited partnership (hereinafter referred to as "Assignor"), for benefit of the CITY OF CORPUS CHRISTI, TEXAS, a home-rule municipal corporation (hereinafter referred to as "Assignee"). WITNESSETH: For value received and as additional security for the indebtedness hereinafter mentioned, Assignor hereby assigns, transfers and conveys unto Assignee all of the right, title and interest of Assignor in and to the rents, issues, profits, revenues, royalties, rights and benefits (hereinafter referred to as "rents") from the following described Property: The land described on Exhibit A, attached hereto and made a part hereof, together with the improvements located or to be located on such land (the "Property"). In addition, Assignor hereby assigns, transfers and conveys unto the said Assignee any and all leases and rental agreements relating to the Property (hereinafter referred to as "leases"), now existing or hereafter made, executed or delivered, whether written or oral, including all amendments thereto. The term of this Assignment shall be until that certain HOME Promissory Note of even date herewith executed by Assignor in favor of Assignee in the original principal amount of One Million and 00/100 Dollars ($1,000,000.00), together with any renewal, extension or modification thereof (hereinafter referred to as "Note"), has been fully paid and satisfied, at which time this Assignment shall be fully satisfied, canceled and released. Said Note is additionally secured by a HOME Deed of Trust (the "Deed of Trust") of even date herewith executed by Assignor in favor of Assignee, and subject to the terms of that HOME Loan Agreement of even date herewith executed by Assignor and Assignee (the "HOME Agreement"), that Deed Covenant to Bind Property for Period of Affordability executed by Borrower (the "Restrictions") and that Certification Regarding Lobbying for Agreements, Grants, Loans and Cooperative Agreements of even date herewith executed by Assignor (the "Certification"). The Deed of Trust, the Note, this Assignment, the Restrictions, the Certification, and the HOME Agreement are hereinafter referred to as the "Loan Documents." For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions of that certain Subordination and Standstill Agreement of even date herewith by and between the Wells Fargo Bank, National Palms at Blucher Park HOME Assignment of Leases and Rentals--Page 1 SCANNED Association, a national banking association, Assignor and Assignee, Assignor and Assignee agree as follows: 1. Assignor does hereby authorize and empower Assignee to collect the rents payable under the leases as they shall become due, and does hereby direct each and all of the tenants to pay the rents as they become due to Assignee upon written demand for payment thereof delivered by said Assignee to said tenants. It is understood and agreed, however, that no such demand shall be made unless and until there has been a default beyond all applicable notice and cure periods in either the payment of the Note, the payment of any other sum secured by the Loan Documents, or the performance of any of the covenants set forth in the Loan Documents; and, until such demand is made, Assignor is authorized to collect or continue to collect the rents, but such privilege of Assignor to collect or continue to collect the rents shall not operate to permit the collection by Assignor of any installment of rent more than thirty (30) days in advance, other than rents collected and held as a security deposit. If a default is timely cured to the reasonable satisfaction of Assignee, Assignee shall direct the tenants to resume paying rents to Assignor. 2. The authority and power of Assignee to collect the rents, as set forth herein, may be exercised and the rents may be collected with or without the taking of possession of the Property, or any part thereof, and without the necessity of Assignee instituting foreclosure under the Loan Documents and/or instituting an action upon the Note or upon this Assignment. Nothing herein, however, shall be construed to prohibit Assignee from instituting such foreclosure or such actions upon the Note or upon this Assignment as permitted herein and/or in the other Loan Documents. 3. In furtherance of this Assignment, Assignor does hereby additionally authorize and empower Assignee, through its employees, agents and/or representatives (collectively, the "Assignee Parties"), at the option of Assignee, upon the occurrence of any default continuing beyond any applicable notice and cure period, to enter upon the Property and to collect, in the name of Assignor or in its own name as Assignee, the rents accrued but unpaid and in arrears on the date the notice and cure period for such default expires without cure, as well as the rents thereafter accruing and becoming payable during the period this Assignment is operative and such default remains uncured; to this end, Assignor further agrees to cooperate and to assist Assignee, its employees, agents or representatives, in all reasonable ways with collection of said rents. 4. Assignor does hereby authorize, but nothing herein shall be deemed to require or obligate, Assignee, upon such entry onto the Property, to take over and assume its management, operation and maintenance, to perform all acts necessary and proper in its reasonable discretion, and to expend such sums as may be reasonably necessary in connection therewith, including the authority to effect new leases, to cancel or surrender existing leases, and/or to make concessions to tenants, with Assignor releasing all claims against Assignee Palms at Blucher Park HOME Assignment of Leases and Rentals--Page 2 arising out of such management, operation and maintenance, excepting the liability of Assignee to account as hereafter set forth, and claims arising from the gross negligence and/or willful misconduct of any of Assignee and/or any of the Assignee Parties. 5. Assignee, after payment of all proper charges and expenses, including reasonable compensation to such agents, employees or representatives as shall have been selected or employed, and after the accumulation of a reasonable reserve to meet taxes, assessments, utility rents and fire and liability insurance in requisite amounts, shall credit the net amount of income received by it by virtue of this Assignment to any amounts due and owing to it under the terms of the Note and the other Loan Documents, but the manner of the application of such net income and the determination of which items to be credited shall be in accordance with the sole discretion of Assignee. Any remaining amounts after all payments and credits have been made in accordance with this paragraph shall be paid to Assignor. 6. Assignor expressly covenants and agrees with Assignee that at the time of execution and delivery of this Assignment, (a) there has been no anticipation of prepayment of any rents by any of the tenants occupying the Property under the leases more than thirty (30) days in advance (other than those collected and held as a security deposit); (b) to Assignor's knowledge the leases (if any) are valid and enforceable and no default exists thereunder that Assignor believes will result in a claim against, or eviction of, the applicable tenant; and (c) except as expressly disclosed in writing to Assignee, there are no other liens on the Property other than the liens evidenced by the Senior Loan Documents (as defined in the HOME Agreement), and no other assignment has been made of the leases or the rents, other than as set forth in the Senior Loan Documents. Assignor covenants and agrees to use commercially reasonable standards in connection with operating the Property as set forth in the leases. Assignor further covenants and agrees that Assignor shall have no right, power or authority to alter, modify or amend any of the material terms or conditions specific to the HOME-assisted leases (as such term is used in the HOME Agreement) without first obtaining the consent in writing of Assignee to such alteration, modification or amendment, which approval shall not be unreasonably withheld, conditioned or delayed. 7. Nothing herein contained shall be construed as making Assignee a mortgagee in possession, nor shall Assignee be liable for latches or for failure to collect the rents. It is understood, however, that Assignee is to account for such sums as are actually collected pursuant to this Assignment prior to any foreclosure under the Loan Documents. Furthermore, it is covenanted and agreed that Assignee shall not be obligated to perform or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty or liability under the leases by reason of this Assignment unless Assignee has taken possession of the Property. 8. Assignor covenants and agrees with Assignee that no tenant needs to determine whether or not a default, beyond applicable notice and cure period, has occurred to make this Assignment operative, but instead, each tenant shall pay over the rents to Assignee upon Palms at Blucher Park HOME Assignment of Leases and Rentals--Page 3 written notice from it to do so and upon so doing shall be relieved from liability therefor to Assignor in all respects. Such notice must be in form and content that substantially complies with Section 64.056 of the Texas Property Code. 9. It is covenanted and agreed that neither the existence of this Assignment, nor the exercise by Assignee of its privilege to collect rents, shall be construed as a waiver by Assignee of the right to enforce payment of the Note in strict accordance with its terms and provisions and those of the Loan Documents, and the collection of rents hereunder shall not constitute waiver of any default which may exist under the terms of the Note or Loan Documents, and the Note may be accelerated in accordance with its terms and those of the Loan Documents, notwithstanding such collection. 10. This Assignment is given as additional security for Borrower's performance of each and all of the obligations and covenants of the Note and the other Loan Documents, together with any renewal, extension or modification thereof. 11. The covenants and agreements herein contained shall inure to the benefit of and be binding upon the respective heirs, successors, assigns and legal representatives of the parties hereto. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to both genders. 12. THIS ASSIGNMENT IS TO BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF TEXAS, EXCLUDING ITS CHOICE AND CONFLICT OF LAW PRINCIPLES. IF ANY PROVISION OF THIS ASSIGNMENT SHALL BE DETERMINED TO BE ILLEGAL OR UNENFORCEABLE, ALL OTHER TERMS AND PROVISIONS HEREOF SHALL NEVERTHELESS REMAIN EFFECTIVE AND SHALL BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW. 13. Notwithstanding any other provision in this Assignment or in any of the other Loan Documents to the contrary, all provisions related to the assignment of the rents and leases in this Assignment are subject to the terms, provisions, and conditions of the Texas Assignment of Rents Act ("TARA"), as codified in Tex. Prop. Code, Chapter 64, as the same may be amended, modified, or supplemented from time to time. To the extent that specific terms and requirements of this Assignment or any other Loan Document conflict with the specific terms and requirements of TARA, (a)to the extent such terms and requirements of TARA may be superseded by an agreement between the parties, the specific terms and requirements of this Assignment and the other Loan Documents hereby supersedes such specific terms and requirements of TARA; and (b) to the extent that such terms and requirements of TARA cannot be superseded by an agreement between the parties, the specific terms and requirements of TARA shall control, and the parties further agree that all other terms and requirements of this Assignment and the other Loan Documents shall not otherwise be impaired or superseded thereby and shall remain in full force and effect. This Assignment is intended to be a "Security Palms at Blucher Park HOME Assignment of Leases and Rentals--Page 4 Instrument" for purposes of TARA and the indebtedness evidenced by the Loan Documents shall be a secured obligation for purposes of TARA. [SIGNATURE PAGE FOLLOWS] Palms at Blucher Park HOME Assignment of Leases and Rentals-- Page 5 Executed to be effective as of the date first set forth above. ASSIGNOR: TG 110 PALMS AT BLUCHER PARK, LP, a Texas limited partnership By: TG 110 Palms at Blucher Park GP, LLC, a Texas limited liability company, its general partner By: TG 110, Inc., a Texas non-profit corporation, its sole member Gilbert M. Piette, Executive Director STATE OF TEXAS § COUNTY OF BEXAR § This instrument was acknowledged before me on this 0).5 day of April, 2022, by Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation, sole member of TG 110 Palms at Blucher Park GP, LLC, a Texas limited liability company, general partner of TG 110 PALMS AT BLUCHER PARK, LP, a Texas limited partnership, on behalf of said limited partnership. 'Q'" A L] Jean Ann Pike My Commission ExplreaCA-"A."— C?:—>S?Z--51- 9!612025 Noa3D I Notary Public, State of Texas o AFTER RECORDING, PLEASE RETURN TO: City of Corpus Christi Attn: Neighborhood Services Department P.O. Box 9277 Corpus Christi, Texas 78469-9277 Palms at Blucher Park HOME Assignment of Leases and Rentals—Signature Page I EXHIBIT A THE LAND All the certain real property located in the County of Nueces, State of Texas, described as follows: TRACT ONE: LOT NINE (9), BLOCK SEVEN (7), PALMS AT BLUCHER PARK SUBDIVISION 1, a subdivision of the City of Corpus Christi, Nueces County, Texas according to the established map or plat thereof recorded in Volume 69, Page 874, Map Records of Nueces County, Texas. TRACT TWO: LOT FIFTEEN (15), BLOCK FIVE (5), PALMS AT BLUCHER PARK SUBDIVISION 2, a subdivision of the City of Corpus Christi, Nueces County, Texas according to the established map or plat thereof recorded in Volume 69, Page 875, Map Records of Nueces County, Texas. Palms at Blucher Park HOME Assignment of Leases and Rentals—Exhibit A