HomeMy WebLinkAboutC2013-296 - 8/13/2013 - NA INTERCREDITOR AND SUBORDINATION AGREEMENT
This Intercreditor and Subordination Agreement (the "Agreement") is entered
into as of August _, 2013, by and among CAPITAL ONE, NATIONAL
ASSOCIATION, a national banking association (the "Bank„), CORPUS CHRISTI
COMMUNITY IMPROVEMENT CORPORATION ("CCCIC"), and THE PALMS AT
LEOPARD, LTD., a Texas limited partnership ("Borrower").
RECITALS:
A. Borrower is the owner of a 120-unit affordable housing apartment
project (the "Project") to be constructed in Corpus Christi, Nueces County, Texas
on the property (the "Land") which is more described on Exhibit "A" attached
hereto and incorporated herein by reference.
B. As provided for in a HOME Loan Agreement dated August _, 2013,
CCCIC has made a loan of HOME funds ("CCCIC HOME Loan") to Borrower for the
Project in the aggregate amount of $865,000.00 (such funding is referred to herein
as the "CCCIC HOME Funds").
C. Pursuant to a Credit Support and Funding Agreement (the "Bank Loan
Agreement") of even date herewith, the Bank has agreed to make a loan in an
amount not to exceed $11,560,000.00 (the "Bank Loan") to provide financing for
the Project. The Loan is evidenced by a promissory note in the amount of
$11,560,000.00, and is more fully described in and secured by a Multifamily
Construction and Permanent Amended and Restated Deed of Trust, Assignment of
Rents and Security Agreement and Fixture Filing, of even date with such note, and
covering the Project and to be recorded in the Official Public Records of Real
Property of Nueces County, Texas,
D. CCCIC and the Bank wish to enter into this Agreement to fully set
forth their agreement regarding the relationship of the CCCIC HOME Loan to the
Bank Loan and other matters of mutual interest to the County and the Bank with
respect to the construction of the Project.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, CCCIC and the Bank hereby agree as follows:
1. Definitions. In addition to the defined terms set forth elsewhere
herein, the following terms shall have the meanings set forth below:
2013-295
8113/13
Capital One
(a) "CCCIC HOME Loan Documents" means all notes, mortgages,
agreements, instruments, and documents, governing, evidencing, or securing the
CCCIC HOME Loan.
(b) "HOME" means the HOME Investment Partnerships Program,
enacted under Title 11 of the National Affordable Housing Act, approved November
28, 1990.
(c) "HUD" means the United States Department of Housing and
Urban Development.
2. Acknowledgments, Representations, and Consents. CCCIC
represents to the Bank that (i) once issued, the CCCIC HOME Loan Documents will
be in full force and effect (and will remain in full force and effect throughout the
term of this Agreement), (ii) all conditions to CCCIC 's obligations to enter into the
CCCIC HOME Loan Documents as set forth in the CCCIC HOME Loan Documents
have been satisfied or waived by CCCIC, and (iii) the CCCIC HOME Loan
Documents will constitute a commitment by CCCIC to make the CCCIC HOME
Funds available to the Borrower for the Project as hereafter provided subject to the
terms and conditions of the CCCIC HOME Loan Documents. CCCIC acknowledges
and agrees that the CCCIC HOME Loan shall be used to reimburse Borrower for
budgeted hard costs, and unless Bank and CCCIC shall agree otherwise, a request
for disbursement made by Borrower for reimbursement for budgeted hard costs
which Bank's construction consultant has determined may be paid as provided in
the Bank Loan Agreement (unless to be funded from another source under the
Bank Loan Agreement) shall be funded first from the CCCIC HOME Loan (to the
extent proceeds thereof are then available) and then from the Bank Loan. Bank
shall have no obligation to fund its portion of a requested disbursement for hoard
costs unless and until CCCIC has first funded its portion of that requested
disbursement.
3. Subordination by CCCIC. CCCIC agrees that to the extent any
voluntary or involuntary liens, claims, and security interests, whether by
agreement, at law, or in equity, of CCCIC (or any other entity claiming by,
through, or under CCCIC) now or hereafter secure the payment and/or performance
of the Borrower's obligations under and with respect to the CCCIC HOME Loan and
the CCCIC HOME Loan Documents or otherwise with respect to the CCCIC HOME
Loan (including, without limitation, the liens granted in any mortgage executed by
Borrower to CCCIC pursuant to the CCCIC HOME Loan), said liens, claims, and
security interests are and shall forever remain junior, subordinate, and inferior, to
the liens and security interests of the Bank securing payment of the Bank Loan
and, by its execution hereof, CCCIC hereby evidences said subordination.
Gardere0i -8308081 .8
4. Notice of Defaults. (a) If a default or an event of default (or an event
which with the passage of time or the giving of notice or both would be an event
of default) occurs under the CCCIC HOME Loan Documents, then CCCIC (or any
subsequent assignee of the CCCIC HOME Loan) will provide Bank with a copy of
any written notice thereof contemporaneously with the delivery of such notice to
CCCIC and shall permit the Bank the right, but not the obligation, to cure the
default within any applicable grace or cure period provided for in the CCCIC HOME
Loan Documents.
(b) Bank shall provide CCCIC with a copy of each notice of any
default or event of default under and with respect to the Bank Loan provided to
Borrower simultaneously with the giving of that notice to Borrower and shall permit
CCCIC the right, but not the obligation, to cure the default within any applicable
grace or cure period provided for in the Bank Loan Agreement.
(c) Notwithstanding anything in this Agreement to the contrary,
CCCIC (or any subsequent assignee of the CCCIC HOME Loan) shall not exercise
any right or remedy under the CCCIC HOME Loan Documents for an event of
default thereunder by Borrower unless and until the Bank Loan has been repaid in
full and the Bank has no further funding obligations thereunder.
(d) Notwithstanding anything to the contrary herein, and so long as
there is no Event of Default under and as defined in the Bank Loan Agreement then
continuing, or would result therefrom, Borrower may make the scheduled
payments (as set forth in the CCCIC HOME Loan Documents) on the CCCIC HOME
Loan to Borrower (but not prepayments).
(e) In the event of any receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization or arrangement with
creditors, whether or not pursuant to bankruptcy laws, sale of all or substantially
all of the assets, dissolutions, liquidations or any other marshaling of the assets
and liabilities of Borrower, CCCIC, and the Bank agree that the Bank Loan will be
paid prior to the CCCIC HOME. Loan. CCCIC agrees to file any claim, or other
instrument of similar character necessary to enforce the obligations of the
Borrower under the CCCIC HOME Loan Documents, and will hold in trust for Bank
and immediately pay over to Bank, in the form received (except for CCCIC's
endorsement or assignment which CCCIC agrees to provide upon Bank's request)
to be applied on the Bank Loan, any and all moneys, dividends, or other assets
received in any such proceeding on account of the CCCIC HOME Loan, unless and
until the Bank Loan shall be paid in full.
GarderaOl -6306081 v.8 3
5. Notices. Any notice by one party to the other hereunder shall be in
writing and shall be delivered in person, via overnight courier or by United States
Mail, postage prepaid, certified, return receipt requested. Notice shall be deemed
delivered on the date delivered, or if mailed, three business days after deposit in
the U.S. Mail.
All notices shall be delivered to the following addresses:
To the Bank: Capital One, National Association
404 Fifth Avenue, 3rd Floor
New York, New York 10018
Attention: Edward J. Santos
To the Borrower: The Palms at Leopard, Ltd.
8610 North New Braunfels, Suite 500
San Antonio, Texas 78217
With a copy to: Hudson SLP, LLC
630 Fifth Avenue
New York, New York 1011 1
To CCC1C: Corpus Christi Community Improvement Corporation
c/o City of Corpus Christi
P.O. Box 9277
Corpus Christi, Texas 78469-9277
The parties may change their addresses for purposes of notice by giving the
other party ten (10) days' written notice of the address change in the manner
hereinabove stated.
6. Miscellaneous.
(a) This Agreement constitutes the entire agreement of the three
parties hereto with respect to the subject matter hereof, and all other prior and
contemporaneous written or oral agreements, Any amendment hereto must be in
writing executed by the Borrower, CCC1C, and the Bank.
(b) Time is of the essence in the performance of the parties'
obligations hereunder.
(c) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE UNITED STATES FEDERAL LAW. THE EXCLUSIVE VENUE FOR THIS
AGREEMENT SHALL BE CORPUS CHRISTI, NUECES COUNTY, TEXAS.
Gardere0l -6306081 v.8 4
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, THE UNDERSIGNED HEREBY AGREE THAT THE STATE AND
FEDERAL COURTS LOCATED IN CORPUS CHRISTI, TEXAS SHALL HAVE
EXCLUSIVE JURISDICTION AND VENUE WITH RESPECT TO ALL ACTIONS
BROUGHT BY OR AGAINST ANY PARTY UNDER OR PURSUANT TO THIS
AGREEMENT AND/OR ANY OF THE OTHER LOAN DOCUMENTS, AND THE
UNDERSIGNED HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH
COURTS AND TO SERVICE OF PROCESS, EFFECTIVE UPON RECEIPT BY
PERSONAL SERVICE.
(d) This Agreement shall be enforceable by and binding upon all
successors and assigns of Bank.
(e) This Agreement shall remain in full force and effect until the
Bank Loan has been fully and finally paid and Borrower has no further obligations
under the Bank Loan Agreement.
(f) This Agreement may be executed in two or more counterparts,
and it shall not be necessary that any one counterpart be executed by all of the
parties hereto. Each fully or partially executed counterpart shall be deemed an
original, but all such counterparts taken together shall constitute but one and the
same instrument.
(g) CCCIC and Borrower agree that notwithstanding anything in the
CCCIC HOME Loan Documents to the contrary, at least 90% of the CCCIC HOME
Loan shall be funded within six (6) calendar months after the date of this
Agreement to pay budgeted hard cost items as contemplated by the Bank Loan
Agreement (the remaining 10% of the CCCIC HOME Loan may be retained but
must be funded within six calendar months after substantial completion of the
Project and occupancy of each of the eight (8) HOME designated units.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Gardere0l -6306097 v,8
IN WITNESS WHEREOF, the undersigned have affixed their signatures hereto
on the respective dates set forth in the acknowledgment below to be effective as
of the date first above written.
"BORROWER"
THE PALMS AT LEOPARD LTD., a Texas
limited partnership
By: The Palms at Leopard GP, LLC, a
Texas limited liability company, its
general partner
By: TO 110, Inc., a Texas nonprofit
corporation, its sole member
G I I b?a r4t-k Piett e,
Executive Director
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on this t7day of August,
2013, by Gilbert M. Piette, Executive Director of TO 110, Inc., a Texas non-profit
corporation, on behalf of said corporation, as sole member of The Palms at Leopard
GP, LLC, a Texas limited liability company, general partner of THE PALMS AT
LEOPARD, LTD., a Texas limited partnership.
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Notary: �.
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GARDERE01 -8306081
SIGNATURE PAGE TO INTERCREDITOR AND SUBORDINATION
"CCCIC"
ATTEST: CORPUS CHRISTI COMMUNITY
IMPROVEMENT CORPORATION ("CCCIC")
r � By
_,. , ....... a �... ,�, -----------
�.,
Armando Chapa Ronald L. Olson
Secretary General Manager
APPROVED AS TO FORM:
THIS DAY OF AUGUST, 2013
Carlos Valdez, CITY ATTORNEY
By: _
Llsaf ........
STATE OF TEXAS
§ KNOW ALL BY THESE PRESENTS:
COUNTY F
This instrument ,as c ole f r e on this da of
I n er of the y
5 orpu Christi
'i„���w.. 2013, by g
om ni I prove t Corporation, Teas non-profit caror tion, on ehf of
the corporation.
� w„ ,.,,.............
frY,� MONIUE TAMEZ LERMA otry u lic, S te of Texas
Notary Plub'k ."
STATE OF TEXA
............ My Gomm Exp,101-23.21E17
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GARDERE01 —8308081
SIGNATURE PAGE TO INTERCREDITOR AND SUBORDINATION
"BANK"
CAPITAL ONE, NATIONAL ASSOCIATION, a
national banking association
By: ..........
_...... .. „ , „
John R. Yochum,
Senior Director
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF §
This Instrument was acknowledged before me on this day of
, 2013, by John R. Yochum, Senior Director of CAPITAL ONE,
NATIONAL ASSOCIATION, a national banking association, on behalf of said
banking association.
NOTARY U,dUb—, State of Texas
My Commission Expires:
GARDERE01 -8305081
SIGNATURE PAGE TO INTERCREDITOR AND SUBORDINATION
EXHIBIT "A"
LEGAL DESCRIPTION
1) and E, HAWN "lliACT, arii riddition 'iiir& the flity, lod (,'uirpus Chlisfi, Yexias, as
shown by un"imp orpial thciru)r V000rdeld, i�ni 'Vohmlrnlc II I, Vsg �71, 10ap 11 liccuirds of Nticcvs CoUldy,l,
T"q'I'litins,
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hichig aI I rrf"II`ur 't II3, C, [) mad F, Hawn�Tract, IllegirS lVid bolunids ims
fbilions:
"Barr Exhibil "'A"fill"chiCild 11CIPCM)0,1111CITTIDde part Iavrcc&
Exhibit A — Page
GARDERE01 -6306081
FIELD NOTE DESCRIPTION
OF A, 8 , 212 ACRE "TIUICT SITUA7ED 114 "THE CITY OF CORPUS CHRISril,
147)C,CES Ti"II & TEXAS, MEING ALL OF TRACTS q0D, AND—E, HAKi
TRACT, A SUBDIVISIOM OF RECORD 11; V01.1illE 19, VAGE 7 MAP SECCHDS
OF �'VIRCI�S TEXAS; SAID 8.212 ACRES BEING IMPE,
PARTICULARLY DES CRIOED AS FOLLOWS, WIT" ALL SEARINCS SEIMG
REFERENCED 0 THE NORTH AMERICAN DATUM OR' 1 983, COORDJNATi�'
SYSTEM, SOVI'M ZOWE, USING A COMBIWIL3 SCaLE PACT OR OF-1 , 0000400
BESINNINS, AT A POUND 510 INCH ZRON R,01) Wl"I'll Cl',& LOCATED AT TUE
INTERSECTION off" rHE NORTHERLY RIGHT-00WAY LINE OF I q PAN STIIE&T
i6ol 1111' 0, w, AN I[) 1,11HE EASTERLY RICHIT-05TAY LINO, OF PATA4 DRIVI���
100' R.C.A , I BEING THE SOUTHWEST TIT RLY Gomm or SAID TRACT ELI`
THENCE, N On' 40" 3 9 H 0"EAVING THE l40Rl'liC1Q,Y RIGHT 0 r,,-T11J,A y
LINE OF LIPAN STREET, AIONG THE EAS''rERLY LINE ()F
PALM DRIVE, BEING THE WESTERLY LINES OF SAID TPACT Q SAID TRACI
0 AND SAID TPACr C, PASSING A, FOUND I-IUCH IRON PIPE AT A
DISTANCE CA' 447 . 95 Ft:El' AN1�) ClrRq11lllj�HA4G (10flk 'A 111`011,All DI Sri 111''ANCE, OF
940.35 FEET TO A SET 4 INCH !RON W)D WITH BPI CAP AT THE
SOUTHEASTERLY CORNER OF THE IN7ERSECTION OF—PALM DRIVE AND
LEOPARD STREET (00" R.00. ) , MARYING THE NORTHWESTERLY CORNER 0�
SAID TRACT C
rHENCE, S 3911:' 1.9' 41" E, ALONG THE SOU'�PlflIRLY RIGHT-011F-WAV LINI�!:;
Or LEOVARn STREET, BEINO THE NORTHERLY LINES OF SAID TRACT C =)
SarO TnAC7 S, jk DISTANCE OF 654 . 09 FELl' TO A SET PK II AIL,
MARKING THE NORTHEASTERLY CORNER OF SA,ID TTIA( T E, Sriffl�,' HEI114(3
NORTHWESTERLY CORNER OF TRACT A, OF SAID HKWN TRACT SUBDIVISION,'
THESCA S W 331 ql" C, LEAVING THE SOUTHERLY RIGU00E-WAY LIM[.
OF LEOPARD STREET, ALCHG THE COMMON BOUNDARY LT"pr E OF SAID TRACI'
B TTTTdlTp SATI')l TAACT All, A, DISTANCE 017 198 . 91 FIE T' TO A SETT CUT i
�IN CiGt,,CRE'jE MARKING THE SOUTHEASTERLY' CORN OF SArD "Nipit"ll D,
arm it pon'r lt4 140wNlEAl,,Y IAN'E OF K, OF SAID Ii Awl
TRACT SUBDIVESION;
GARDERE01 -0306081
PAGE 2 OF 2
THENCE, I e9a 19' 41" & PaLNG THE SOUTHERLY 1.A314E OF SAID TRACI'
0, BEING A PORTION OF THE I40R714EIIIIA L1114E OI SX11D TIRJACT F,,, A
DISTANCK OF ID8. 14 FEET TO A SVV 4 INC,14 LP110I19 ROD IiC[T�l BPI CAP,
IIARK,ING '][Fifl,"', �30UTHWESTERLY CORNER OF SAID TRACI' 10 BEING A POIN'll'
rN THE EASTERLY LINE OF SAID TRACT C;
THENCE, S 000 40' 53" E, A 1`OIRT1 C114 4�)F THIF EAS`1'19I!ILY LINIF, OF
SnID TRACT Q BEING A P11R`1 10V 017' 'PHE 4E1"ITI.!RL1" LlhE Of' SXID VIA1,77
X, A DISTMQCK OF 200. 90 FIVES' TO A 1`01,fl'i'lI3 5/8 lll I'i IRON I40c)
HARKING THE SOUTHEASTERLY COMIER OF SAID TRAM" V BEING THE
NORTHEASTERLY CORNER OF TRACT V, OF SAID MAWN TRACT S1.1B1D IVIS100
THENCE, N U90 10" 30 IN ALONG THE NORTHCRLY LINE OF SAID TRACT
F, 11 11„11 A PORTION OF THE SOWnUMLY LINE 0[7 SAID TlIkAClT C, A
DISTANCE OF' 216 - 19 FEET TO A F'CUNq) 5,M19" 11RON R(X)� IIIXR�!<ING 711E
NOR7HEASTERIN CORNER OF SKID TRACT 11 OCING "MUR NOn'THWESTERLY
CrQdlIfl�R OF SAID TRP"VP F,;
6 00- 39" 34- & ;aDNG THE WESV.�ftl,Y LINE OF SAID 1`411C1
F, Rl"I'J"IN"; EASTERLY LINES OF SAID '111kACT D X 111') SAID E, ll�,
DISTANCE OF 527 , 09 FEET TO A FOUND SIB INCH IRDN ROD LOCATED 111
THE NORTHERLY RIGHT-CF-WRY LINE OF LIPAN STREET, BEING THE
SOUTHWESTERLY CORNER OF SAID TRACT N M SAME 11EH4 THE
SOUTHEASTERLY CORNER OF SAID TRACT V
THENCE i, S 85- 44' 13- W, nLONG THE: MORTill ERLY R IIGH'T-Oi`WAY WINE
OF LIPAll Sl"IREET, HEING THE SOUTHERLY OF' SA�lr) 'fl(ACT E, A
CIE' 250,,03 1710 THE POINT = EZGVMnNG# COICTAINING A14
AREA OF 1H .212 ACRES (351 , 713 SO, FT. ) Or LAND, MORE CS LISS&
GARDERE01 -6306081