HomeMy WebLinkAboutC2015-464 - 1/30/2015 - NA HOME LOAN.AGREEMENT
between the
CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION (CCCIC)
and
TG 110 LEXINGTON, LP
(Whose general partner is TG 110 Lexington GP, LLC, and the sole member of
the general partner is TG110, Inc. a Community Housing Development Organization (CHDO)
acting in the capacity of a Sponsor)
STATE OF TEXAS §
COUNTY OF NUECES §
This HOME LOAN AGREEMENT (hereinafter "AGREEMENT") is hereby made and
entered into to be effective as of January 30, 2015, by and between the Corpus Christi
Community Improvement Corporation (hereinafter "CCCIC"), a Texas nonprofit corporation,
acting by and through its General Manager, and TG 110 LEXINGTON, LP, a Texas limited
partnership organized under the laws of the State of Texas (hereinafter"BORROWER").
The general partner of the BORROWER is TG 110 Lexington GP, LLC, a Texas limited
liability company, for which the sole member is TG110, Inc., a Texas nonprofit corporation and
a CHDO acting in the capacity of a Sponsor.
The parties to this Agreement have severally and collectively agreed and by the
execution of this Agreement are bound to the mutual obligations and to the performance and
accomplishments of the tasks described in this Agreement.
WHEREAS, the general partner of the BORROWER is TG 110 Lexington GP, LLC, a
Texas limited liability company, for which the sole member is TG110, Inc., a Texas nonprofit
corporation and a CHDO acting in the capacity of a Sponsor, any partnership agreement
between said entities must provide that it does not permit the CHDO or its subsidiary to be
removed as sole general partner or sole managing member, whichever is applicable, except for
cause. If the partnership agreement permits removal of the CHDO or its subsidiary for cause, it
must also stipulate that the new sole general partner or managing member, whichever
applicable, can only be another CHDO.
WHEREAS, CCCIC, through the City of Corpus Christi, Texas (hereinafter "CITY"), has
received certain funds from the U.S. Department of Housing and Urban Development ("HUD")
under Title II of the National Affordable Housing Act of 1990, (P.L. 101-625) for utilization in
connection with its HOME Investment Partnerships Program (hereinafter "HOME Program");
and
WHEREAS, CCCIC has adopted a budget for such funds and has included therein the
expenditure of $918,000 of FY2014 HOME funds in the form of a subsidy loan with 3% interest
for a 40-year term with payments amortized over 40 years and paid from available net cash flow
(hereinafter "Loan") to BORROWER for the construction of a residential rental affordable
housing apartment project entitled, "Lexington Manor" (hereinafter"Project"); and
2015-464
1/30/15 .IC and TG 110 Lexington,LP Page 1 of 47
CCCIC - 10/28/14
TG 110 Lexington LP
INDEXED
WHEREAS, CCCIC wishes to make the Loan to BORROWER in connection with the
demolition of existing improvements and the construction (collectively, hereinafter,
"construction") of the Project; and
WHEREAS, as a part of said Project implementation and management by BORROWER,
it is proposed that the Loan be made to BORROWER for, among other things, for construction
of the Project upon real property described as:
Lot Four (4), BOULEVARD ACRES ANNEX LOT 4, an Addition in the City of
Corpus Christi, Texas, according to map or plat thereof recorded in Volume 68,
Page 173, Map Records of Nueces County, Texas
and in the Preliminary Budget and Construction Schedule which are attached to this
Agreement as Exhibit A, incorporated herein and made a part hereof for all purposes (such real
property and any and all improvements located or to be located on the real property are referred
to herein as the "Property"), such Loan to be secured by, among other things, the Deed of Trust
and the Assignment (each hereinafter defined) filed of record against the Property; and
WHEREAS, BORROWER shall execute a covenant ("Restrictive Covenant of
Affordability"), to bind the Property for a period of twenty (20) years, to the terms set out in this
Agreement and in the sample of the Restrictive Covenant of Affordability is attached to this
Agreement as Exhibit B. The executed Restrictive Covenant of Affordability will then replace
the sample Exhibit B attached to this Agreement. The text of the executed Restrictive
Covenant of Affordability is then, by agreement of the parties, incorporated into this Agreement
by reference, and the executed Restrictive Covenant of Affordability will be recorded in the
official deed records of Nueces County, Texas.
NOW THEREFORE, the parties hereto severally and collectively agree, and by the
execution hereof are bound, to the mutual obligations herein contained and to the performance
and accomplishment of the tasks hereinafter described:
I. TERM
1.1 This Agreement commences on the date of execution by CCCIC and terminates on the
end of the Note term, unless otherwise specifically provided by the terms of this Agreement.
Except as otherwise provided for pursuant to the provisions hereof, this Agreement shall
commence immediately upon its execution and shall terminate at the end of the 40-year
amortization of the Loan, with terms of repayment set forth in the Note. (See Loan Amortization
Schedule attached as Exhibit C.)
1.2 The completion date for construction work for the Project, which for purposes of this
Agreement and the other Loan Documents shall be evidenced by the issuance of certificates of
occupancy (or the jurisdictional equivalent) for the buildings located on the Property, shall be no
later than December 31, 2016.
1.3 The recital paragraphs and statements above preceding this Term section are hereby
incorporated into and made a part of this Agreement and the parties acknowledge that all such
paragraphs and statements are true.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 2 of 47
II. SCOPE OF WORK
2.1 The Project will consist of reconstruction of 153 affordable multi-family housing units.
HOME funds provided under this Agreement will be utilized for the construction of seven (7)
HOME assisted floating units. Designation of the HOME assisted units shall be as follows: two
(2) one-bedroom units, two (2) two-bedroom units, two (2) three-bedroom units, and one (1)
four-bedroom unit. HOME subsidy does not exceed the limits provided at §221(D)(3) of the
National Housing Act, see Exhibit D for limits provided.
III. DEFINITIONS
3.1 For purposes of this Agreement, in addition to the definitions and references set forth
throughout this AGREEMENT, the following terms shall have the meanings indicated:
Business Day: Every day of the week, except all Saturdays, Sundays and those
scheduled holidays officially adopted and approved by the CITY's City Council for its
employees.
Environmental Law: Any federal, state, or local law, statute, ordinance, or regulation,
pertaining to health, industrial hygiene, or the environmental conditions on, under, or
about the Property, including without limitation, the following, as now or hereafter
amended, Comprehensive Environmental Response, Compensation, and Liability Act of
1980 ("CERCLA"), 42 U.S.C.A. §9601 et seq.; Resource, Conservation and Recovery
Act, 24 U.S.C.A. §6901 et seq. as amended by the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613; the Toxic Substances
Control Act, 15 U.S.C.A. §2601 et seq.; Emergency Planning and Community Right to
Know Act of 1986, 42 U.S.C.A. §1101 et seq.; Clean Water Act ("CWA"), 33 U.S.C.A.
§1251 et seq., Clean Air Act, 42 U.S.C.A. §7401 et seq.; Federal Water Pollution Control
Act, 33 U.S.C.A. §1251 et seq.; and any corresponding state laws or ordinances
including but not limited to the Texas Water Code §26.001 et seq.; Texas Health &
Safety Code §361.001 et seq.; Texas Solid Waste Disposal Act, Tex. Rev. Civ. Stat.
Ann. Art. 4477-7; and regulations, rules, guidelines, or standards promulgated pursuant
to such laws, statute and regulations, as such statutes, regulations, rules, guidelines,
and standards are amended from time to time.
Environmental Report: A report prepared by a reputable engineer or other party
satisfactory to CCCIC, in its reasonable determination and/or discretion, and in such
detail as CCCIC may require, indicating that no part of the Property is contaminated with
Hazardous Materials or is subject to undue risk of contamination by Hazardous
Materials, other than as described in that Phase I Environmental Site Assessment
prepared by Astex Environmental Services, dated November 14, 2014, bearing Job No.
AES-14-9857.
First Lien Lender: Wells Fargo, National Association, a national banking association,
together with its successors and assigns.
First Lien Loan — The loan from the First Lien Lender to BORROWER in the amount of
$16,332,000.00, and which will be governed and secured by the First Lien Loan
Documents.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 3 of 47
First Lien Loan Documents: The documents governing, securing and/or evidencing the
First Lien Loan, including the Promissory Note dated on or about even date herewith in
the original principal sum of $16,332,000.00 executed by BORROWER for the benefit of
First Lien Lender. BORROWER agrees to provide a copy of the First Lien Loan
Documents upon request from CCCIC.
Governmental Authority: Any and all courts, boards, agencies, commissions, offices or
authorities of any nature whatsoever for any governmental unit (federal, state, county,
district, municipal, city or otherwise) whether now or hereafter in existence, having
jurisdiction over the applicable matter.
Hazardous Materials: Any flammables, explosives, radioactive materials, asbestos,
petroleum products or other hazardous waste, including, without limitation, substances
defined as "hazardous substances," "hazardous materials" or "toxic substances" in any
Environmental Law; excluding however, standard prepackaged household items and
supplies and materials necessary for the construction and operation of the Property.
Improvements: The improvements now or hereafter located on the Property and being
generally described as reconstruction of a 153-unit multifamily rental development
located in Corpus Christi, Nueces County, Texas.
Leases: Any and all leases, subleases, licenses, concessions or other agreements
(written or oral, now or hereafter in effect) which grant a possessory interest in and to, or
the right to use, all or any part of the Property, together with all security and other
deposits made in connection therewith, and all other agreements, such as engineer's
contracts, utility contracts, maintenance agreements and service contracts, which in any
way relate to the design, use, occupancy, operation, maintenance, enjoyment or
ownership of the Property, save and except any and all leases, subleases or other
agreements pursuant to which BORROWER is granted a possessory interest in the
Property and easement agreements filed of record prior to the Deed of Trust.
Legal Requirements: All laws, ordinances, statutes, codes, rules, regulations, orders
and decrees of the United States, the state, the county, the city, or any other political
subdivision in which the Property is located, and any other political subdivision, agency
or instrumentality exercising jurisdiction over BORROWER, or the Property, including,
without limitation, the following (to the extent applicable to the Property): the Civil Rights
Act of 1964 (42 U.S.C. 2000(d); Equal Opportunity in Housing (Executive Order 11063,
as amended by Executive Order 12259); Executive Order 11246; Age Discrimination Act
of 1975 (42 U.S.C. 6101 et seq.); Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.);
Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); Fair Housing Act (42 U.S.C. 3601 et
seq.); the Americans with Disabilities Act of 1990 (P.L. 101-336; Section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794); Architectural Barriers Act of 1968 (42 U.S.C.
4151 et seq.); Federal Drug Free Workplace Act of 1988 and the regulations
promulgated thereunder including, without limitation, 54 CFR Part 4956, Section 3 of the
Housing and Urban Development Act of 1968; Executive Orders 11625, 12432 and
12138, as amended; the Copeland "Anti-Kickback" Act (18 U.S.C. § 874 et seq.);
Sections 103 and 107 of the Work Hours and Safety Standards Act. (40 U.S.C. § 327 et
seq.); the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42
U.S.C. § 4201 et seq.); the Housing and Community Development Act of 1974; the
National Environmental Policy Act (42 U.S.C. § 4321 et seq.); ("NEPA"); the Lead-Based
Paint Poisoning Prevention Act (42 U.S.C. § 4321 et seq.); the State of Texas Senate
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 4 of 47
Bill 1356; Title 8, and Chapter 92 of the Texas Property Code; Solid Waste Disposal Act
TEX. HEALTH & SAFETY CODE Ann. Ch. 361; Comprehensive Municipal Solid Waste
Management, Resource Recovery, and Conservation Act; TEX. HEALTH & SAFETY
CODE Ann. Ch. 363; County Solid Waste Control Act; TEX. HEALTH & SAFETY CODE
Ann. Ch. 364; Texas Clean Air Act, TEX. HEALTH AND SAFETY CODE Ann. Ch.; and
Hazardous Communication Act, TEXAS HEALTH AND SAFETY CODE Ann. Ch. 502;
and such Governmental Requirements as may be amended from time to time or
superseded and all of their implementing regulations, as may be amended.
Loan Documents: (i) this AGREEMENT, (ii) the "Second Lien HOME Promissory Note"
(the "Note"), (iii) the "Second Lien HOME Deed of Trust" (the "Deed of Trust"), (iv) the
"Assignment of Leases and Rentals" (the "Assignment"), (v) the "Deed Covenant to
Bind Property for Period of Affordability" (the "Covenant"), and any and all other
documents now or hereafter executed by BORROWER to evidence or secure the
payment of the Indebtedness or the performance of the Obligations.
Obligations: Any and all of the covenants, conditions, warranties, representations and
other obligations (other than to repay the Indebtedness) made or undertaken by
BORROWER for the benefit of CCCIC as set forth in any of the Loan Documents.
Plans: Any and all contracts and agreements, written or oral, between Architect and
BORROWER, together with the final plans, specifications, shop drawings and other
technical descriptions prepared for the construction of the Improvements, and all
amendments and modifications thereof.
Property: Defined herein above.
Subordination Agreement: That Intercreditor and Subordination Agreement dated of
even date herewith executed by CCCIC, BORROWER and First Lien Lender.
Third Lien Lender: TG 110, Inc., a Texas non-profit corporation, together with its
successors and assigns.
Third Lien Loan — The loan from the Third Lien Lender in the amount of $700,000.00,
and which will be governed and secured by the Third Lien Loan Documents.
Third Lien Loan Documents: The documents governing, securing and/or evidencing the
Third Lien Loan, including the Promissory Note dated on or about even date herewith in
the original principal sum of$700,000.00 executed for the benefit of Third Lien Lender.
IV. REPRESENTATIVES
4.1 Unless written notification by BORROWER to the contrary is received and approved by
CCCIC, the Executive Director of TG 110, Inc., shall be BORROWER's designated
representative responsible for the management of all contractual matters pertaining to this
AGREEMENT.
4.2 CCCIC, acting through staff designated by the General Manager, is responsible for the
administration of this AGREEMENT.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 5 of 47
4.3 Communications between CCCIC and BORROWER shall be directed to the designated
representatives of each as set forth in paragraphs numbered 4.1 and 4.2 hereinabove.
V. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
1.1 BORROWER understands that funds provided to it pursuant to this AGREEMENT are
funds, which have been made available to CCCIC, through the CITY, by the federal government
under the HOME Investment Partnerships Program (Final Rule) and in accordance with CITY's
HUD-approved Grant Application and with other specific assurances made and executed by
CITY. BORROWER, therefore, assures and certifies that it will comply, in all material respects,
with the requirements of the HOME Investment Partnerships Program (Final Rule) and with all
regulations promulgated thereunder, codified at Title 24 of the Code of Federal Regulations.
BORROWER understands, however, that the HOME Investment Partnerships Program (Final
Rule) in no way is meant to constitute a complete compilation of all duties imposed upon
BORROWER by law or administrative ruling, or to narrow the standards which BORROWER
must follow. Accordingly, BORROWER understands that if the regulations and issuances
promulgated pursuant to the HOME Investment Partnerships Program (Final Rule) are
amended or revised, it shall comply with them, if required, or otherwise promptly notify CCCIC
pursuant to the provisions of this AGREEMENT.
5.2 BORROWER understands that summaries of certain compliance requirements
mandated by applicable laws or regulations are available from CCCIC, and that BORROWER
must at all times remain in compliance therewith; BORROWER further understands that said
summaries are intended only as such and in no way are meant to constitute a complete
compilation of all duties imposed upon BORROWER by law or administrative ruling, or to
narrow the standards which BORROWER must follow.
5.3 BORROWER will inform all contractors and subcontractors receiving funds in connection
with this Project that they shall comply with any and all applicable federal and state laws, rules
and regulations and that provisions mandating compliance with all applicable federal and state
laws, rules, and regulations will be included as part of every contract awarded in connection with
this Project.
5.4 BORROWER shall observe and comply with all Legal Requirements in all material
respects.
VI. BORROWER'S WARRANTIES AND REPRESENTATIONS
6.1 Responsibility. BORROWER shall be solely responsible for all aspects of
BORROWER's business and conduct in connection with the construction of the Property,
including without limitation:
(A) The quality and suitability of the Plans;
(B) Supervision of the construction of the Improvements;
(C) The qualifications, financial condition and performance of all architects,
engineers, contractors, subcontractors, material suppliers, consultants, and property
managers;
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 6 of 47
(D) Conformance of construction of the Improvements to all Legal Requirements and
to the requirements of this Agreement; and
(E) The quality and suitability of all materials and workmanship.
(F) The performance of the Project, of all services and activities set forth in this
AGREEMENT.
6.2 Performance. BORROWER hereby accepts responsibility for the performance, in a
satisfactory and efficient manner as determined by CCCIC, in its reasonable determination
and/or discretion, of all services and activities set forth in this AGREEMENT.
6.3 Legal Authority. All action on BORROWER's part requisite for the due authorization,
creation, issuance, execution and delivery of this AGREEMENT and the other Loan Documents
has been duly and effectively taken. More specifically, BORROWER possess the legal
authority, pursuant to any proper, appropriate and official motion, resolution or action passed or
taken, to enter into this AGREEMENT and the Loan Documents and to perform the
responsibilities herein required, and each of the Loan Documents entered into by BORROWER
constitutes a legal and binding obligation of, and is valid and enforceable against, BORROWER
and the Property (as the case may be) in accordance with the terms thereof.
6.4 Executive Director Authority. BORROWER represents, warrants, assures and
guarantees that the individual, herein the Executive Director of TG 110, Inc., executing this
AGREEMENT has full legal authority to execute this AGREEMENT on behalf of BORROWER ,
as applicable, and to bind BORROWER, as applicable, to all terms, performances and
provisions herein contained.
6.5 Documentation of Authority. BORROWER has delivered to CCCIC duly executed
documentation creating and lawfully establishing BORROWER, including evidence of any
required filing with the Secretary of State of the State of Texas.
6.6 Dispute as to Legal Authority. In the event that a dispute arises as to the legal authority
to enter into this AGREEMENT of either the BORROWER or the person signing on behalf of
BORROWER, and same is not dismissed within ninety (90) days, CCCIC shall have the right, at
its option, to either temporarily suspend or permanently terminate this AGREEMENT. Should
CCCIC suspend or permanently terminate this AGREEMENT pursuant to this paragraph,
however, BORROWER shall be liable to CCCIC for any money it has received from CCCIC for
performance of any of the provisions hereof.
6.7 Claims. Except as may be otherwise set forth on any exhibit attached hereto, there are
no claims, demands, suits, proceedings, causes of action or other actions (hereinafter
collectively referred to as "claims") of a material nature pending or, to the knowledge of
BORROWER, threatened against or affecting BORROWER or the Property, or involving the
validity or enforceability of the Deed of Trust or the priority of the liens and security interests
created therein; and no event has occurred (including specifically BORROWER's execution of
the respective Loan Documents, and Borrower's consummation of the Loan) which will violate,
be in conflict with, result in the breach of or constitute (with due notice or lapse of time, or both)
a default under any Legal Requirement or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever on the Property other than the liens and security
interests created by or expressly permitted under the Loan Documents.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 7 of 47
6.8 Notice of Claims. In the event that any material claims are made or brought against
BORROWER or the Property, BORROWER shall give written notice thereof to CCCIC within
five (5) business days after itself being notified. BORROWER's notice to CCCIC shall state the
date BORROWER received written notice of the claim; the names and addresses of those
instituting or threatening to institute the claim, the basis of the claim; and the name(s) of any
others against whom the claim is being made or threatened. Written notice pursuant to this
Article shall be delivered in accordance with the terms of Section 38.2 of this AGREEMENT.
6.9 Compliance with Legal Requirements.
(A) BORROWER has (or will have when required) (i) received all requisite building
permits and approvals required for the commencement of construction of the Project, (ii)
filed and/or recorded all requisite plats and other instruments, and (iii) complied or
ensured the compliance with all Legal Requirements required to be met prior to
commencement of the demolition or reconstruction work done in connection with the
Project.
(B) The HOME assisted units to be constructed in accordance with this AGREEMENT
must, at a minimum, meet or exceed the requirements of the Texas Property Code
relating to security devices and other applicable requirements for residential tenancies
and will adhere to the City of Corpus Christi Building Code, and all other required
property standards in accordance with 24 C.F.R. § 92.251.
(C) BORROWER shall ensure that the Property meets the lead-based paint
requirements set forth in 24 CFR Part 35 Subparts A, B, J, K, M, and R, as applicable.
6.10 Notice to Proceed. BORROWER must receive a "Notice to Proceed" from First Lien
Lender and CCCIC prior to the start of any construction activities and/or prior to disbursements
of funding for eligible costs, other than amounts funded at the closing of the purchase of the
Property.
6.11 Streets, Easement, Utilities and Services. All streets, easements, utilities and related
services necessary for the construction of the Improvements and the operation thereof for their
intended purpose are (or will be when required) available to the boundaries of the Land,
including, without limitation, potable water, storm and sanitary sewer, gas, electric, telephone
and garbage removal.
VII. ENVIRONMENTAL LAW REQUIREMENTS
7.1 Based upon the Environmental Report, BORROWER warrants that, to the best of
BORROWER's knowledge, the Property has not been the site of any activity that would violate
any past or present Legal Requirements, including, without limitation, any Environmental Law,
except as disclosed in the Environmental Report. Specifically, without limitation, except as
disclosed in the Environmental Report, (i) no solid waste, as that term is defined in the Texas
Solid Waste Disposal Act, and no petroleum or petroleum products have been handled on the
Property such that they may have leaked or spilled on to the Property or contaminated the
Property, (ii) there is no on-site contamination resulting from activities on the Property or
adjacent tracts, (iii) there is no off-site contamination resulting from activities on the Property,
(iv) the Property contains no Hazardous Materials, and (v) there are no underground storage
tanks located in, on or under the Property.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 8 of 47
VIII. MAINTENANCE OF EFFORT
8.1 BORROWER agrees that the funds and resources provided to it under the terms of this
AGREEMENT shall in no way be substituted for funds and resources provided from other
sources, nor shall such funds and resources in any way serve to reduce the funds, resources,
services, or other benefits which would have been available to, or provided through,
BORROWER had this AGREEMENT not been executed.
IX. PERFORMANCE BY BORROWER
9.1 BORROWER, in accordance and compliance with the terms, provisions and
requirements of this AGREEMENT, shall manage, perform and provide all of the activities and
services required under this AGREEMENT in connection with the Project to CCCIC's
satisfaction, in its reasonable determination and/or discretion. The funds available for utilization
hereunder shall be expended only in accordance with the terms of this AGREEMENT for
construction of seven (7) HOME assisted units. BORROWER shall submit a Project budget and
construction schedule ("Construction Schedule") within ten (10) days of start of construction
activities, to replace the Preliminary Budget and Construction Schedule at Exhibit A.
X. DRAW REQUESTS
10.1 Provided no Event of Default (as defined in the Deed of Trust) has occurred and remains
uncured, CCCIC will deliver funding reimbursement to BORROWER, to be used by
BORROWER to construct the Project, up to Nine Hundred Eighteen Thousand and No/100
Dollars ($918,000), upon request of the BORROWER as work in place is completed and
construction work has been verified by CCCIC. City shall retain 10% of the funds or $91,800
until construction of the Project is complete. Upon completion of Project construction, the City
will deliver$91,800 to BORROWER.
10.2 BORROWER estimates the following draw schedule, which CCCIC hereby approves;
provided, however, BORROWER shall not be bound by the following draw schedule:
Draw 1 - $100,000 --- estimated June 2015
Draw 2 - $200,000 --- estimated July 2015
Draw 3 - $200,000 --- estimated August 2015
Draw 4 - $200,000 --- estimated September 2015
Draw 5 - $126,200 --- estimated October 2015
Subtotal=$826,200
Upon completion of Project construction funding in the amount of $91,800 will be delivered to
BORROWER.
Xl. FURTHER REPRESENTATIONS, WARRANTIES AND COVENANTS
11.1 Except as otherwise provided in the Permitted Exceptions (as defined in the Deed of
Trust), prior to and during the period of time that payment may be made hereunder and so long
as any payments remain unliquidated, BORROWER covenants that it shall not, without the prior
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 9 of 47
written consent of CCCIC's General Manager or his designate, such consent not to be
unreasonably delayed, withheld or conditioned:
(A) Further mortgage, pledge, or otherwise encumber or cause to be encumbered
any of the assets of BORROWER now owned or hereafter acquired by it, except for
pursuant to the First Lien Loan Documents, the Loan Documents, the Third Lien Loan
Documents, and any refinancing of the First Lien Loan and/or the Third Lien Loan, and
CCCIC expressly permits such refinancings;
(B) Permit any pre-existing mortgages, liens, or other encumbrances to remain on or
attached to any of the assets of BORROWER which are allocated to the performance of
this AGREEMENT and with respect to which CCCIC has ownership hereunder;
(C) Sell, assign, pledge, transfer or otherwise dispose of BORROWER's accounts
receivable, notes or claims for money due or to become due, other than to the First Lien
Lender, the Third Lien Lender, BORROWER, and other than collateral assignments by
BORROWER'S general partner of its interests in Borrower to secure funding for the
Project, removal of BORROWER's general partner in accordance with the terms of
BORROWER's partnership agreement, and transfers by borrower's limited partners of
their limited partnership interests in BORROWER pursuant to BORROWER's
partnership agreement.
(D) Sell, convey, or lease all or any substantial part of BORROWER's assets other
than for residential use; or
(E) Make any advance or loan to, or incur any liability as guarantor, surety or
accommodation endorser for any other firm, person, entity or corporation.
11.2 Each of the foregoing representations, warranties and covenants shall be continuing and
deemed repeated each time BORROWER submits a new request for disbursement of proceeds
of the Loan in accordance with the terms, provisions and requirements of this AGREEMENT.
XII. EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
12.1 BORROWER shall comply with all applicable local, state and federal equal employment
opportunity and affirmative action rules, regulations and laws.
XIII. NONDISCRIMINATION
13.1 BORROWER covenants that it, or its agents, employees or anyone under its control, will
not discriminate against any individual or group on account of race, color, sex, age, religion,
national origin, handicap or familial status, in employment practices or in the use of or admission
to the Property, which said discrimination BORROWER acknowledges is prohibited.
XIV. CONFLICT OF INTEREST
14.1 BORROWER covenants that neither it nor any member of its governing body or of its
staff presently has any interest, direct or indirect, which would conflict in any manner or degree
with the performance of services required to be performed under this AGREEMENT.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 10 of 47
BORROWER further covenants that in the performance of this AGREEMENT, no persons
having such interest shall be employed or appointed as a member of its governing body or of its
staff.
14.2 BORROWER further covenants that no member of its governing body or of its staff shall
possess any interest in, or use their position for, a purpose that is or gives the appearance of
being motivated by desire for private gain for themselves or others, particularly those with which
they have family, business, or other ties.
14.3 No member of CCCIC's governing body or of its staff who exercises any function or
responsibility in the review or approval of the undertaking or carrying out of this AGREEMENT
shall:
(A) Participate in any decision relating to this AGREEMENT, which may affect his or
her personal interest or the interest of any corporation, partnership, or association in
which he or she has a direct or indirect interest; or
(B) Have any direct or indirect interest in this AGREEMENT or the proceeds thereof.
XV. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
PROPOSED DEBARMENT, AND OTHER
RESPONSIBILITY MATTERS
15.1 BORROWER shall comply with non-procurement, debarment and suspension standards
set forth in 2 CFR Part 180, Subpart C, as required by 2 CFR Part 2424 and shall not employ,
award a contract to, or fund any person that has been debarred, suspended, proposed for
debarment or placed on ineligibility status by HUD or the Department.
15.2 BORROWER certifies, and CCCIC relies thereon in execution of this AGREEMENT, that
neither BORROWER nor its Principals are presently debarred, suspended, proposed for
debarment, or declared ineligible, or voluntarily excluded for the award, proposed for
debarment, or declared ineligible, or voluntarily excluded for the award of contracts by any
Federal governmental agency or department.
15.3 "Principals," for the purposes of this certification, means officers, directors, owners,
partners, and persons having primary management or supervisory responsibilities within a
business entity (e.g., general manager, plant manager, head of subsidiary, division, or business
segment, and similar positions).
15.4 BORROWER shall provide prompt written notice to CCCIC, in accordance with the
AGREEMENT if, at any time during the term of this AGREEMENT, including any renewals
hereof, BORROWER learns that its certification was erroneous when made or has become
erroneous by reason of changed circumstances.
15.5 BORROWER's certification is a material representation of fact upon which CCCIC has
relied in entering into this AGREEMENT. Should CCCIC determine, at any time during this
AGREEMENT, including any renewals hereof, that this certification is false, or should it become
false due to changed circumstances, CCCIC may terminate this AGREEMENT in accordance
with the Termination provision herein.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 11 of 47
XVI. SUB-CONTRACTING
16.1 Any other clause of this AGREEMENT to the contrary notwithstanding, none of the work
or services covered by this AGREEMENT shall be sub-contracted without the prior written
approval of CCCIC. Any work or services approved for sub-contracting hereunder, however,
shall be sub-contracted only by written contract or agreement and, unless specific waiver is
granted in writing by CCCIC, shall be subject by its terms to each and every provision of this
AGREEMENT. Compliance by sub-contractors with this AGREEMENT shall be the
responsibility of BORROWER. Notwithstanding the foregoing, CCCIC acknowledges that
BORROWER will enter into a construction contract with a general contractor and a development
agreement with a developer, for each party to provide services with respect to the construction
of the Project. Such sub-contractors are expressly permitted, and it is acknowledged that the
general contractor and the developer will be permitted to sub-contract certain services under
their respective contracts.
16.2 BORROWER agrees that no sub-contract approved pursuant to this AGREEMENT shall
provide for payment on a "cost plus a percentage of cost" basis.
16.3 Despite CCCIC approval of a sub-contract, CCCIC shall in no event be obligated to any
third party, including any sub-contractor of BORROWER, for performance of work or services,
nor shall CCCIC funds ever be used for payment of work or services performed prior to the date
of AGREEMENT execution or extending beyond the date of AGREEMENT expiration.
XVII. RECORDS AND REPORTS, and MONITORING AND INSPECTION
17.1 Records and Reports.
(A) Any and all information, reports, papers and other data (including, without limitation,
any and all balance sheets, statements of income or loss, reconciliation of surplus and
financial data of any other kind) heretofore furnished, or to be furnished, to CCCIC by or
on behalf of BORROWER are, or when delivered will be, true and correct in all material
respects; all financial data has been, or when delivered will have been, prepared in
accordance with generally accepted accounting principles consistently applied and fully
and accurately present, or will present, the financial condition of the subjects thereof as
of the dates thereof; and, with respect to the financial data heretofore furnished, no
materially adverse change has occurred in the financial condition reflected therein since
the dates thereof.
(B) Maintenance of records shall be in compliance with all terms, provisions and
requirements of this Agreement and with all applicable federal and state regulations
establishing standards for financial management; and
Record system shall contain sufficient documentation to provide in detail full support of
each expenditure.
BORROWER agrees to retain, for the period of time and under the conditions specified
in writing by CCCIC, all books, records, documents, reports, and written accounting
policies and procedures pertaining to the Project and expenditures of funds under this
Agreement, and as in accordance with 24 CFR 92.508(c)(1)(4).
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 12 of 47
(C) At any reasonable time and as often as CCCIC may deem necessary in its
reasonable determination, BORROWER shall make all of its records available to CCCIC,
HUD, or any of their agents or authorized representatives, and shall permit CCCIC,
HUD, or any of their agents or authorized representatives to audit, examine, and make
excerpts and/or copies of same. BORROWER's records shall include, but shall not be
limited to, the following: books, records, accounting data and other documents of
Borrower that relate in any way to the Property, including without limiting the generality
of the foregoing, all permits, licenses, consents and approvals of all Governmental
Authorities having jurisdiction over Borrower or the Property. Borrower shall furnish
CCCIC with convenient facilities for the foregoing purpose.
(D) At a minimum, quarterly performance records and reports shall be submitted to
CCCIC by BORROWER on or before the twentieth (20th) calendar day of January,
April, July and October with each report reflecting the previous quarter. During
construction of the Project, the monthly report shall contain details related to
construction progress. Following completion of the Project, such report shall contain
details related to the financial performance (including leasing activity and an income
statement regarding the Project). The form of such report must meet the approval of
CCCIC, and BORROWER agrees to make any and all changes to such form as may be
recommended by CCCIC, as well as provide additional information in connection with
such reports as may be requested by CCCIC, both in CCCIC's reasonable
determination. CCCIC agrees to accept copies of any monthly reports that may be
submitted to First Lien Lender or BORROWER's investor limited partner in satisfaction of
this requirement.
17.2 Monitoring and Inspection.
(A) CCCIC, through its officers, agents or employees, shall, with reasonable prior notice
delivered to Borrower, have the right to enter upon the Property and perform on-site
monitoring and inspection to determine that Borrower's performance is in conformity with
the Plans and all the requirements of the AGREEMENT during regular business hours.
(B) With reasonable notice to BORROWER, and in accordance with the leases affecting
the Property, BORROWER agrees that CCCIC and HUD may, at CCCIC's and HUD's
sole discretion, carry out monitoring and evaluation activities so as to ensure compliance
by BORROWER.
(C) BORROWER agrees to cooperate with CCCIC in the development, implementation
and maintenance of record-keeping systems and to provide CCCIC with any data
determined by CCCIC in reasonable determination and/or discretion, to be necessary for
its effective fulfillment of its monitoring and evaluation responsibilities.
(D) BORROWER agrees that it will cooperate with CCCIC and HUD in such a way so as
not to obstruct or delay CCCIC or HUD in its monitoring of BORROWER's performance
and that BORROWER will designate one of its staff to coordinate the monitoring process
as requested by CCCIC and/or HUD staff.
(E) After each official monitoring visit, CCCIC shall provide BORROWER with a written
report of monitoring findings.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 13 of 47
17.3 Copies of any fiscal, management, or audit reports related to the Property delivered to
BORROWER by any of BORROWER's funding or regulatory bodies that contain materially
adverse findings shall be submitted by BORROWER to CCCIC's General Manager or designate
within five (5) business days of receipt thereof by BORROWER.
17.4 It is expressly understood and agreed that CCCIC shall have no duty to supervise or to
inspect the construction activities or any books and records, and that any such inspection shall
be for the sole purpose of determining whether or not the obligations of BORROWER are being
properly discharged and to preserving CCCIC's rights hereunder. If CCCIC or its agent acting
on its behalf inspects the construction activities or any books and records, CCCIC shall have no
liability or obligation to BORROWER or any third party arising out of such inspection. CCCIC's
failure to inspect the construction activities or any part thereof or any books and records shall
not constitute a waiver of any of CCCIC's rights hereunder. Neither BORROWER nor any third
party shall be entitled to rely upon any such inspection or review.
XVIII. AUDITS, BONDING AND INSURANCE
18.1 Audits.
(A) Unless otherwise directed by CCCIC, BORROWER shall arrange for the
performance of an annual financial and compliance audit of funds received and
performances rendered under this AGREEMENT, subject of the following conditions and
limitations:
(i) BORROWER shall have an audit made in accordance with 24 CFR 92.506, 24
CFR Part 44. or OMB Circular A-133 for any of its fiscal years included within the
AGREEMENT period specified in Section II of this AGREEMENT in which
BORROWER receives more than $500,000 in federal financial assistance provided
by a federal agency in the form of grants, agreements, loans, loan guarantees,
property, cooperative agreements, interest subsidies, insurance or direct
appropriations, but federal financial assistance does not include direct federal cash
assistance to individuals or low-income housing credits. The term includes awards
of federal financial assistance received directly from federal agencies, or indirectly
through other units of state and local government.
(ii) Intentionally omitted.
(iii) Notwithstanding provisions of this AGREEMENT to the contrary, BORROWER
may utilize funds budgeted under this AGREEMENT to pay for that portion of the
cost of such audit services properly allocable to the activities funded by CCCIC
under this AGREEMENT; provided, however, that CCCIC shall not make payment
for the cost of such audit services until CCCIC has received such audit report from
BORROWER.
(iv) Unless otherwise specifically authorized by CCCIC in writing, BORROWER shall
submit the report of such audit to CCCIC within thirty (30) days after BORROWER's
receipt of the completed audit, but no later than one (1) year after the end of each
federal fiscal period included within the period of this AGREEMENT. Audits
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 14 of 47
performed under subsection A of this Section are subject to review and resolution by
CCCIC or its authorized representative.
(v) As part of its audit, BORROWER shall verify expenditures according to the
Budget and Construction Schedule attached and incorporated as Exhibit A.
(B) Notwithstanding subsection A of this Section 18, CCCIC reserves the right to
conduct an annual financial and compliance audit of funds received and performances
rendered under this AGREEMENT. BORROWER agrees to permit CCCIC or its
authorized agent or representative to audit BORROWER's records and to make copies
of any documents, materials, or information necessary to facilitate such audit. Should an
audit not be required by sub-section A of this Section 18, BORROWER shall provide an
annual audit to CCCIC of funds received in performance of this AGREEMENT.
(C) BORROWER understands and agrees that it shall be liable to CCCIC for any costs
disallowed pursuant to financial and compliance audit(s) of funds received under this
AGREEMENT. BORROWER further understands and agrees that reimbursement to
CCCIC of such disallowed costs shall be paid by BORROWER from funds which were
not provided or otherwise made available to BORROWER under this AGREEMENT.
(D) BORROWER shall take all necessary actions to facilitate the performance of such
audit or audits conducted pursuant to this Section 18 as CCCIC may require of
BORROWER.
18.2 Bonding and Insurance.
(A) BORROWER shall observe sound business practices with respect to providing such
bonding and insurance as would provide adequate coverage for activities under this
AGREEMENT; provided, however, that the foregoing provision of this paragraph shall in
no way be construed or deemed to limit or diminish the insurance requirements set forth
in the other Loan Documents with which BORROWER must comply and maintain.
(i) Liability Insurance. At least ten (10) days prior to start of construction,
BORROWER shall provide a Certificate of Insurance evidencing the required
insurance coverage set forth in the attached and incorporated Exhibit E.
(ii) Fire and Extended Coverage. BORROWER shall have in force throughout the
term of this Agreement and throughout the affordability period fire and extended
coverage insurance in an amount sufficient to cover the replacement cost (HOME
funds invested) in the Project. The insurance policy shall name CCCIC as a loss
payee using a standard loss payee clause. A certificate to that effect must be
provided to CCCIC prior to the commencement of construction of the Project.
(iii) Notice to CCCIC. BORROWER shall require its insurance policies to provide
that the General Manager of CCCIC shall be given thirty (30) days advance written
notice by the insurer prior to cancellation, nonrenewal, or material change of the
insurance policies required by this Section. The insurer utilized by BORROWER is
subject to approval of CCCIC. Failure to maintain such insurance will be cause for
CCCIC to take control of the Project HOME funds and will cancel any claim that
BORROWER may have to draw HOME funds under this Agreement unless and until
such failure is cured.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 15 of 47
(iv) Right to Re-evaluate and Adjust Limits. CCCIC, through its General Manager or
his designee, retains the right to, in the General Manager's reasonable discretion, re-
evaluate the insurance requirements and adjust the coverage limits, up or down,
upon thirty (30) days written notice to BORROWER. Insurance coverage limits may
not be adjusted more frequently than once per year.
(B) Upon signing this AGREEMENT, and annually thereafter for the duration of the Note,
in addition to any other requirements and obligations of BORROWER in the other Loan
Documents, BORROWER shall provide CCCIC: (1) proof of timely (i.e. before past due)
payment in full of all taxes assessed against the Property, and (2) evidence of
BORROWER' current payment status on all loans in connection with the Property and
the Project.
(C) Premiums chargeable for any and all insurance referred to in this Article will be paid
by BORROWER, at its own expense, unless otherwise authorized in writing by CCCIC,
and such insurance shall be kept in force during and throughout the term of this
AGREEMENT.
(D) BORROWER must provide to CCCIC certificates evidencing renewals or
replacements of the policies of said insurance prior to the expiration or cancellation of
any such policies. Additionally, BORROWER shall provide CCCIC evidence of the
payment of all premiums therefor.
(E) Actual losses not covered by insurance as required by this Article shall not be
allowable costs under this AGREEMENT, and shall therefore remain the sole
responsibility of BORROWER.
IXX. INDEMNIFICATION
19.1 BORROWER covenants and agrees to FULLY INDEMNIFY and HOLD
HARMLESS, CCCIC and the elected officials, employees, officers, directors,
volunteers, agents and representatives of CCCIC, individually or
collectively, from and against any and all costs, claims, liens, damages,
losses, expenses, fees, fines, penalties, proceedings, actions, demands,
causes of action, liability and suits of any kind and nature, including but
not limited to, personal or bodily injury, death and property damage, made
upon CCCIC, directly or indirectly arising out of, resulting from or related to
BORROWER's activities under this AGREEMENT, including any acts or
omissions of BORROWER, any agent, officer, director, representative,
employee, consultant, contractor or subcontractor of BORROWER, and
their respective officers, agents, employees, directors and representatives
while in the exercise or performance of the rights or duties under this
AGREEMENT, all without, however, waiving any governmental immunity
available to CCCIC under Texas law and without waiving any defenses of
the parties under Texas law. IT IS FURTHER COVENANTED AND AGREED
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 16 of 47
THAT SUCH INDEMNITY SHALL APPLY EVEN WHERE SUCH COSTS,
CLAIMS, LIENS, DAMAGES, LOSSES, EXPENSES, FEES, FINES,
PENALTIES, ACTIONS, DEMANDS, CAUSES OF ACTION, LIABILITY
AND/OR SUITS ARISE IN ANY PART FROM THE NEGLIGENCE OF CCCIC,
THE ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS,
VOLUNTEERS, AGENTS, AND REPRESENTATIVES OF CCCIC, UNDER
THIS AGREEMENT. The provisions of this INDEMNIFICATION are solely for
the benefit of the parties hereto and not intended to create or grant any
rights, contractual or otherwise, to any other person or entity. BORROWER
shall promptly advise CCCIC in writing of any claim or demand against
CCCIC or BORROWER known to BORROWER related to or arising out of
BORROWER's activities under this AGREEMENT and shall see to the
investigation and defense of such claim or demand at BORROWER'S cost.
CCCIC shall have the right, at its option and at its own expense, to
participate in such defense without relieving BORROWER of any of its
obligations under this paragraph.
19.2 It is the EXPRESS INTENT of the parties to this AGREEMENT that the
INDEMNITY provided for in this Article is an INDEMNITY extended by
BORROWER to INDEMNIFY, PROTECT, and HOLD HARMLESS CCCIC from
the consequences of CCCIC's OWN NEGLIGENCE, provided however, that
the INDEMNITY provided for in this Article SHALL APPLY only when the
NEGLIGENT ACT of CCCIC is a CONTRIBUTORY OR CONCURRENT
CAUSE of the resultant injury, death, or damage, and shall have no
application when the negligent act of CCCIC (or any of its elected officials,
employees, officers, directors, volunteers, agents, and representatives) is
the sole cause of the resultant injury, death or damage, or is the result of
CCCIC's (or any of its elected officials, employees, officers, directors,
volunteers, agents, and representatives) gross negligence and/or willful
misconduct. BORROWER further AGREES TO DEFEND, AT ITS OWN
EXPENSE and ON BEHALF OF CCCIC AND IN THE NAME OF CCCIC, any
claim or litigation brought against CCCIC and its elected officials,
employees, officers, directors, volunteers, agents, and representatives, in
connection with any such injury, death, or damage for which this
INDEMNITY shall apply, as set forth above.
19.3 It is expressly understood and agreed that BORROWER is and shall
be deemed to be an independent contractor and operator responsible to all
parties for its respective acts or omissions and that CCCIC shall in no way
be responsible therefor.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 17 of 47
XX. PUBLICITY
20.1 In any news release, sign, (other than permanent signage on the Property), brochure, or
other advertising medium disseminating information prepared or distributed by or for
BORROWER, mention shall be made of HUD funded CCCIC participation having made the
Project possible.
20.2 BORROWER will have affirmative marketing procedures to market units to persons in
the housing market area without regard to race, color, national origin, sex, religion, familial
status, or disability. The affirmative marketing requirements apply and must be followed
throughout the affordability period.
XXI. PUBLICATIONS
21.1 All published materials and written reports submitted to CCCIC pursuant to this
AGREEMENT shall be originally developed unless otherwise specifically provided for herein. If
material not originally developed is included in a report, however, said material shall have its
source identified, either in the body of the report or by footnote, regardless of whether the
material is in a verbatim or extensive paraphrase format.
21.2 All published materials submitted to CCCIC pursuant to this Project shall include the
following reference on the front cover or title page:
"This document was prepared in accordance with the City of
Corpus Christi's HOME Investment Partnerships Program, with
funding received from the United States Department of Housing
and Urban Development."
)(XII. RIGHTS TO PROPOSAL AND CONTRACTUAL MATERIAL
22.1 Copies of all finished or unfinished reports, documents, data, studies, surveys, charts,
drawings, maps, models, photographs, designs, plans, schedules, or other appended
documentation to any proposal or contract, and any responses, inquiries, correspondence and
related material submitted to CCCIC by BORROWER, shall, upon receipt, become the property
of CCCIC, unless otherwise specified.
XXIII. FUNDING APPLICATIONS
23.1 BORROWER agrees to notify CCCIC each time BORROWER is preparing or submitting
any application for funding (other than as set forth in the Permitted Exceptions and/or
BORROWER's partnership agreement) after the date hereof. When so preparing or submitting
such an application, the following procedures shall be adhered to by BORROWER:
(A) When the funding application is in the planning stages, a description of the funds
being applied for and of the proposed use for the funds shall be submitted by
BORROWER to CCCIC;
(B) Upon award or notice of award, whichever is sooner, BORROWER shall notify
CCCIC of the award or notice thereof, and of the effect, if any, of such funding on the
funds and programs agreed to hereunder. Such notice shall be submitted by
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 18 of 47
BORROWER to CCCIC, in writing, within ten (10) business days of receipt of the award
or notice thereof, together with copies of the applicable budget, personnel complement,
program description, and contract; and
(C) Except pursuant to prior written consent of CCCIC, BORROWER shall not use,
either directly or indirectly, resources provided hereunder to prepare applications for
other federal, other public or private funds, nor shall said resources be used, directly or
indirectly, as contributions.
XXIV. NOTICE AND CURE
24.1 Notwithstanding anything to the contrary set forth herein or in any of the other Loan
Documents, where it is determined that BORROWER has failed to comply with any of the terms
and/or conditions of this AGREEMENT and/or any of the terms of any of the other Loan
Documents, CCCIC shall notify BORROWER of such determination and shall grant
BORROWER ten (10) days to complete corrective monetary violations or defaults and thirty (30)
days to complete corrective non-monetary violations or defaults prior to enforcing any of it
remedies set forth herein or in any of the other Loan Documents. CCCIC hereby agrees that
any cure of any default made or offered by any of BORROWER'S limited partners or any
affiliate of any of BORROWER'S limited partners or their respective successors or assigns shall
be deemed to be a cure by BORROWER and shall be accepted or rejected on the same basis
as if made or tendered by BORROWER.
XXV. SUSPENSION OF FUNDING
25.1 Upon reasonable determination by CCCIC of BORROWER's failure to timely and
properly perform pursuant to the provisions of this AGREEMENT beyond any applicable notice
and cure period, or of any of the other Loan Documents beyond any applicable notice and cure
period, CCCIC, without limiting or waiving any rights it may otherwise have, may, at its
discretion, withhold any, all and further payments of HOME program funds to BORROWER.
25.2 The period of funding suspension shall be of such duration as CCCIC reasonably deems
appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar
days. Upon expiration of the suspension period:
(A) Should CCCIC determine that the default or deficiency has been cured,
BORROWER may, at CCCIC's option, be restored to full compliance status and paid all
eligible funds withheld during the suspension period; or
(B) Should CCCIC determine continued non-compliance, the provisions of Article XXVI
hereunder may be effectuated.
XXVI. TERMINATION
26.1 "Termination" of this AGREEMENT shall mean termination by expiration of the
AGREEMENT term or earlier termination pursuant to any of the provisions hereof.
26.2 CCCIC may terminate this AGREEMENT for any of the following reasons:
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 19 of 47
(A) Neglect or failure by BORROWER to perform or observe any of the terms,
conditions, covenants or guarantees of 1) this AGREEMENT, 2) any of the other Loan
Documents, or 3) any other valid, written contract or amendment between CCCIC and
BORROWER with respect to the Property, beyond all applicable notice and cure
periods;
(B) Termination or reduction of funding of the Project by HUD;
(C) Reserved;
(D) Reserved;
(E) Appointment of a trustee, receiver or liquidator for all or a material part of
BORROWER's Property, or institution of bankruptcy, reorganization, rearrangement of
or liquidation proceedings by or against BORROWER, and the same is not dismissed
within ninety (90) days;
(F) The entry by a court of competent jurisdiction of a final order providing for the
modification or alteration of the rights of BORROWER's creditors;
(G) Inability by BORROWER to conform to changes in local, state and federal rules,
regulations and laws as required under this AGREEMENT and all Legal Requirements,
which inability has or is reasonably expected to have a material adverse effect on the
Project; and
(H) Violation by BORROWER of any rule, regulation or law to which BORROWER is
bound or shall be bound under the terms of this AGREEMENT, which violation has or is
reasonably expected to have a material adverse effect on the Project and is not cured
within any applicable care period.
26.3 BORROWER may terminate this AGREEMENT for any of the following reasons:
(A) Cessation of outside funding upon which BORROWER depends for performance
hereunder; BORROWER may opt, however, within the limitations of this AGREEMENT
and with the written approval of CCCIC, to seek an alternative funding source, provided
that the termination of funding by the initial outside source was not occasioned by a
breach by BORROWER of this Agreement or as defined in a contract between
BORROWER and the funding source in question; or
(B) Upon the dissolution of the BORROWER organization, provided such dissolution
was not occasioned by a breach of this AGREEMENT.
26.4 Upon a decision to terminate by CCCIC or BORROWER, written notice of such, and the
effective date thereof, shall be immediately provided to the other party.
26.5 Upon receipt of notice to terminate in accordance with the terms of this Agreement,
BORROWER shall cancel, withdraw, or otherwise terminate any and all outstanding orders and
subcontracts, which relate to the performance of this AGREEMENT. To this effect, CCCIC shall
not be liable to BORROWER or BORROWER's creditors for any expense, encumbrances or
obligations whatsoever incurred after the date of termination or which was not canceled,
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 20 of 47
withdrawn or otherwise terminated by BORROWER in accordance with the provisions of this
paragraph.
26.6 Upon receipt of notice to terminate in accordance with the terms of this Agreement,
copies of all finished or unfinished documents, data, studies, surveys, charts, drawings, maps,
models, photographs, designs, plans, schedules, or other appended documentation to any
proposal or contract, prepared by or on behalf of BORROWER under this AGREEMENT shall, if
requested by CCCIC, and in accordance with Article XXVII hereof, be delivered by
BORROWER to CCCIC in a timely and expeditious manner.
26.7 Within thirty (30) calendar days after receipt of notice to terminate in accordance with the
terms of this Agreement, BORROWER shall submit a statement to CCCIC, indicating in detail
the services performed under this AGREEMENT prior to the effective date of termination.
26.8 Any termination of this AGREEMENT as herein provided shall not relieve BORROWER
from the payment of any sum(s) that shall then be due and payable or become due and payable
to CCCIC hereunder or as provided for at law or in equity, or any claim for damages then or
theretofore accruing against BORROWER hereunder or by law or in equity, and any such
termination shall not prevent CCCIC from enforcing the payment of any such sum(s) or claim for
damages from BORROWER. Instead, all rights, options, and remedies of CCCIC contained in
this AGREEMENT shall be construed and held to be cumulative and no one of them shall be
exclusive of the other, and CCCIC shall have the right to pursue any one or all of such remedies
or any such other remedy or relief which may be provided by law or in equity whether or not
stated in this AGREEMENT.
26.9 Should this AGREEMENT be terminated by either party hereto for any reason permitted
by the terms of this Agreement, if the work required hereunder of BORROWER is not fully
completed to the reasonable satisfaction of CCCIC in accordance with the terms of this
AGREEMENT, BORROWER shall refund any and all sums of money paid by CCCIC to
BORROWER within ten (10) business days of CCCIC's written request therefor.
26.10 Upon termination of this AGREEMENT by CCCIC under paragraph number 26.2(A)
hereof, BORROWER shall be barred from future contracts with CCCIC absent the express
written consent of the General Manager, or his designate, to contract with CCCIC.
XXVII. SPECIAL CONDITIONS
27.1 Federal Drug Free Workplace Act. Borrower shall comply with the Federal Drug Free
Workplace Act of 1988 and the regulations promulgated thereunder including, without limitation,
54 CFR Part 4956.
27.2 National Flood Protection Act. The Improvements will be constructed in compliance with
elevation requirements that meet or exceed the National Flood Protection Act, and any local
requirements.
27.3 Byrd Amendment: Prohibition for Influencing Federal Entities. To the best of Borrower's
knowledge, Borrower has complied with all restrictions, certifications and disclosure
requirements contained in the Byrd Amendment to the fiscal 1990 appropriations measures for
the United States Department of the Interior (P.L. 101-121) and any guidelines and rules issued
by any federal entity in connection therewith, if applicable.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 21 of 47
27.4 BORROWER shall ensure that all professional and contractual services in connection
with Project implementation shall be procured in accordance with 24 CFR 570, Part 85, The
Common Rule, Procurement, Competitive Standards and all other federal laws and regulations
to the extent applicable to the Project.
27.5 BORROWER understands and acknowledges that CCCIC shall not be liable for any
cost, or portion thereof, which is or was incurred in connection with an activity of BORROWER
where prior written authorization from CCCIC is required for the activity and such authorization
was not first procured, or CCCIC has requested that BORROWER furnish data concerning an
activity prior to proceeding further therewith and BORROWER nonetheless proceeds without
first submitting the data and receiving approval thereof.
27.6 BORROWER understands and agrees that Davis-Bacon Wage and Hour Requirements
shall apply to HOME funded projects when, in accordance with 24 CFR 92.354, twelve (12) or
more units are rehabilitated or newly constructed. CCCIC acknowledges that this Project has
less than twelve (12) HOME assisted units and these requirements are not applicable in this
instance.
27.7 BORROWER shall accurately complete a Project Completion Report (HUD form 40097)
upon completion of each Project activity, and forward the original completed form to CCCIC
within ninety (90) calendar days after BORROWER's receipt of the final remittance of
AGREEMENT funds by CCCIC for such Project activity. BORROWER understands and
acknowledges that new Project Set-up Reports will not be processed by CCCIC if there are any
outstanding Project Completion Reports due.
27.8 BORROWER shall ensure that all HOME assisted units constructed with assistance
made available to BORROWER by CCCIC under this AGREEMENT shall comply with the
provisions set forth herein this AGREEMENT as to all federal laws, rules and regulations
including, but not limited to the following:
(A) The HOME Investment Partnerships Act at Title II of the Cranston-Gonzalez National
Affordable Housing Act, as amended, 42 U.S.C. 12701, et seq., and implementing
regulations contained in 24 CFR Part 92;
(B) The HOME Program Guidelines and Application Package;
(C) The "Other Federal Requirements" as herein referred to and attached as Exhibit F;
(D) The "Certification Regarding Lobbying" as herein referred to, attached and executed
as Exhibit G.
27.9 BORROWER shall complete all Site Specific Environmental Review Records for each
property/parcel of this Project and submit such records to CCCIC. CCCIC must approve in
writing such records prior to any Project activity cost being incurred. CCCIC hereby
acknowledges that such approval has been given.
27.10 To the greatest extent feasible, agreements for work to be performed in connection with
this Project shall be awarded to business concerns including, but not limited to, individuals or
firms doing business in the field of planning, consulting, design, architecture, building
construction, maintenance, or repair, that are located in or owned in substantial part by persons
residing in the same metropolitan area or non-metropolitan county as this Project.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 22 of 47
27.11 BORROWER understands and agrees that all HOME assisted units in the Project
herein, shall only be leased to and occupied by households that are eligible as low-income
families, in accordance with HUD Section 8 Income Guidelines.
27.12 BORROWER understands and agrees that seven (7) HOME assisted units in the Project
shall be floating units. Twenty percent (20%) of HOME assisted units will be low HOME rent and
the remaining high HOME rent as is provided in Exhibit H.
27.13 BORROWER shall adopt written tenant selection policies and criteria, such as a written
waiting list, as required by 24 CFR 92. 253(d).
27.14 BORROWER understands that the rents for HOME-assisted rental housing units are
restricted by the Rent Standard established in 24 CFR 92.252 (a)(1). The standard establishes
one set of maximum HOME Program Rents for HOME-assisted units occupied by low-income
households and another set for units occupied by very low-income households.
27.15 BORROWER understands that the lease between BORROWER and the tenant in a
HOME-assisted unit must:
(A) Be written;
(B) Be for a term of at least one year, unless there is mutual agreement between the
tenant and BORROWER for a different term, 24 CFR 92.253(a);
(C) Include termination provisions, 24 CFR 92.253(c);
(D) Specify allowable HOME rents, 24 CFR 92.252(0(3);
(E) Identify Federally prohibited lease clauses outlined at 24 CFR 92.253(b);
(F) Require compliance with applicable state and local tenant-landlord laws;
(G) Specify applicable property standards; and
(H) Comply with the conditions established in Section 27.17 below with respect to the
tenant participation plan.
27.16 BORROWER shall contract a management company so as to operate and manage the
Property upon completion of construction phase. The management contract shall be for no less
than 12 (twelve) months. Management Company must have at least one-year experience in
managing a Section 8 property. BORROWER shall provide a copy of said management
contract upon execution. Said contract shall outline all HUD occupancy requirements (§
92.203(a)(1)(i) and § 92.203(a)(1)(ii) & § 92.252(h)) and rent limits (24 CFR 92.252).
27.17 BORROWER shall create and follow a tenant participation plan as required in 24 CFR
92.303.
27.18 BORROWER shall not discriminate against any certificate or voucher holder in
accordance to 24 CFR Part 982, Section 8, Tenant Based Assistance: Unified Rule for Tenant-
Based Assistance under the Section 8 Rental Certificate Program and the Section 8 Rental
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 23 of 47
Voucher Program or to the holder of a comparable document evidencing participation in a
HOME tenant-based rental assistance program.
27.19 BORROWER understands and agrees that HOME assisted units shall meet the
affordability requirements for not less than twenty (20) years, commencing upon Project
completion date as determined by CCCIC.
27.20 CCCIC shall provide BORROWER with information on updated HUD HOME rent limits
so that rents may be adjusted (not to exceed the maximum HOME rent limits provided by HUD
to CCCIC upon HUD's determination of fair market rents and median incomes) in accordance
with this AGREEMENT. BORROWER shall annually provide CCCIC with documentation on
rents and occupancy of HOME assisted units to demonstrate compliance.
27.21 BORROWER understands and agrees that any increase in rents for HOME assisted
units is subject to the provisions of outstanding leases, and in any event, BORROWER shall
provide tenants of those units not less than thirty (30) days prior written notice before
implementing any increase in rents.
27.22 BORROWER understands and agrees that the income of each tenant of a HOME
assisted unit shall be determined initially in accordance with 24 CFR 92.203(a)(1)(i).
BORROWER shall annually re-examine each such tenant's annual income during the period of
affordability in accordance with one of the options in 24 CFR 92.203.
27.23 BORROWER shall ensure that HOME assisted units continue to qualify as affordable
housing despite a temporary noncompliance caused by increases in the incomes of existing
tenants if actions satisfactory to CCCIC are being taken to ensure that all vacancies are filled in
accordance with 24 CFR 92.252 until the noncompliance is corrected.
27.24 BORROWER shall ensure that tenants of HOME assisted units who no longer qualify as
low-income families must pay, as rent, the lesser of the amount payable by the tenant under
State or local law or thirty percent (30%) of the family's adjusted income, except that tenants of
HOME assisted units that have been allocated low-income housing tax credits by a housing
credit agency pursuant to section 42 of the Internal Revenue Code of 1986 (26 U.S.C. 42) must
pay rent governed by section 42. If BORROWER has designated the HOME floating units,
BORROWER shall ensure that tenants who no longer qualify as low-income to pay, as rent, an
amount that exceeds the market rent for comparable, unassisted units in the neighborhood.
27.25 BORROWER acknowledges, understands and agrees to comply with the following
federal regulations as promulgated in Section 3 Clause of the Housing and Urban Development
Act of 1968, as amended, if applicable:
(A) The work to be performed under this AGREEMENT is subject to the requirements of
Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C.
1701u (Section 3). The purpose of Section 3 is to ensure that employment and other
economic opportunities generated by HUD assistance or HUD-assisted projects covered
by Section 3, shall, to the greatest extent feasible, be directed to low- and very low
income persons, particularly persons who are recipients of HUD assistance for housing.
(B) The parties to this AGREEMENT agree to comply with HUD's regulations in 24 CFR
Part 135, which implement Section 3. As evidenced by their execution of this
AGREEMENT, the parties to this AGREEMENT certify that they are under no
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 24 of 47
contractual or other impediment that would prevent them from complying with the Part
135 regulations.
(C) The BORROWER agrees to send to each labor organization or representative of
workers with which the contractor has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers' representative
of the contractor's commitments under the Section 3 clause, and will post copies of the
notice in conspicuous places at the work site where both employees and applicants for
training and employment positions can see the notice. The notice shall describe the
Section 3 preference, shall set forth minimum number and job titles subject to hire,
availability of apprenticeship and training positions, the qualifications for each; and the
name and location of the person(s) taking applications for each of the positions; and the
anticipated date the work shall begin.
(D) BORROWER agrees to include the Section 3 clause in every subcontract subject to
compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action,
as provided in an applicable provision of the subcontract or in the Section 3 clause upon
a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135.
BORROWER will not subcontract with any subcontractor where BORROWER has notice
or knowledge that the subcontractor has been found in violation of the regulations in 24
CFR Part 135.
(E) BORROWER will certify that any vacant employment positions, including training
positions, that are filled (1) after contractor is selected but before the contract is
executed, and (2) with persons other than those to whom the regulations of 24 CFR Part
135 require employment opportunities to be directed, were not filled to circumvent
BORROWER's obligations under 24 CFR Part 135.
(F) Noncompliance with HUD's regulations in 24 CFR Part 135 may result in sanctions,
termination of this AGREEMENT for default, and debarment or suspension from further
HUD-assisted contracts.
(G) With respect to work performed in connection with Section 3-covered Indian housing
assistance, Section 7(b) of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450e) also applies to the work to be performed under this AGREEMENT.
Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities
for training and employment shall be given to Indians, and (ii) preference in the award of
contracts and subcontracts shall be given to Indian organizations and Indian-owned
Economic Enterprises. Parties to this contract that are subject to the provision of
Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent
feasible, but not in derogation of compliance with Section 7(b).
XXVIII. CHANGES AND AMENDMENTS
28.1 Except when the terms of this AGREEMENT expressly provide otherwise, any
alterations, additions, or deletions to the terms hereof shall be by amendment in writing
executed by authorized representatives of both CCCIC and BORROWER.
28.2 Whenever and as often as reasonably deemed necessary by CCCIC, CCCIC may
request and require changes to BORROWER's Construction Schedule required under this
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 25 of 47
AGREEMENT (to be submitted in accordance with Article XVIII), subject to any consent
required by the First Lien Lender or BORROWER's limited partner; such changes as requested
or required by CCCIC, however, must be by written amendment.
28.3 Except pursuant to (a) prior submission by BORROWER of detailed information
regarding budget and Project revisions, and (b) prior written approval thereof by, CCCIC,
BORROWER shall not make any material change orders in excess of $50,000 for any single
change order or $100,000 in the aggregate. Instead, BORROWER shall request budget
revisions in writing and in a form prescribed by CCCIC; such request for revisions, however,
shall not increase the total monetary obligation of CCCIC as provided for pursuant to this
AGREEMENT, nor shall said revisions significantly change the nature, intent, or scope of the
Project funded hereunder.
28.4 In the event that the level of funding for BORROWER or for the Project described herein
is materially altered, BORROWER shall submit, promptly upon request by CCCIC, revised
budget and Project information so as to enable re-evaluation by CCCIC of the original funding
levels set forth in the Construction Schedule.
28.5 It is understood and agreed by the parties hereto that changes in local, state and federal
rules, regulations or laws applicable hereto may occur during the term of this AGREEMENT and
that any such changes shall be automatically incorporated into this AGREEMENT without
written amendment hereto, and shall become a part hereof as of the effective date of the rule,
regulation or law.
28.6 BORROWER further agrees to notify CCCIC of any changes in its general partner, such
notice to be provided within five (5) business days of the change.
XXIX. ASSIGNMENTS
29.1 Except as provided for in the BORROWER's formation documents, BORROWER shall
not transfer, pledge or otherwise assign this AGREEMENT, any interest in and to same, or any
claim arising thereunder, without first procuring the written approval of CCCIC's General
Manager. Any attempt at transfer, pledge or other assignment shall be void ab initio and shall
confer no rights upon any third person.
XXX. NO WAIVER OF PROVISIONS OR COMPLIANCE
30.1 Any failure by CCCIC to insist, or any election by CCCIC not to insist, upon the strict
performance by BORROWER of any of the terms, provisions or conditions of the Loan
Documents shall not be deemed to be a waiver of same or of any other term, provision or
condition thereof, and CCCIC shall have the right at any time thereafter to insist upon strict
performance by BORROWER of any and all of same. Additionally, no advance by CCCIC of
any Loan proceeds shall in any way preclude CCCIC from thereafter declaring a failure by
BORROWER to comply with any of the terms, provisions or conditions of the Loan Documents
an event of default (provided all notice and cure periods have expired) or, as applicable, a
reason for termination in accordance with AGREEMENT.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 26 of 47
XXXI. NON-WAIVER OF PERFORMANCE
31.1 No waiver by CCCIC of a breach of any of the terms, conditions, covenants or
guarantees of this AGREEMENT shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other term, condition, covenant or guarantee herein
contained. Further, any failure of CCCIC to insist in any one or more cases upon the strict
performance of any of the covenants of this AGREEMENT, or to exercise any option herein
contained, shall in no event be construed as a waiver or relinquishment for the future of such
covenant or option. In fact, no waiver, change, modification or discharge by either party hereto
of any provision of this AGREEMENT shall be deemed to have been made or shall be effective
unless expressed in writing and signed by the party to be charged.
31.2 No act or omission of CCCIC shall in any manner impair or prejudice any right, power,
privilege, or remedy available to CCCIC hereunder or by law or in equity, such rights, powers,
privileges, or remedies to be always specifically preserved hereby.
31.3 No representative or agent of CCCIC may waive the effect of the provisions of this
Article.
XXXII. RENEWAL NOT AUTOMATIC
32.1 Intentionally omitted.
XXXII!. TEXAS LAW TO APPLY
33.1 THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW PRINCIPALS OR RULES, AND ALL OBLIGATIONS OF THE
PARTIES CREATED HEREUNDER ARE PERFORMABLE IN NUECES COUNTY, TEXAS.
XXXIV. SEVERABILITY OF PROVISIONS
34.1 If any clause or provision of this AGREEMENT is held invalid, illegal or unenforceable
under present or future federal, state or local laws, including but not limited to the CITY's City
Charter, CITY's City Code, or ordinances of the City of Corpus Christi, Texas, then and in that
event it is the intention of the parties hereto that such invalidity, illegality or unenforceability shall
not affect any other clause or provision hereof and that the remainder of this AGREEMENT shall
be construed as if such invalid, illegal or unenforceable clause or provision was never contained
herein; it is also the intention of the parties hereto that in lieu of each clause or provision of this
AGREEMENT that is invalid, illegal, or unenforceable, there be added as a part of the
AGREEMENT a clause or provision as similar in terms to such invalid, illegal or unenforceable
clause or provision as may be possible, legal, valid and enforceable.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 27 of 47
XXXV. RELATIONSHIP OF PARTIES
35.1 Nothing contained herein shall be deemed or construed by the parties hereto, or by any
third party, as creating the relationship of principal and agent, partners, joint venturers or any
other similar such relationship between the parties hereto.
35.2 It is expressly understood and agreed that BORROWER is and shall be deemed to be
an independent contractor and operator responsible to all parties for its respective acts or
omissions and that CCCIC shall in no way be responsible therefor.
XXXVI. PARTIES BOUND
36.1 This AGREEMENT shall be binding on and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, legal representatives, successors and assigns,
except as otherwise expressly provided herein.
XXXVII. ENTIRE -AGREEMENT
37.1 This AGREEMENT, along with the other Loan Documents, constitutes the final and
entire agreement between the parties hereto and contains all of the terms and conditions
agreed upon. No other agreements, oral or otherwise, regarding the subject matter of this
AGREEMENT shall be deemed to exist or to bind the parties hereto unless same is in writing,
dated subsequent to the date hereof, and duly executed by the parties.
XXXVIII. INTERPRETATION
38.1 In the event any disagreement or dispute should arise between the parties hereto
pertaining to the interpretation or meaning of any part of this AGREEMENT or its governing
rules, regulations, laws, codes or ordinances, CCCIC, as the party ultimately responsible to
HUD for matters of compliance, shall have the final authority to secure an interpretation from
HUD.
38.2 Notices. All notices demands, requests or other communications required or permitted
to be given pursuant to the provisions of this Agreement shall be in writing and shall be
considered properly given if mailed by first class United States mail, postage prepaid, registered
or certified with return receipt requested, or by depositing same with Federal Express or another
reputable private courier service for next business day delivery or by delivering same in person
to the intended addressee All notices, demands and requests shall be effective upon such
personal delivery, or one (1) business day after being deposited with the private courier service,
or three (3) business days after deposit in the custody of the U.S. Postal Service. Rejection or
other refusal to accept or the inability to deliver because of changed address of which no notice
was given as herein required shall be deemed to be receipt of the notice, demand or request
sent. For purposes of notice, the addressee of the parties shall be as follows:
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 28 of 47
To Lender: Corpus Christi Community Improvement Corporation
do: City of Corpus Christi
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Attention: HCD Administrator
Fax: 361-826-1740
To Borrower: TG 100 Lexington, LP
8610 N. New Braunfels, Suite 500
San Antonio, Texas 78217
Attention: Gilbert M. Piette
Fax: 210.821.4313
With a copy to: Wells Fargo, National Association
Community Lending and Investment
5400 LBJ Freeway, Suite 1000
(AU 59448)
Dallas, Texas 75240
MAC T9236-100
Attention: Loan Administration
(Reference Loan No. 1012563)
With a copy to: Wells Fargo Affordable Housing,
Community Development Corporation
MAC D1053-170
301 South College Street, 17th Floor
Charlotte, NC 28202-6000
Attn: Director of Asset Management
Any party shall have the right to change its address for notice hereunder to any other location
within the continental United States by the giving of twenty (20) days' notice to the other party in
the manner set forth herein.
38.3 Headings. The article, paragraph and subparagraph entitlements hereof are inserted for
convenience of reference only and in no way shall alter, modify or define, or be used in
construing, the text of such Articles, Paragraphs or Subparagraphs.
38.4 Reserved.
38.5 Force Majeure. Notwithstanding anything to the contrary herein set forth, an equitable
adjustment shall be made for delay or failure in performing hereunder if such delay or failure is
caused, prevented, or restricted by conditions beyond the reasonable control of the party that
was to perform (a "Force Majeure Event"). A Force Majeure Event shall include, but not be
limited to: acts of God; fire, explosion; vandalism; storm or similar occurrences; orders or acts of
military authority; litigation; changes in law, rules or regulations outside the control of the
affected party; national emergencies or insurrections; riots; acts of terrorism; supplier failures; or
shortages.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 29 of 47
38.6 Subordination. The terms and provisions of this Agreement and the other Loan
Documents are subject in all respects to the terms of the Subordination Agreement and subject
and subordinate in all respects to the terms and provisions of the First Lien Loan Documents.
[Executed on the following pages]
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 30 of 47
Executed in duplicate originals to be effective as of the date first set forth above.
ATTEST: Corpus Christi Community Improvement
Corporation ("CCCIC"):
Rebecca Huerta Rfald L. Olson
Secretary '—General Manager
ACKNOWLEDGMENT
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES § �
�L �(,UGtih IAtr)4Z
This instrument was acknowledged before me on this DC day of January 2015 by Rbnaid-E.
Olson, General Manager of the CORPUS CHRISTI COMMUNITY IMPROVEMENT
CORPORATION, a Texas nonprofit corporation, on behalf of the corporation.
(Seal)
eyi2
/Led
JOSIE CASTILLO
pr �
Notary PubfiC,store of Texas Nota' Pu lic, State of Texas
.; My Commission Expires
;;"• : October 17, 2017
APPROVED AS TO FORM:
I 1 AU'Hunt....
THIS 50'714— DAY OF JANUARY 2015
...-12-4411"
`HJT -lAth SECIITARY
Deborah Walther Brown
Assistant City Attorney
For Miles Risley, City Attorney
HOME Loan Agreement between CCCIC and TG 110 Lexington, LP Page 31 of 47
BORROWER:
TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington GP, LLC,
a Texas limited liability company,
its general partner
By: TG 110, Inc.,
a Texas non-profit corporation,
its sole member
ZZ
By:
Gilbert M. Piette,
Executive Director
STATE OF TEXAS §
COUNTY OF BEXAR§
This instrument was acknowledged before me on this o9 day of January, 2015, by
Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation, sole
member of TG 110 Lexington GP, LLC, a Texas limited liability company, general partner of TG
110 Lexington, LP, a Texas limited partnership, on behalf of said limited partnership.
.
V➢lOilii0iiM11iM CR
AudreyNotary D PRoublic gers y
_ Notar Public, tate of Tex
t,
State of Texas
''.of-0- My Comm.Exp. 11/19/18
HOME Loan Agreement between CCCIC and TG 110 Lexington, LP Page 32 of 47
Exhibit A Preliminary Budget and Construction Schedule
Exhibit B Covenant of Affordability
Exhibit C Loan Amortization Schedule
Exhibit D §221(D)(3) of National Housing Act
Exhibit E Insurance
Exhibit F Other Federal Requirements
Exhibit G Certificate Regarding Lobbying
Exhibit H HOME Rent and Income Limits
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 33 of 47
EXHIBIT A
Preliminary Bud2et & Construction Schedule
CHDO/Sponsor: TG 110,Inc. (CHDO)
Project Name: Lexington Manor Apts. Project Location: 5201 Kostoroyz
Property Owner: TG 110 Lexington,LP
Total Project Cost: $25,178,929.00 HOME FY 14 Award: $918,000
Preliminary Bud2et
Project Financial Resources: (list may be adjusted to meet your project)
(Funds available to complete project) Amount
• Deferred Developer Fee $ 764,889.00
• FY 2013 HOME Fund $ 918,000.00
• Other: LIHTC $19,796,040.00
• Permanent Loan $ 3,000,000.00
• Private Loan (TG 110, Inc.-Seller Carryback) $ 700,000.00
Total Funds Available for Project $25,178,929.00
Estimated Expenses: (list may be adjusted to meet your project)
(List estimated expenses to complete your project) such as: Amount
• Land Acquisition $ 1,250,000.00
• Site Work Costs $ 3,235,757.00
• Direct New Construction Costs (includes HOME funds$918,000) $10,949,693.00
• Other Construction Costs(Fees, OH, Profit) ..$ 1,985,963.00
• Contingency $ 808,571.00
• Indirect/Soft Costs .$ 2,508,037.00
• Developer Fees $ 2,780,000.00
• Financing Related Costs $ 1,054,572.00
• Project Reserves $ 606,336.00
Total Project Cost $25,178,929.00
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 34 of 47
Preliminary Construction Schedule
(Project Dates for completion of key project phases)
Projected Dates
• Design/Bid Documents(specification packet)completed 10.31.14
• Platting/Soil Testing(lead based paint, environmental,etc.) 10.31.14
• Construction Contract Award 12.01.14
• Land Acquisition 01.30.15
• Start Construction 02.15.15
• Construction 100%completion 08.14.16
NOTE: HUD/HOME Program does not require PJ to manage procurement process , due to this project being
supported by Low Income Housing Tax Credits, Developer is required to obtain a Prime Contractor early on before
Tax Credit funds are committed. Although HUD/HOME Program does not require PJ to manage procurement
process, HOME does require PJ to secure copies of contract with Prime Contractor and therefore said contract must
be provided to PJ.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 35 of 47
EXHIBIT B
DEED COVENANT
TO BIND PROPERTY
FOR PERIOD OF AFFORDABILITY
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES §
Pursuant to that HOME Loan Agreement dated December , 2015, entered
into between the Corpus Christi Community Improvement Corporation, a non-profit
corporation organized under the laws of the State of Texas ("CCCIC"), and TG 110
Lexington, LP, a Texas limited partnership ("Lexington"), which is the legal title holder
to property described below (the "HOME Agreement"), is incorporated in this
instrument by reference, Lexington accepted federal funds in conjunction with the
United States Department of Housing and Urban Development's Home Investment
Partnership Program administered by CCCIC, for the development of multifamily
housing to be known as Lexington Manor and located on the following property:
Lot Four (4), BOULEVARD ACRES ANNEX LOT 4, an
Addition in the City of Corpus Christi, Texas, according to
map or plat thereof recorded in Volume 68, Page 173, Map
Records of Nueces County, Texas.
Pursuant to the terms, conditions, and covenants contained within the HOME
Agreement, Lexington, in consideration of receiving the funding, agrees to bind the
Property with the affordability requirements specified in the HOME Agreement and Title
24, Part 92.252, of the United States Code of Federal Regulations, for a period of not
less than twenty (20) years from the date of completion of the demolition and
reconstruction of the project on the Property, which shall be evidenced by the issuance
of certificates of occupancy (or the jurisdictional equivalent) for the buildings located on
the Property.
(EXECUTION PAGE FOLLOWS)
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 36 of 47
This instrument constitutes a covenant running with the land required by
federal law and binds TG 110 LEXINGTON, LP, and its successors, heirs, assigns,
and transferees, such Property being subject to this instrument.
TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington GP, LLC,
a Texas limited liability company,
its general partner
By: TG 110, Inc.,
a Texas non-profit corporation,
its sole member
By:
Gilbert M. Piette,
Executive Director
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on this 9 / day of January, 2015,
by Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation,
sole member of TG 110 Lexington GP, LLC, a Texas limited liability company, general
partner of TG 110 Lexington, LP, a Texas limited partnership, on behalf of said limited
partnership.
os Y we, Audrey D Rogers �)
-
' L ] Notary Public L "'
State of Texas
NrIttoF pS My Comm.Exp. 11/19/18 Notary Publi , State of T as
AFTER RECORDING RETURN TO:
ATTN: Community Development Administrator
Neighborhood Services Department
Corpus Christi Community Improvement Corporation
P. O. Box 9277
Corpus Christi, TX 78469-9277
HOME Loan Agreement between CCCIC and TG 110 Lexington, LP Page 37 of 47
EXHIBIT C
AMORTIZATION SCHEDULE
(attached)
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 38 of 47
CORPUS CHRISTI COMMUNITY IMPROV CORP. January 29,2015
Amortization Schedule 08:12:58
Exhibit C
Name On Loan: Lexington Manor
Principal Balance: $918,000.00
Interest Rate: 3.00000 %
Payment Frequency. Annually
Term In Months: 480
Beginning P&I Amount: $39,714.86
1st Payment Due Date: 05/01/2017
Payment Payment Interest Principal Payment Principal
Number Due Date Amount Amount Amount Balance
1 05/01/2017 $27,540.00 $12,174.86 $39,714.86 $905,825.14
Yearly Sub-Totals: $27,540.00 $12,174.86
2 05/01/2018 $27,174.75 $12,540.11 $39,714.86 $893,285.03
Yearly Sub-Totals: $27,174.75 $12,540.11
3 05/01/2019 $26,798.55 $12,916.31 $39,714.86 $880,368.72
Yearly Sub-Totals: $26,798.55 $12,916.31
4 05/01/2020 526,411.06 $13,303.80 $39,714.86 5867,064.92
Yearly Sub-Totals: $26,411.06 $13,303.80
5 05/01/2021 $26,011.95 $13,702.91 $39,714.86 $853,362.01
Yearly Sub-Totals: $26,01195 $13,702.91
6 05/01/2022 $25,600.86 $14,114.00 $39,714.86 $839,248.01
Yearly Sub-Totals: $25,600.86 $14,114.00
7 05/01/2023 $25,177.44 $14,537.42 $39,714.86 $824,710.59
Yearly Sub-Totals: $25,177.44 $14,537.42
8 05/01/2024 $24,741.32 $14,973.54 $39.714.86 $809,737.05
Yearly Sub-Totals: $24,741.32 $14,973.54
9 05/01/2025 524,292.11 $15,422.75 $39,714.86 5794,314.30
Yearly Sub-Totals: $24,292.11 $15,422.75
10 05/01/2026 $23,829.43 $15,885.43 $39,714.86 $778,428.87
Yearly Sub-Totals: $23,829.43 $15,885.43
11 05/01/2027 523,352.87 $16,36199 539,714.86 5762,066.88
Yearly Sub-Totals: $23,352.87 $16,36L99
12 05/01/2028 522,862.01 $16,852.85 $39,714 86 $745,214,03
Yearly Sub-Totals: $22,862.01 $16,852.85
13 05/01/2029 522,356.42 $17,358.44 $39,714.86 $727,855.59
Yearly Sub-Totals: $22,356.42 $17,358.44
14 05/01/2030 $21,835.67 $17,879.19 $39,714.86 $709.976.40
Yearly Sub-Totals: $21,835.67 $17,879.19
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 39 of 47
Payment Payment Interest Principal Payment Principal
Number Due Date Amount Amount Amount Balance
16 05/01/2032 520,746.82 518.968.04 $39,714.86 $672,592.79
Yearly Sub-Totals: $20,746.82 $18,968.04
17 05/01/2033 $20,177 78 $19,537.08 $39,714.86 5653,055.71
Yearly Sub-Totals: $20,177.78 $19,537.08
18 05/01/2034 $19,591.67 520,123.19 $39,714.86 5632,932.52
Yearly Sub-Totals: $19,591.67 $20,123.19
19 05/01/2035 518,987.98 $20,726.88 $39,714.86 1612,205.64
Yearly Sub-Totals: $18,987.98 $20,726.88
20 05/01/2036 118,366.17 521,348.69 539,714.86 $590,856.95
Yearly Sub-Totals: $18,366.17 $21,348.69
21 05/01/2037 $17,725.71 $21,989.15 539,714.86 5568,867.80
Yearly Sub-Totals: $17,725.71 $21,989.15
22 05/01/2038 $17,066.03 $22,648.83 $39,71486 5546,218.97
Yearly Sub-Totals: $17,066.03 $22,648.83
23 05/01/2039 $16,386.57 523,328.29 $39,714.86 $522,890.68
Yearly Sub-Totals: $16,386.57 $23,328.29
24 05/01/2040 $15,686.72 $24,028.14 $39,714.86 $498,862,54
Yearly Sub-Totals $15,686.72 $24,028.14
25 05/01/2041 $14,965.88 $24,748.98 539,714.86 $474,113.56
Yearly Sub-Totals: $14,965.88 $24,748.98
26 05/01/2042 $14,223.41 $25,491.45 539,714,86 5448,622.11
Yearly Sub-Totals: $14,223.41 425,491.45
27 05/01/2043 513,458.66 $26,256.20 539,714.86 $422,365.91
Yearly Sub-Totals: $13,458.66 $26,256.20
28 05/01/2044 $12,670.98 $27,043.88 $39,714.86 $395,322 03
Yearly Sub-Totals: $12,670.98 $27,043.88
29 05/01/2045 $11,859.66 527,85520 $39,714.86 1367,466.83
Yearly Sub-Totals: $11,859.66 $27,855.20
30 05/01/2046 511,024.00 $28,690.86 539,714.86 $338,775.97
Yearly Sub-Totals: $11,024.00 $28,690.86
31 05/01/2047 510,163.28 $29,551.58 539,714.86 5309,224.39
Yearly Sub-Totals $10,163.28 $29,551.58
32 05/01/2048 59,276.73 $30,438.13 $39,714.86 $278,786.26
Yearly Sub-Totals $9,276.73 $30,438.13
33 05/01/2049 $8,363.59 $31,351.27 539,714.86 $247,434.99
Yearly Sub-Totals: $8,363.59 $31,351.27
34 05/01/2050 $7,423.05 $32,291.81 $39,714.86 $215,143.18
Yearly Sub-Totals $7,423.05 $32,291.81
'Denotes an Interest Only Payment Page 2
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 40 of 47
CORPUS CHRISTI COMMUNITY IMPROV CORP. January 29,2015
Amortization Schedule 08:12:58
Payment Payment Interest Principal Payment Principal
Number Due Date Amount Amount Amount Balance
35 05/01/2051 56,454.30 533,260.56 439,714.86 5181,882.62
Yearly Sub-Totals: $6,454.30 $33,260.56
36 05/01/2052 $5,456.48 $34,258.38 539,71486 5147,624.24
Yearly Sub-Totals: $5,456.48 $34,258.38
37 05/01/2053 54,428.73 535,286.13 $39,714.86 $112,338.11
Yearly Sub-Totals: $4,428.73 $35,286.13
38 05/01/2054 $3,370.14 S36,344.72 539,714.86 575,993.39
Yearly Sub-Totals: $3.370.14 536,344.72
39 05/01/2055 $2,279.80 $37,435.06 $39,714.86 $38,558.33
Yearly Sub-Totals: $2,279.80 $37,435.06
40 05/01/2056 $1,156.75 $38,558.33 $39,715.08 $0.00
Yearly Sub-Totals: $1,156.75 $38,558.33
Totals: 5670,594.62 $918,000.00
Last Payment Amount: 39,715.08
•Denotes an Interest Only Payment Page 3
EXHIBIT D
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 41 of 47
Section 221(D)(3) of National Housing Act
(attached)
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 42 of 47
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HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 43 of 47
EXHIBIT E
INSURANCE REQUIREMENTS
CONTRACTOR'S LIABILITY INSURANCE
A. Contractor shall not commence work under this agreement until all insurance required herein has
been obtained and approved by the City's Risk Manager or designee. Contractor must not allow
any subcontractor/Provider to commence work until all similar insurance required of the
subcontractor/Provider has been so obtained.
B. Contractor shall furnish to the Risk Manager or designee two (2) copies of Certificates of
Insurance, with applicable policy endorsements showing the following minimum coverage by an
insurance company(s) acceptable to the Risk Manager or designee. The City must be named as an
additional insured for the General Liability policy, and a waiver of subrogation is required on all
applicable policies.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-Day Notice of Cancellation required on Bodily injury and Property Damage
certificates or by policy endorsement(s) Per Occurrence/aggregate
Commercial General Liability including:
1. Broad Form $1,000,000 Per Occurrence
2. Premises—Operations $2,000,000 Aggregate
3. Products/Completed Operations Hazard
4. Contractual Liability
5. Broad Form Property Damage
6. Independent Contractors
7. Underground Hazard (if applicable)
BUSINESS AUTOMOBILE LIABILITY $1,000,000 Combined Single Limit
1. Owned
2. Hired&Non-owned
WORKERS' COMPENSATION WHICH COMPLIES WITH THE TEXAS WORKERS'
All States endorsement is required if contractor is COMPENSATION ACT AND PARAGRAPH II OF
not Domiciled in Texas. THIS EXHIBIT.
EMPLOYER'S LIABILITY $500,000/ $500,000/ $500,000
C. In the event of accidents of any kind related to this project, Contractor shall furnish the Risk
Manager with copies of all reports of such accidents within ten(10) days of the accident.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 44 of 47
II. ADDITIONAL REQUIREMENTS
A. Contractor must obtain workers' compensation coverage through a licensed insurance
company in accordance with Texas law. The contract for coverage must be written on a
policy and endorsements approved by the Texas Department of Insurance. The coverage
provided must be in amounts sufficient to assure that all workers' compensation
obligations incurred will be promptly met. An"All States" endorsement shall be required
if Workers' Compensation policy is not written in accordance with Texas Department of
Insurance rules.
B. Contractor shall obtain and maintain in full force and effect for the duration of this
Contract, and any extension hereof, at Contractor's sole expense, insurance coverage
written on an occurrence basis, by companies authorized and admitted to do business in
the State of Texas and with an A.M. Best's rating of no less than A- VII.
C. Contractor shall be required to comply with any such requests and shall submit a copy of
the replacement certificate of insurance to City at the address provided below within 10
days of the requested change. Contractor shall pay any costs incurred resulting from said
changes. All notices under this Article shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Management
P.O. Box 9277
Corpus Christi, TX 78469-9277
(361) 826-4555- Fax #
D. Contractor agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
• Name the City and its officers, officials, employees, volunteers, and elected
representatives as additional insured by endorsement, as respects operations and activities
of, or on behalf of, the named insured performed under contract with the City, with the
exception of the workers' compensation policy
• Provide for an endorsement that the "other insurance" clause shall not apply to the City of
Corpus Christi where the City is an additional insured shown on the policy;
• Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of the City; and
• Provide thirty (30) calendar days advance written notice directly to City of any
suspension, cancellation, non-renewal or material change in coverage, and not less than
ten(10) calendar days advance written notice for nonpayment of premium.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 45 of 47
E. Within five (5) calendar days of a suspension, cancellation, or non-renewal of coverage,
Successful Bidder shall provide a replacement Certificate of Insurance and applicable
endorsements to City. City shall have the option to suspend Contractor's performance
should there be a lapse in coverage at any time during this contract. Failure to provide
and to maintain the required insurance shall constitute a material breach of this contract.
F. In addition to any other remedies the City may have upon Contractor's failure to provide
and maintain any insurance or policy endorsements to the extent and within the time
herein required, the City shall have the right to order Contractor to stop work hereunder,
and/or withhold any payment(s) which become due to Contractor hereunder until
Contractor demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which
Contractor may be held responsible for payments of damages to persons or property
resulting from Contractor's or its subcontractor's performance of the work covered under
this agreement.
H. It is agreed that Contractor's insurance shall be deemed primary and non-contributory
with respect to any insurance or self-insurance carried by the City of Corpus Christi for
liability arising out of operations under this agreement.
I. It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this agreement.
2014 ins req.
Housing and Community Development Dept.
—Lexington Manor Apartments
Demolition and Construction Project
2/5/2014 ds Risk Mgmt.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 46 of 47
EXHIBIT F
OTHER FEDERAL REQUIREMENTS
Pursuant to that HOME Loan Agreement ("HOME Agreement") dated January
, 2015, entered into between the Corpus Christi Community Improvement
Corporation ("CCCIC"), a Texas non-profit corporation, acting by and though its
General Manager, and TG 110 Lexington, LP, a Texas limited partnership, (for which
the sole member of its general partner is TG 110, Inc., a Texas nonprofit corporation,
and a Community Housing Development organization (CHDO) and acting in the
capacity of a Sponsor), agreed that it shall comply with all federal, state, and local laws,
rules, and regulations applicable to the activities, services and performances rendered,
as noted in said HOME Agreement, including, but not limited to, the laws, rules, and the
regulations specified in Sections I through V of this Exhibit.
I. CIVIL RIGHTS
• The Fair Housing Act (42 U.S.C. Sections 3601-20) and implementing
regulations at 24 CFR Part 100; Executive Order 11063, as amended by
Executive Order 12259 (3 CFR, 1958-1963 Comp., p. 652 and 3 CFR, 1980
Comp., p. 307) (Equal Opportunity in Housing) and implementing
regulations at 24 CFR Part 107; and Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000ed) (Nondiscrimination in Federally Assisted Programs) and
implementing regulations issued at 24 CFR Part 1, Nondiscrimination
Provisions of 92.350;
• Executive Order 11063, as amended by Executive Order 12259, and 24
CFR Part 107, "Nondiscrimination and Equal Opportunity in Housing under
Executive Order 10063." Failure or refusal to comply with the requirements
of Executive Order 11063 or 24 CFR Part 107 shall be a proper basis for the
imposition of sanctions specified in 24 CFR Part 107.60;
• The prohibitions against discrimination on the basis of age under the Age
Discrimination Act of 1975 (42 U.S.C. Sections 6101-07) and implementing
regulations at 24 CFR Part 146, and the prohibitions against discrimination
against handicapped individuals under Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. Sec. 794) and implementing regulations at 24 CFR Part
8;
• The requirements of Executive Order 11246 (3 CFR, 1964-65, Comp., p.
339) (Equal Opportunity) and the implementing regulations at 24 CFR Part
8;
• The requirements of Executive Orders 11625 and 12432 (concerning
Minority Business Enterprise), and 12138 (concerning Women's Business
Enterprise consistent with HUD's responsibilities under these Orders. Each
applicant must make efforts to encourage the use of minority and women's
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 47 of 47
business enterprises in connection with HOME funded activities. TG 110
Lexington, LP, et al, must prescribe procedures acceptable to the CCCIC to
establish activities to ensure the inclusion, to the maximum extent possible
of minorities and women and entities owned by minorities and women. TG
110 Lexington, LP, et al, will be required to identify contracts which have
been bid by minority owned, women owned, and/or small disadvantaged
businesses;
• The Age Discrimination Act of 1975 (42 U.S.C. Sections 6101 et seq.); and
• Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) and
"Nondiscrimination Based on Handicap in Federally-Assisted Programs and
Activities of the Department of Housing and Urban Development," 24 CFR
Part 8. By signing the agreement between CCCIC and TG 110 Lexington,
LP, TG 110 Lexington, LP, et al, understands and agrees that the activities
funded herein shall be operated in accordance with 24 CFR Part 8 and the
Architectural Barriers Act of 1968 (42 U.S.C. Sec. 4151 et. seq.), including
the use of a telecommunications device for deaf persons (TDDs) or equally
effective communication system.
• Nepotism - shall not employ in any paid capacity any person who is a
member of the immediate family of any person who is currently employed by
who is a member of a governing body. The term "member of immediate
family" shall include: wife, husband, son, daughter, mother, father, brother,
sister, in-law, aunt, uncle, cousin, nephew, niece, step-parent, step-child,
half-brother and half-sister.
• Sectarian Activity - none of the performance rendered hereunder shall
involve, and no portion of the funds received hereunder shall be used,
directly or indirectly, for the construction, operation, maintenance or
administration of any sectarian or religious facility or activity, nor shall said
performance rendered or funds received be utilized so as to benefit, directly
or indirectly, any such sectarian or religious facility or activity.
II. LEAD-BASED PAINT
• Title IV of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. Sec.
4831), including Mold and other health hazards.
III. ENVIRONMENTAL STANDARDS
• Environmental Review Procedures for Title I Community Development Block
Grant Programs, 24 CFR Part 58, as amended in 47 Fed. Reg. 15750 (April
12, 1982);
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 48 of 47
• National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et. seq.)
and 40 CFR Parts 1500-1508;
• The National Historic Preservation Act of 1966 (16 U.S.C. Sec. 470 et. seq.)
as amended; particularly Section 106 (16 U.S.C. Sec. 470f);
• Executive Order 11593, Protection and Enhancement of the Cultural
Environment, May 13 1971 (36 Fed. Reg. 8921), particularly Section 2(c);
• The Reservoir Salvage Act of 1960 (16 U.S.C. Sec. 469 et seq.), particularly
Section 3 (16 U.S.C. Sec. 469a-1), as amended by the Archeological and
Historic Preservation Act of 1974;
• Flood Disaster Protection Act of 1973, (42 U.S.C. Sec. 4001 et. seq.) as
amended, particularly Sections 102(a) and 202(a) [(42 U.S.C. Sec. 4012a
(a) and Sec. 4106(a)];
• Executive Order 19988, Floodplain Management, May 24, 1977 (42 Fed.
Reg. 26951), particularly Section 2(a);
• Executive Order 11990, Protection of Wetlands, May 24, 1977 (42 Fed.
Reg. 26961), particularly Sections 2 and 5;
• The Coastal Zone Management Act of 1972 (16 U.S.C. Sec. 1451 et seq.)
as amended, particularly Sections 307(c) and (d) [(16 U.S.C. Sections 1456
(c) and (d)];
• The Safe Drinking Water Act of 1974 (42 U.S.C. Sec. 201.300(f) et seq.),
and (21 U.S.C. Sec. 349) as amended, particularly Section 1424(e) [(42
U.S.C. Sections 300h-303(e)];
• The Endangered Species Act of 1973, (16 U.S.C. Sec. 1531 et seq.) as
amended, particularly Section 7 (16 U.S.C. Sec. 1536);
• The Wild and Scenic Rivers Act of 1968, (16 U.S.C. Sec. 1271 et seq.) as
amended, particularly Sections 7(b) and (c) [(16 U.S.C. Sections 1278(b)
and (c)];
• The Clean Air Act (41 U.S.C. Sec. 7401 et seq.) as amended, particularly
Sections 176(c) and (d)); and
• Farmlands Protection and Policy Act of 1981, (7 U.S.C. Sec. 4201 et seq.)
• 24 CFR Part 51, Environmental Criteria and Standards.
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 49 of 47
IV. RELOCATION AND ACQUISITION
• The Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 (42 U.S.C. Sec. 4601 et. seq.), 49 CFR Part 24, and 24 CFR
Section 570.496a [(55 Fed. Reg. 29309 (July 18, 1990)].
V. APPLICABLE HOME PROGRAM PROVISIONS
HOME Designated Units:
• Covenant Of Affordability - 24CFR 92.252(e)
• Subsidy Limits — 221(d)(3)
• Fixed and Floating Units — 24CFR 92.252(j)
• Property Standards — 24CFR 92.251
• Provide tenants copies of Lead and Mold Information Brochures
• Home Income Limits —24CFR 92.216
• Income Targeting and Initial Occupancy—24CFR 92.216(a)
• Income Targeting During Affordability Period — 24CFR 92.252(a), 24CFR
92.252(b)
• Verifying Tenant Income - 24CFR 92.203
Part 5 ("Section 8") — 24CFR 5.609, 24CFR 92.203(b), or IRS Form 1040;
24CFR 92.203(a) and 92.252(h).
• Re-examination of Tenant Income and Family Composition — 24CFR
884.218, 886.124, 886.324, 891.410, 891.610, 891.750, and 24 CFR 5.659
• Applicable Rent Limits — 24CFR 92.252
• HOME Rents - 24CFR 92.253(0(3)
• Utility Allowances and Fees —24CFR 92.252(C)
• Initial Rent Schedule —24CFR 92.252(c) and 92.504.(c)(3)
• Adjusting Rents — 24CFR 92.252(0(1),24CFR 92.252(0(2), 24CFR
92.252(g)(2).
• Maintaining Unit and Occupancy Mix - 24CFR 92.252(i)
• Tenant Selection Procedures - 24CFR 92.2253(d)
• Tenant Lease — 24CFR 92.252(0(2)
• Lease Provisions - 24CFR 92.253(a), 24CFR 92.253(c)
• Prohibited Clauses - 24CFR 92.253(b)
• Affirmative Marketing responsibilities as outlined in 24CFR 92.351
• Tenant Participation Plan, 24CFR 92.303
• Displacement, Relocation and Acquisition, CFR 92.353
• Faith Based Activities, 24CFR 92.257
• Must have a Property Manager with at least one year experience in
managing HOME rental property.
• All other applicable HUD, HOME, federal, state and local regulations.
Project Name: Lexington Manor Apts. HOME FY2014
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 50 of 47
EXHIBIT G
CERTIFICATION REGARDING LOBBYING
FOR AGREEMENTS, GRANTS, LOANS,
AND COOPERATIVE AGREEMENTS
The undersigned certifies to the best of its knowledge and belief, that:
1. No federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
an agency, a member of congress, an officer or employee of congress, or an employee of a
member of congress in connection with the awarding of any federal agreement, the making of
any federal grant, the making of any federal loan, the entering into of any cooperative agreement,
or modification of any federal agreement, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
member of congress, an officer or employee of congress, or an employee of a member of
congress in connection with this federal agreement, grant, loan, or cooperative agreement, the
undersigned shall complete and submit standard form — LLL, "Disclosure Form to Report
Lobbying", in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including sub-agreements, subgrant, and
agreements under grants, loans, and cooperative agreements) and that shall certify and disclose
accordingly.
This certification is material representation of fact which reliance was placed when this
transaction was made or entered into submission of this certification is a prerequisite for making
or entering into this transaction imposed by 31 U.S.C. Section 1352. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(EXECUTION PAGE FOLLOWS)
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 51 of 47
TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington GP, LLC,
a Texas limited liability company,
its general partner
By: TG 110, Inc.,
a Texas non-profit corporation,
its sole member
By: ✓��/�
Gilbert M. Piette,
Executive Director
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on this cd-? day of January, 2015, by
Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation, sole
member of TG 110 Lexington GP, LLC, a Texas limited liability company, general partner of
TG 110 Lexington, LP, a Texas limited partnership, on behalf of said limited partnership.
L ludrey D Rogers
Notary Public
_
r\ State of Texas
'Tito" 11�1g�1g Notary P ul4k'ic, State of xaT s
My Comm.ComExp
AFTER RECORDING RETURN TO:
ATTN: Community Development Administrator
Housing and Community Development Department
Corpus Christi Community Improvement Corporation
P. O. Box 9277
Corpus Christi, TX 78469-9277
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 52 of 47
EXHIBIT H
HOME Rent and Income Limits
HOME Loan Agreement between CCCIC and TG 110 Lexington,LP Page 53 of 47
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SECOND LIEN HOME PROMISSORY NOTE
Date: To be effective as of January 30, 2015
Borrower: TG 110 Lexington, LP, a Texas limited partnership
Borrower's Mailing Address: 8610 New Braunfels, Suite 500
San Antonio, Texas 78217-6397
Lender: Corpus Christi Community Improvement Corporation, a Texas nonprofit
corporation
Place for Payment: 1201 Leopard Street
Corpus Christi, Nueces County, Texas 78469-9277
Attn: General Manager
Or any other place that Lender may designate in writing
Principal Amount: Nine Hundred Eighteen Thousand and 00/100 Dollars ($918,000.00) U.S.
Currency
Loan Documents:
(1) This Second Lien HOME Promissory Note (this "Note"), (2) that certain Second Lien
HOME Deed of Trust of even date herewith executed by Borrower for the benefit of
Lender (the "Deed of Trust"), (3) that certain HOME Assignment of Leases and Rentals
of even date herewith executed by Borrower for the benefit of Lender (the "Assignment
of Leases"), (4) that certain HOME Loan Agreement of even date herewith executed by
Lender and Borrower (the "HOME Agreement"), and (5) that certain Deed Covenant to
Bind Property for Period of Affordability (the "Restrictions") (this Note, the Deed of
Trust, the Assignment of Leases, the HOME Agreement and the Restrictions are
collectively referred to herein as the "Loan Documents.")
Annual Interest Rate on Unpaid Principal:
Beginning on the date first set forth above, simple interest shall accrue on the
outstanding principal balance of the loan evidenced by the Loan Documents (the
"Loan") at a rate of three percent (3.0%) per annum (the "Interest Rate"), unless an
Event of Default (as defined in the Deed of Trust) has occurred and is continuing, in
which case interest on the unpaid principal balance of the Loan shall (a) accrue at the
rate of the lesser of (i) eight percent (8%) per annum, or (ii) the highest interest rate per
annum allowed by applicable law (the "Default Interest Rate") until such Event of
Default is cured, and (b) be capitalized and added to the outstanding principal balance of
the Loan.
Annual Interest Rate on Matured, Unpaid Amounts: The Default Interest Rate.
Second Lien HOME Promissory Note-- Page 1
Terms of Payment (Principal and Interest):
Principal and interest payable under this Note shall be due and payable from, and only
to the extent of, Net Cash Flow (hereinafter defined), in the priority noted in the
Partnership Agreement (hereinafter defined), in forty (40) equal annual installments as
shown on the Loan Amortization Schedule (based on a hypothetical 40-year
amortization) attached to the HOME Agreement (each a "Payment"), payable each and
every year beginning on May 01, 2017, and continuing on May 01 of each year
thereafter until May 01, 2057, when all outstanding principal and accrued interest shall
be due and payable in full (the "Maturity Date"). In the event that Borrower is unable to
pay all or any portion of a Payment due to the unavailability of sufficient Net Cash Flow,
such unpaid Payment(s) (or the portion thereof that is not paid) shall be capitalized and
added to the outstanding principal balance of the Note, shall accrue interest at the
Interest Rate, and shall be fully due and payable on the Maturity Date; provided,
however, Borrower's failure to make a Payment under this Note due to lack of Net Cash
Flow shall not constitute a default, event of default or Event of Default under this Note or
any other Loan Document. Borrower may prepay this Note at any time in whole or in
part in its discretion and without penalty.
"Cash Flow" shall have the same definition as given that term in Borrower's Amended and
Restated Agreement of Limited Partnership dated on or about January 30, 2015 (as amended
from time to time, the "Partnership Agreement"). The manner in which Cash Flow is to be
applied as stated in the Partnership Agreement is labeled Exhibit A, attached hereto and made
a part hereof.
Security for Payment of this Note:
The Deed of Trust and the Assignment of Leases recorded against the real property
more particularly described as Lot Four (4), BOULEVARD ACRES ANNEX LOT 4, an
Addition in the City of Corpus Christi, Texas, according to map or plat thereof recorded
in Volume 68, Page 173, Map Records of Nueces County, Texas (together with the
improvements located or to be located thereon, the "Property").
Borrower promises to pay to the order of Lender at the Place for Payment, and according to the
Terms of Payment, the principal amount plus interest at the rates stated above. All unpaid
amounts shall be due on the Maturity Date.
Subject to the terms and conditions of the Subordination Agreement (hereinafter defined) , if an
Event of Default occurs and is continuing, Lender may declare the unpaid principal balance and
earned interest on this Note immediately due.
If this Note or any of the other Loan Documents is given to an attorney for collection or
enforcement, or if suit is brought for collection or enforcement, or if it is collected or enforced
through probate, bankruptcy, or other judicial proceeding, then Borrower shall pay Lender all
reasonable out-of-pocket costs of collection and enforcement incurred by Lender, including
reasonable attorneys' fees and court costs, in addition to any other amounts due from Borrower
to Lender pursuant to the terms of the Loan Documents.
Lender does not intend to contract for, charge or receive more than the maximum amount and
rate of interest that is permissible under applicable state and federal law for the type of loan
Second Lien HOME Promissory Note -- Page 2
evidenced by this Note and the other Loan Documents. To prevent such an occurrence, Lender
and Borrower agree that all amounts of interest, whenever contracted for, charged or received
by Lender, with respect to the loan of money evidenced by this Note, shall be spread, prorated
or allocated over the full period of time this Note is unpaid, including the period of any renewal
or extension of this Note. If demand for payment of this Note is made by Lender prior to the full
stated term, the total amount of interest contracted for, charged or received to the time of such
demand shall be spread, prorated or allocated along with any interest thereafter accruing over
the full period of time that this Note thereafter remains unpaid for the purpose of determining if
such interest exceeds the maximum lawful amount. At maturity (including maturity due to
Lender's acceleration of this Note) or on earlier final payment of this Note, Lender shall compute
the total amount of interest that has been contracted for, charged or received by Lender or
payable by Borrower under this Note and compare such amount to the maximum lawful amount
that could have been contracted for, charged or received by Lender. If such computation
reflects that the total amount of interest that has been contracted for, charged or received by
Lender or payable by Borrower exceeds the maximum lawful amount, then Lender shall apply
such excess to the reduction of the principal balance and not to the payment of interest; or if
such excess interest exceeds the unpaid balance, such excess shall be refunded to Borrower.
This provision concerning the crediting or refunding of excess interest shall control and take
precedence over all other agreements between Borrower and Lender, including without
limitation, this Note and the other Loan Documents, so that under no circumstances shall the
total interest contracted for, charged or received by Lender exceed the maximum lawful rate or
the maximum lawful amount.
Subject to the terms and conditions of the Subordination Agreement, in addition to rights of
Lender as contained herein, Lender shall have the further right to accelerate the maturity of this
Note and declare any unpaid amount immediately due should an Event of Default occur and is
continuing.
Lender hereby agrees that, if Borrower is a limited partnership, any partner of Borrower may,
but shall not be obligated to, cure any default and Event of Default by Borrower hereunder or
under any of the Loan Documents, and for the purposes hereof such curative actions shall be
considered the actions of Borrower.
Notwithstanding any provision herein or in any of the other Loan Documents to the contrary,
including without limitation Section 17 under the heading "Borrower's Obligations" in the Deed of
Trust, Borrower, the direct and indirect equity owners of Borrower, including without limitation
Borrower's general and limited partners, shareholders, members or venturers, shall have no
liability for any amounts due hereunder, and Lender's sole recourse shall be against Borrower's
interest in the Property; provided, however, that such limitation of recourse shall not apply to
Borrower's general partner to the extent of any out-of-pocket loss suffered or incurred by Lender
as a result of any of the following:
1. Fraudulent representations by or on behalf of Borrower contained in any
of the Loan Documents or in any other documents submitted by Borrower to Lender;
2. The application of rents, income or profit received by Borrower from the
Property after and during the continuation of an Event of Default in contravention of the
provisions of the Loan Documents, unless such application is in compliance with the
Subordination Agreement and/or the First Lien Loan Documents (as defined in the Deed
of Trust);
Second Lien HOME Promissory Note -- Page 3
3. Borrower's application of insurance proceeds or condemnation awards in
contravention of the provisions of the Loan Documents, unless such application is in
compliance with the Subordination Agreement and/or the First Lien Loan Documents (as
defined in the Deed of Trust);
4. Borrower's sale or transfer of the Property in contravention of the
provisions of the Loan Documents without Lender's consent, unless such sale is in
compliance with the Subordination Agreement and/or the First Lien Loan Documents (as
defined in the Deed of Trust);
5. Failure by Borrower to insure the Property in accordance with the terms of
the Loan Documents after any applicable notice and cure period; or
6. The violation by Borrower of any environmental laws, rules or regulations
applicable to the Property.
The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the
prior payment in full of the indebtedness evidenced by a Promissory Note of even date herewith
in the original principal amount of $16,332,000.00, executed by Borrower and payable to Wells
Fargo Bank, N.A. ("Senior Lender"), or order, to the extent and in the manner provided in that
certain Subordination and Standstill Agreement of even date herewith between the Borrower,
the Senior Lender and the Lender under this Note (the "Subordination Agreement"). The
Deed of Trust securing this Note is and shall be subject and subordinate in all respects to the
liens, terms, covenants and conditions of the Deed of Trust securing the Note payable to Senior
Lender as more fully set forth in the Subordination Agreement. The rights and remedies of the
Lender and each subsequent holder of this Note under the Deed of Trust securing this Note are
subject to the restrictions and limitations set forth in the Subordination Agreement. Each
subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the
Note, to have agreed to perform and observe all of the terms, covenants and conditions to be
performed or observed by the Lender under this Note under the Subordination Agreement.
When the context requires, singular nouns and pronouns include the plural.
THIS NOTE SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS. IF ANY PROVISION OF THIS NOTE IS 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.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BORROWER NOR LENDER
SHALL ASSERT, AND EACH HEREBY WAIVES, ANY CLAIM AGAINST THE OTHER ON ANY
THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN
CONNECTION WITH, OR AS A RESULT OF, THIS NOTE AND THE OTHER LOAN
DOCUMENTS.
The following notification is provided to Borrower pursuant to Section 326 of the USA Patriot
Act of 2001, 31 U.S.C. Section 5318:
Second Lien HOME Promissory Note --Page 4
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW
ACCOUNT. To help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to obtain, verify, and
record information that identifies each person or entity that opens an account, including
any deposit account, treasury management account, loan, other extension of credit, or
other financial services product. What this means for Borrower: When Borrower
opens an account, if Borrower is an individual, Lender will ask for Borrower's name,
taxpayer identification number, residential address, date of birth, and other information
that will allow Lender to identify Borrower, and, if Borrower is not an individual, Lender
will ask for Borrower's name, taxpayer identification number, business address, and
other information that will allow Lender to identify Borrower. Lender may also ask, if
Borrower is an individual, to see Borrower's driver's license or other identifying
documents, and, if Borrower is not an individual, to see Borrower's legal organizational
documents or other identifying documents.
The Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow the Lender to identify
the Borrower in accordance with the Act.
NOTICE. THIS NOTE AND ALL OF THE OTHER LOAN DOCUMENTS CONSTITUTE A
WRITTEN LOAN AGREEMENT THAT REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES RELATING
TO THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY.
[SIGNATURE PAGE FOLLOWS]
Second Lien HOME Promissory Note-- Page 5
EXECUTED to be effective as of the date first written above.
BORROWER: TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington GP, LLC,
a Texas limited liability company,
its general partner
By: TG 110, Inc.,
a Texas non-profit corporation,
its sole member
By: f/
Gilbert M. Piette,
Executive Director
STATE OF TEXAS §
§
COUNTY OF BEXAR §
This instrument was acknowledged before me on this day of January, 2015,
by Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation,
sole member of TG 110 Lexington GP, LLC, a Texas limited liability company, general
partner of TG 110 Lexington, LP, a Texas limited partnership, on behalf of said limited
partnership.
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Second Lien HOME Promissory Note --Page 6
Exhibit A
Cash Flow
All capitalized terms in this Exhibit A shall have the meaning assigned to such terms in the
Partnership Agreement.
Cash Flow. Subject to any restrictions in the Mortgage Loan Documents, Cash Flow, if
available with respect to any Partnership Accounting Year, shall be applied or distributed
annually, within sixty (60) days after the end of the Partnership Accounting Year (but in no event
earlier than the filing of a Partnership Tax Return for such year), in the following priority:
1. First, to the Investor Limited Partner until the total amount received pursuant to this
clause and Section 4.02(b)(ii) equals the amount of any unpaid Credit Adjuster
Payments owed under Section 3.05 (including any interest on such amount described
therein);
2. Second, to pay the LP Asset Management Fee to the Investor Limited Partner until the
total amount of payments pursuant to this clause and Section 4.02(b)(ii) (including
payments in all prior years) equals $8,500 per year or portion thereof (commencing with
the first year in which Credits are allocated to the Investor Limited Partner), and
increasing by 3% annually thereafter;
3. Third, to pay any loans provided by the Investor Limited Partner;
4. Fourth, to replenish the Operating Reserve to the amount of$507,573;
5. Fifth, to repay any amounts then owed with respect to the Developer Loan;
6. Sixth, to pay any Deferred Management Fees to the Management Agent;
7. Seventh, to the payment of the City of Corpus Christi HOME Loan;
8. Eighth, to pay the GP Asset Management Fee to Lucas & Associates, L.P. until the total
amount of payments pursuant to this clause and Section 4.02(b)(ii) (including payments
in all prior years) equals $7,500 per year, and increasing by 3% annually thereafter;
9. Ninth, to the payment of the Third Mortgage Loan;
10. Tenth, to the General Partner for payment of any unpaid Operating Deficit Loans, with
any such payments to be applied first to accrued but unpaid interest and then to
principal;
11. Eleventh, up to 90% of the balance to pay the Incentive Management Fee to the General
Partner and the Class A Special Limited Partner;
12. Twelfth, 10% of the remaining balance, if any, to the Investor Limited Partner; and
13. Thirteenth, the balance, if any, shall be distributed 50% to the Class A Special Limited
Partner and 50% to the General Partner.
Second Lien Promissory Note--Page 7 of 7
AUS:0543434/00014:563733v3
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY
INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS
FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR
YOUR DRIVER'S LICENSE NUMBER.
SECOND LIEN HOME DEED OF TRUST
Date: To be effective as of January 30, 2015
Borrower: TG 110 Lexington, LP, a Texas limited partnership
Borrower's Mailing Address: 8610 New Braunfels
Suite 500
San Antonio, Texas 78217-6397
Trustee: Miles Risley, together with his successors as City Attorney
Trustee's Mailing Address: P. O. Box 9277
Corpus Christi, TX 78469-9277
Lender: Corpus Christi Community Improvement Corporation,
a Texas nonprofit corporation
Lender's Mailing Address: P.O. Box 9277
Corpus Christi, Texas 78469-9277
Real Estate Lien Note (hereinafter referred to as "Note"):
Date: As of even date hereof.
Amount: Nine Hundred Eighteen Thousand and 00/100 Dollars ($918,000.00)
Maker: TG 110 Lexington, LP, a Texas limited partnership
Payee: Corpus Christi Community Improvement Corporation,
a Texas nonprofit corporation
Final Maturity Date: As provided in the Note.
Terms of Payment: As provided in the Note.
Property (including any improvements located or to be located thereon):
Lot Four (4), BOULEVARD ACRES ANNEX LOT 4, an Addition in the City of Corpus
Christi, Texas, according to map or plat thereof recorded in Volume 68, Page 173, Map
Records of Nueces County, Texas ("Property").
Prior Liens:
Lender hereby approves of, and acknowledges and agrees that Borrower will enter into,
loan documents with Wells Fargo, National Association ("First Lien Lender"),
evidencing, governing and/or securing a $16,332,000.00 construction and permanent
loan (the "First Lien Loan Documents"), and that the lien secured by this Second Lien
HOME Deed of Trust (this "Deed of Trust") and the other Loan Documents (hereinafter
defined), and Lender's rights under this Deed of Trust and the Loan Documents, will be
and are subordinate to those of First Lien Lender, as evidenced by the lntercreditor and
Subordination Agreement dated as of even date herewith, by and between First Lien
Lender, Borrower and Lender (the "Subordination Agreement"), and Lender agrees to
enter into the Subordination Agreement with First Lien Lender to that effect. Lender
hereby agrees to subordinate its lien to those described in the Subordination Agreement
(whether one or more, the "Prior Liens").
Extended Use Agreement:
Lender hereby agrees that the lien of this Deed of Trust shall be subordinate to any
extended low-income housing commitment (as such term is defined in Section
42(h)(6)(B) of the United States Revenue Code (the "Code")) recorded against the
Property in accordance with Section 42(h)(6)(E) of the Code.
Other Exceptions to Conveyance and Warranty:
Easements, rights-of-way, and prescriptive rights, whether of record or not, and all
recorded instruments that affect the Property as of the date hereof (together with the
Prior Liens shall be collectively referred to herein as the "Permitted Exceptions").
FOR VALUE RECEIVED AND TO SECURE PAYMENT OF THE NOTE, BORROWER
HEREBY IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS AND
ASSIGNS THE PROPERTY TO TRUSTEE, HIS SUCCESSORS AND ASSIGNS, IN TRUST,
WITH POWER OF SALE, SUBJECT HOWEVER TO THE PERMITTED EXCEPTIONS.
TO HAVE AND TO HOLD the Property, together with the rights, privileges and
appurtenances thereto belonging unto Trustee and his substitutes or successors, forever,
subject to the Permitted Exceptions, and Borrower hereby binds itself and its heirs, executors,
administrators, personal representatives, successors and assigns to warrant and forever
defend the Property unto Trustee, his substitutes or successors and assigns, against the
claim or claims of all persons claiming or to claim the same or any part thereof, subject to
Permitted Exceptions.
Borrower warrants that it has good and indefeasible fee simple title to the Property and
has full power and lawful authority to grant, bargain, sell, convey, assign, transfer and
mortgage its interest in the Property in the manner and form hereby done or intended.
Borrower will preserve its interest in and title to the Property and will forever warrant and
defend the same to Trustee and Lender against any and all claims, subject to Permitted
Exceptions, and will forever warrant and defend the validity and priority of the lien and security
interest created herein against the claims of all persons and parties whomsoever, subject to
Permitted Exceptions. Further, the foregoing warranty of title shall inure to the benefit of and
Second Lien HOME Deed of Trust-- Page 2
be enforceable by Lender in the event Lender acquires title to the Property pursuant to any
foreclosure. If Borrower pays all amounts due to Lender by the terms of the Loan Documents,
this Deed of Trust shall have no further effect, and Lender shall release it at Borrower's
expense.
BORROWER'S OBLIGATIONS:
Borrower acknowledges, understands and agrees to comply with each and every term
and condition of the following executed on even date hereof, (1) the Note, (2) this Deed of
Trust, (3) the HOME Agreement (hereinafter defined), (4) the Deed Covenant to Bind Property
for Period of Affordability executed by Borrower (the "Restrictions"), and (5) the HOME
Assignment of Leases and Rentals executed by Borrower for the benefit of Lender (the
"Assignment of Leases", and together with the Note, the HOME Agreement, the Restrictions,
and this Deed of Trust, the "Loan Documents."), which include the following:
1. Keep the Property in good repair, ordinary wear and tear and insured casualty
excepted, and in a safe, sanitary and decent condition, in compliance with the City of Corpus
Christi Building and Housing Codes in all material respects throughout the term of the Note.
2. Not convert any of the federal "HOME assisted units", as such term is used in
that HOME Loan Agreement dated of even date hereof and executed by Borrower and Lender
(the "HOME Agreement"), to any form of condominium, cooperative ownership, or other non-
residential use.
3. Pay all taxes and assessments on the Property before past due and provide on
an annual basis to Lender proof of such payment.
4. Pay before past due, or bond around or contest, all claims and demands of
mechanics, materialmen, laborers and others for any and all work performed or materials
delivered for the Property.
5. Preserve the lien's priority as it is established in this Deed of Trust.
6. Deliver to Lender, within ten (10) business days from the date of execution
hereof, a Loan Title Policy, issued by a title company authorized to do business in the State of
Texas, on the form promulgated by the Texas State Board of Insurance, wherein the title to
the Property is insured as indicated in the corresponding Commitment for Title Insurance
subject to the Permitted Exceptions.
7. Maintain, at Borrower's sole expense, in a form reasonably acceptable to
Lender, an insurance policy that is in strict accordance with the insurance requirements set
forth in the HOME Agreement, and comply with all conditions related to insurance stated in
the HOME Agreement.
8. Provide evidence to Lender that all insurance required herein has been paid
current as of the date such evidence is furnished to Lender.
Second Lien HOME Deed of Trust-- Page 3
9. Keep any buildings occupied as required by the insurance policy and the
HOME Investment Partnership Program enacted under Title II of the Cranston-Gonzales
National Affordable Housing Act.
10. Give Lender prompt, written notice of the occurrence of any material casualty
affecting the Property or the institution of any proceedings for eminent domain or for the
condemnation of the Property, or any portion thereof.
11. Subject to the terms and conditions of the Subordination Agreement, assign to
Lender all insurance proceeds on the Property and all causes of action, claims, compensation,
awards or recoveries for any damage, condemnation or taking of all or any part of the
Property or for any damage or injury to it or for any loss or diminution in value of the Property;
provided, however, that if such proceeds and other amounts available to Borrower are
sufficient to restore the Property, in Lender's reasonable discretion, the proceeds shall be
applied to such restoration.
12. If this is not a first lien, pay all prior notes that Borrower is liable to pay and
abide by all prior lien instruments in accordance with their terms.
13. Upon 48 hours prior notice, permit Lender to inspect, during normal business
hours, the Property to determine if it is being maintained in accordance with local Uniform
Building Code and property maintenance and upkeep standards.
14. Ensure the performance of all obligations and compliance at all times with each
and every term and condition of the Loan Documents.
15. Ensure the performance of all obligations and the compliance at all times with
each and every term and condition of the Subordination Agreement.
16. Not discriminate against any prospective tenant of the Property on the basis of
the prospective tenant's race, color, creed, sex, national origin, age, handicap, familial status
or on the basis of said tenant's receipt of, or eligibility for, housing assistance under any
federal, state or local housing assistance program or on the basis that the prospective tenant
has a minor child or children who will be living with him/her and acknowledges that the project
for which this Deed of Trust and the Note is given is to be constructed specifically as a
housing development intended and authorized for "low income" persons, as that term is
defined in 24 CFR Part 812 and all other applicable federal laws, regulations, and guidelines.
17. Remain liable for the following and for any reasonable out-of-pocket loss, cost,
direct and actual expense, liability, obligation and claim which is suffered or incurred by
Lender on account of any of the following (unless such action is in compliance with the terms
of the First Lien Loan Documents and/or the Subordination Agreement):
(a) Borrower's commission of any fraud, or its breach of any material
representation or warranty contained in the Loan Documents or any document or
instrument submitted in connection with the Note;
(b) Any default, beyond applicable notice and cure periods, by Borrower in
its obligations under any of the Loan Documents to pay all taxes, assessments and
other charges imposed or assessed against the Property or any personalty used in
Second Lien HOME Deed of Trust-- Page 4
connection with the operation of the Property, or to keep the Property and all such
personalty insured, in accordance with the terms of the Loan Documents;
(c) Any waste (excluding normal wear and tear and insured casualty) of the
Property or any uninsured damage to the Property caused by any negligent or willful
violation by Borrower of any covenant or agreement contained in any of the Loan
Documents pertaining hereto regarding the maintenance, repair and restoration of the
Property or any damage to or deterioration in the Property caused by any negligent or
willful act or omission of Borrower or the employees, agents, other representatives or
contractors of Borrower, that is not timely repaired;
(d) Borrower's taking or allowing the taking of any action that invalidates or
materially diminishes any insurance that the terms of the Loan Documents require
Borrower to carry on the Property;
(e) The failure of Borrower to pay any indebtedness or obligation that
results in the filing or creation of a mechanic's, materialman's or judgment lien or other
lien against the Property or any part thereof, subject to Borrower's right to bond around
or contest same;
(f) The failure of Borrower to properly apply, or ensure the application of, in
accordance with the Loan Documents, all insurance proceeds and condemnation
rewards received by Borrower with respect to the Property;
(g) The failure of Borrower to return or deliver to Lender any tangible
personal property (including leases, books, records and files relating to the leasing,
operation and maintenance of the Property) taken from the Property or kept elsewhere
by Borrower following any foreclosure of the Property;
(h) The failure of Borrower to comply with any applicable governmental
statutory or other legal requirements or to ensure such compliance in connection with
the Property or to correct any material defects in construction of the Property of which
Borrower has actual knowledge;
(i) Any and all of Lender's reasonable, actual and direct out-of-pocket
costs, expenses, damages or liabilities, whether incurred by Lender prior to or
following foreclosure of this Deed of Trust and whether Lender shall be in the status of
a lienholder or an owner of the Property following foreclosure (directly or indirectly),
arising out of or attributable to the use, generation, storage, release, threatened
release, discharge, disposal, or presence on, under, or about the Property of any
hazardous substance defined under environmental law;
(j) All reasonable attorneys' fees and other reasonable out-of-pocket costs
incurred by Lender in order to recover from Borrower any of the amounts for which
Borrower remains liable as provided herein;
(k) All reasonable attorneys' fees and other costs incurred by Lender in the
event all of the following occur: (i) Borrower defaults beyond applicable notice and cure
period, as applicable, under any of the Loan Documents (ii) Lender accelerates the
maturity of the Note and commences judicial or non-judicial foreclosure proceedings,
Second Lien HOME Deed of Trust-- Page 5
and (iii) either before or after the foreclosure sale, Borrower institutes litigation or files
a petition or claim in any judicial or administrative proceeding, including without
limitation any bankruptcy or similar proceeding or any action seeking any injunctive
relief against Lender or Trustee, which contests Lender's right of foreclosure or the
legality of any of the Loan Documents; and
(I) The failure of Borrower to deliver to Lender all rents and profits
collected or received by Borrower in accordance with the terms of the Assignment of
Leases.
It being understood that the liability provisions contained in this Section 17 of Borrower's
Obligations are binding upon Borrower and its successors and assigns and shall inure to the
benefit of Lender and any subsequent holder of the Note; however, neither Borrower nor the
direct or indirect equity owners of Borrower, including, without limitation, Borrower's general and
limited partners, shareholders, members and/or venturers, as applicable, shall have any liability
for any amounts secured hereunder, and Lender's sole recourse shall be against Borrower's
interest in the Property
BORROWER'S REPRESENTATIONS AND WARRANTIES:
Borrower, on behalf of itself, hereby represents, warrants and covenants the following:
1. No bankruptcy or insolvency proceedings are pending or, to Borrower's
knowledge, contemplated by or against Borrower or by or against any endorser, cosigner,
indemnitor or guarantor of the Note secured hereby.
2. All reports, certificates, affidavits, statements and other data furnished by
Borrower to Lender in connection with the loan evidenced by the Note secured hereby are
true and correct in all material respects and Borrower has not omitted to state any fact or
circumstance necessary to make the statements contained therein not misleading.
3. The execution, delivery and performance of the Loan Documents have been
duly authorized by all necessary action to be binding and enforceable against Borrower in
accordance with the respective terms thereof (except as the same may be limited by
bankruptcy, insolvency and similar laws affecting the rights of creditors generally and
principals of equitable relief and the discretion of a court of law) and do not contravene, result
in a breach of or constitute a default under any contract or agreement of any nature executed
by Borrower to which Borrower is a party or by which Borrower or any of its properties may
be bound.
4. To the best of Borrower's knowledge, the Property and the intended use
thereof by Borrower comply with all applicable restrictive covenants, zoning ordinances,
subdivision and building codes, flood disaster laws, applicable health and environmental laws
and regulations and all other ordinances, orders or requirements issued by any state, federal
or municipal authorities having or claiming jurisdiction over the Property.
5. All utility services necessary and sufficient for the full use, occupancy,
operation and disposition of the Property for its intended purposes are available or will be
Second Lien HOME Deed of Trust--Page 6
available when needed, including water, storm sewer, sanitary sewer, gas, electric, cable and
telephone facilities.
6. All streets, roads, highways, bridges and waterways necessary for access to
and full use, occupancy, operation and disposition of the Property, have been completed,
have been dedicated to the appropriate governmental authority, and are open and available,
or will be available when needed by the Property without, to Borrower's knowledge, further
condition or cost to Borrower.
7. There are no judicial or administrative actions, suits or proceedings pending or,
to Borrower's knowledge threatened, against or affecting Borrower or the Property which, if
adversely determined, would impair either the Property or Borrower's ability to perform the
covenants or obligations required to be performed under this Deed of Trust or any of the
other Loan Documents.
8. The Property is free from any lien for water charges, sewer rents, taxes and
assessments.
9. As of the date of this Deed of Trust, no part of the Property has been taken in
condemnation, eminent domain or like proceeding nor, to Borrower's knowledge, is any such
proceeding pending.
LENDER'S RIGHTS
Subject to the terms of the Subordination Agreement and the First Lien Loan
Documents, under this Deed of Trust:
1. Lender may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee.
2. If the proceeds of the Note secured hereby are used to pay any debt secured by
prior liens, Lender is subrogated to all of the rights and liens of the holders of any debt so paid.
3. Any proceeds payable under the insurance policy required to be obtained by this
Deed of Trust or any of the Loan Documents shall be payable to Lender. Lender will apply
such proceeds it receives to repair or replace damaged or destroyed improvements covered by
the policy, if the proceeds and other amounts available to Borrower are sufficient, in Lender's
reasonable discretion, for such restoration. Any proceeds not used for restoration hereunder
shall be disbursed to Borrower.
4. If Borrower fails to perform any of Borrower's obligations and all applicable notice
and cure periods have expired, Lender may, at its option, perform such obligations and be
reimbursed by Borrower on demand at the place where the Note secured hereby is payable for
any reasonable sums so paid, including reasonable attorneys' fees, plus interest on those
sums from the dates of payment at the rate stated in the Note for matured, unpaid amounts.
The sum to be reimbursed shall be secured by this Deed of Trust.
5. If Borrower defaults beyond all applicable notice and cure periods, or if a material
default occurs on a senior lien note executed by Borrower that is secured by the Property
Second Lien HOME Deed of Trust--Page 7
beyond all applicable notice and cure periods, as may be required by law or by written
agreement, then Lender may:
(a) Accelerate the maturity of the Note hereby secured and declare the entire
unpaid principal balance and applicable interest on the Note immediately due and
payable;
(b) Request Trustee to foreclose this lien, in which case Lender or Lender's
agent shall give notice of the foreclosure sale as provided by the Texas Property Code
as then in effect; and
(c) Purchase the Property at any foreclosure sale by offering the highest bid
and then have the bid credited against the outstanding balance due under the Note.
6. In addition to the rights of Lender contained herein, Lender shall have the further
right to accelerate the maturity of the Note hereby secured and declare the entire unpaid
principal balance and all accrued interest immediately due should any one or more of the
following occur (each, an "Event of Default"):
(a) Subject to the terms and conditions of the Permitted Exceptions and
resident leases of the Property, and excepting any items replaced in the ordinary course
of business, Borrower fully or partially sells, conveys, disposes of, alienates,
hypothecates, assigns, mortgages, pledges, transfers or encumbers all or any material
part of the Property or any material interest therein, the rents therefrom, the income
therefrom, or any other items of collateral, whether voluntarily or involuntarily, without
the prior written consent of Lender, such consent not to be unreasonably delayed,
withheld or conditioned, other than any transactions (i) permitted by the terms of the
Loan Documents (including without limitation, the transactions contemplated by the
Third Lien Loan Documents, as such term is defined in the HOME Agreement), (ii)
related to refinancing the Prior Liens and/or any subordinate liens, (iii) carried out in the
ordinary course of business (such as granting easements and entering into license
agreements), and/or (iv) permitted by the terms of the First Lien Loan Documents or the
Partnership Agreement (hereinafter defined);
(b) Subject to the terms of the Permitted Exceptions, Borrower fully or
partially sells, conveys, assigns, mortgages, pledges, transfers or encumbers an interest
in Borrower (if Borrower is not a natural person or persons but a corporation,
partnership, trust or other legal entity), including, in the event Borrower is a limited or
general partnership, a joint venture or a limited liability company, a change in the
ownership interests in any general partner (but not any limited partner), any joint
venturer or any member either voluntarily, involuntarily or otherwise, whether such
interest is in the form of a beneficial or partnership interest or in the form of a power of
direction, control or management, or otherwise, without the prior written consent of
Lender, such consent not to be unreasonably delayed, withheld or conditioned.
Notwithstanding the foregoing, the removal and replacement of Borrower's general
partner by Borrower's limited partner or the transfer by Borrower's limited partners of
partnership interests in Borrower in accordance with Borrower's Amended and Restated
Agreement of Limited Partnership dated on or about January 30, 2015 (as amended
from time to time, the "Partnership Agreement"), shall not constitute a default or
violation of this Deed of Trust or any of the other Loan Documents. Moreover,
Second Lien HOME Deed of Trust-- Page 8
Borrower's general partner is permitted to grant a security interest in its partnership
interest as needed to secure financing for the Property, and such encumbrance shall not
constitute a default or violation of this Deed of Trust or any of the other Loan
Documents;
(c) Borrower converts any of the federal HOME assisted units (as described
in the HOME Agreement) to a form of condominium, cooperative ownership, or other
non-residential use;
(d) Borrower: (i) files (as debtor) or has filed against it, a petition for the
appointment of a receiver or for bankruptcy or insolvency, (ii) becomes or is adjudicated
insolvent or bankrupt or admits in writing the inability to pay debts as they mature, (iii)
petitions or applies to any tribunal for or consents to or does not contest the
appointment of a receiver, trustee, custodian or similar officer for Borrower or for any
general partner of Borrower or for a substantial part of the assets of Borrower, or (iv)
commences any case, proceeding or other action under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect. In any involuntary proceeding Borrower
shall have ninety (90) days to have such matter dismissed or stayed;
(e) The Property or any substantial part thereof is taken on execution or
other process of law in any action against Borrower resulting in Borrower being unable
to operate the Property for its intended purpose;
(f) Borrower permanently abandons the Property or any material portion
thereof;
(g) Borrower defaults or at any time fails to timely comply with any one or
more terms or conditions of the Loan Documents beyond all applicable notice and cure
period;
(h) Subject to the terms of the Subordination Agreement, the holder of any
lien or security interest on the Property (other than Lender), without implying the consent
of Lender to the existence or creation of any such lien or security interest (except as
acknowledged herein), and whether superior or subordinate to this Deed of Trust or the
Note secured hereby, (i) declares a default, and (ii) such default is not cured within all
applicable notice and grace periods set forth in the applicable document, or institutes
foreclosure or other proceedings for the enforcement of its remedies thereunder;
(i) The Property, or any portion thereof, is subjected to actual waste or to
removal, demolition or alteration so that the value of the Property is materially
diminished thereby and Lender determines, in its reasonable discretion, that restoration
is infeasible and Lender is not adequately protected from any material loss, damage or
risk associated therewith;
(j) Any representation or warranty made in any the Loan Documents by
Borrower, any general partner in Borrower, or any person authorized by Borrower to
execute any of the Loan Documents on behalf of Borrower, is determined by Lender to
have been false or misleading in any material and detrimental respect at the time made;
provided, however, that solely with regard to non-financial misrepresentations or
Second Lien HOME Deed of Trust-- Page 9
warranties, Borrower shall have thirty (30) days after receipt of written notice from
Lender in which to take such action as may be necessary to cause the matter or thing
represented to become true;
(k) Borrower (i) initiates any material changes in construction work on the
Property without Lender's prior, written approval, such approval not to be unreasonably
delayed, withheld or conditioned, with a "material change" defined as any single change
order of $50,000 or more or aggregate change orders in excess of $100,000, or (ii) fails
to provide to Lender documentation, reasonably acceptable to Lender, of the actual
project costs incurred in connection with the Property, and such failure continues for
fifteen (15) days after Lender delivers written notice thereof to Borrower;
(I) Borrower fails to commence construction of the project for which this
Deed of Trust and the Note are given, and more specifically detailed in Section 15 of
General Provisions hereof, by no later than sixty (60) days following the execution of this
Deed of Trust, or fails to complete construction in substantial compliance with all
conditions and requirements set forth in the Loan Documents, including all attachments
and exhibits thereto, by no later than December 31, 2015;
(m) Borrower's failure to pay any installment of the indebtedness evidenced
by this Deed of Trust in accordance with the terms hereof and/or the other Loan
Documents, and such failure shall continue for a period of thirty (30) days after the date
due.
(n) Borrower's failure to perform or its breach of any of the covenants or
obligations herein contained or contained in any of the other Loan Documents that is not
described in Sections (a) - (m) above, and such continues for thirty (30) days after
written notice thereof is delivered by Lender to Borrower; provided, however, if the
default is not of the type that can be cured in said 30-day period, Borrower shall have
such additional time as is necessary to cure such default provided Borrower is using
commercially reasonable efforts to do so.
If an Event of Default exists, all obligations, if any, of Lender hereunder, including,
without limitation, any obligation to advance funds hereunder or under any of the other Loan
Documents, shall immediately cease and terminate.
Subject to the terms and provisions of the Note, notwithstanding anything to the
contrary herein contained or inferable from any provisions hereof and/or any of the other Loan
Documents, during the existence of an Event of Default, upon Lender's election, the unpaid
principal and applicable accrued interest on the Note shall immediately become due and
payable in full.
An Event of Default shall be a default under each of the other Loan Documents and
any other contract or agreement, if applicable, between Borrower and Lender.
Second Lien HOME Deed of Trust--Page 10
TRUSTEE'S DUTIES:
If requested by Lender to foreclose this lien, Trustee shall:
1. Either personally or by agent give notice of the foreclosure sale as required by
the Texas Property Code as then amended.
2. Sell and convey all or part of the Property to the highest bidder for cash with a
general warranty binding Borrower, subject to the Permitted Encumbrances.
3. From the proceeds of the sale, pay, in this order:
(a) Reasonable out-of-pocket expenses of foreclosure, including a
reasonable and customary fee to Trustee;
(b) To Lender, the full amount of the outstanding principal balance under
the Note, accrued interest, reasonable attorney's fees, and other charges due under
the terms of the Loan Documents and unpaid;
(c) Any amounts required by law to be paid before payment to Borrower;
and
(d) To Borrower, any balance.
GENERAL PROVISIONS:
1. If any of the Property is sold pursuant to a foreclosure action under this Deed of
Trust, Borrower shall immediately surrender possession to the purchaser. If Borrower fails to
do so, Borrower shall become a tenant at sufferance of the purchaser, subject to an action
for forcible detainer.
2. Recitals in any Trustee's deed conveying the Property will be presumed to be
true.
3. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any
other remedy will not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment
of all or part of the Note secured hereby is extended or part of the Property is released.
5. If any portion of the Note secured hereby cannot be lawfully secured by this
Deed of Trust, payments made by Borrower pursuant to the terms of the Note shall be
applied first to discharge that portion.
6. Borrower assigns to Lender all sums payable to or received by Borrower from
condemnation of all or part of the Property, from private sale in lieu of condemnation of all or
part of the Property, and from damages caused by public works or construction on or near
the Property. Should such an event occur, said sums shall be payable to Lender. Lender will
release such proceeds to Borrower to restore the Property if the proceeds and any other
amounts available to Borrower are sufficient, in Lender's reasonable discretion, for such
Second Lien HOME Deed of Trust-- Page 11
restoration. Any proceeds remaining after restoration, which are not used shall be released
to Borrower. Lender shall not be liable for failure to collect or to exercise diligence in
collecting any such sums.
7. Interest on the debt secured by this Deed of Trust shall not exceed the
maximum amount of nonusurious interest that may be contracted for, taken, reserved,
charged, or received under Texas law; any interest in excess of that maximum amount shall
be credited on the principal of the debt or, if that has been paid, refunded. Upon any
acceleration or required or permitted prepayment, any such excess shall be canceled
automatically as of the date of acceleration or prepayment or, if already paid, credited on the
principal of the debt or, if the principal of the debt has been paid, refunded. This provision
overrides other provisions in this and all other instruments concerning the debt.
8. Borrower shall at all times comply and ensure that the Property complies, in all
material respects, with all federal, state, and local statutes, ordinances, regulations and other
governmental or quasi-governmental requirements and private covenants now or hereafter
relating to the ownership, construction, rehabilitation, use or operation of the Property,
including, but not limited to, those concerning employment and compensation of persons
engaged in operation and maintenance of the Property and any environmental, disabled
person access or ecological requirements, even if such compliance shall require structural
changes to the Property. Borrower shall not use or occupy, or knowingly allow the use or
occupancy of, the Property in any manner which violates, in any material respect, any lease
of the Property or any applicable federal, state, or local law, rule, regulation or order or which
constitutes a public or private nuisance or which makes void, voidable or cancelable, or
increases the premium of, any insurance then in force with respect thereto.
9. To the extent permitted by applicable law, in the event that Borrower is the
subject of any insolvency, bankruptcy, receivership, dissolution, reorganization or similar
proceeding, federal or state, voluntary or involuntary, under any present or future law or act,
Lender is entitled to the automatic and absolute lifting of any automatic stay as to the
enforcement of its remedies under the Loan Documents against the Property, including
specifically, but not limited to, the stay imposed by Section 362 of the United States Federal
Bankruptcy Code, as amended.
10. When the context requires, singular nouns and pronouns include the plural.
11. The term "Note" includes all sums secured by this Deed of Trust.
12. This Deed of Trust shall bind, inure to the benefit of, and be exercised by
successors in interest of Lender and Borrower.
13. If Borrower and Maker are not the same person, the term "Borrower" shall
include Maker.
14. Lender may remedy any default without waiving it.
15. Lender may waive any default without waiving prior or subsequent defaults.
16. The term "days" when used herein shall mean calendar days. The term
"business day" when used herein shall mean that part of any given day from Monday through
Second Lien HOME Deed of Trust-- Page 12
Friday excluding those scheduled holidays officially adopted and approved by the City of
Corpus Christi's City Council for its employees.
17. All notices demands, requests or other communications required or permitted
to be given pursuant to the provisions of this Deed of Trust and the other Loan Documents
shall be in writing and shall be considered properly given if mailed by first class United States
mail, postage prepaid, registered or certified with return receipt requested, or by depositing
same with Federal Express or another reputable private courier service for next business day
delivery or by delivering same in person to the intended addressee. All notices, demands and
requests shall be effective upon such personal delivery, or one (1) business day after being
deposited with the private courier service, or three (3) business days after deposit in the
custody of the U.S. Postal Service. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given as herein required shall be
deemed to be receipt of the notice, demand or request sent. For purposes of notice, the
addressee of the parties shall be as follows:
To Lender: Corpus Christi Community Improvement Corporation
do: City of Corpus Christi
P.O. Box 9277
Corpus Christi, Texas 78469-9277
With a copy to: City Attorney's Office
Attn: City Attorney
P. O. Box 9277
Corpus Christi, TX 78469-9277
To Borrower: TG 110 Lexington, LP
8610 N. New Braunfels, Suite 500
San Antonio, Texas 78217
With a copy to: Wells Fargo Affordable Housing,
Community Development Corporation
MAC D1053-170
301 South College Street, 17th Floor
Charlotte, NC 28202-6000
Attn: Director of Asset Management
With a copy to: TG 110, Inc.
8610 N. New Braunfels, Suite 500
San Antonio, Texas 78217-6397
Attention: Executive Director
Any party shall have the right to change its address for notice hereunder to any other
location within the continental United States by the giving of twenty (20) days' notice to the
other party in the manner set forth herein.
18. In the event of any conflict between the provisions of this Deed of Trust and
those of the Subordination Agreement and the First Lien Loan Documents, the terms of the
Subordination Agreement and the First Lien Loan Documents shall prevail; provided however;
with respect to any matter addressed in both such documents, the fact that one document
Second Lien HOME Deed of Trust--Page 13
provides for greater, lesser or different rights or obligations than the other shall not be deemed
a conflict unless the applicable provisions are inconsistent and could not be simultaneously
enforced or performed. In the event of any conflict between the provisions of this Deed of
Trust and those of any other Loan Document, this Deed of Trust shall prevail.
19. Whenever Lender is required under this Deed of Trust or any of the other Loan
Documents to provide its consent or approval, or render its determination, judgment or
decision, such consent, approval, determination, judgment or decision (or the denial of such
approval, determination, judgment or decision, as the case may be) shall not be unreasonably
withheld or conditioned and shall be given within a reasonable time after its receipt of the
request therefor, taking into consideration the circumstances of the request
20. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER
BORROWER NOR LENDER SHALL ASSERT, AND EACH HEREBY WAIVE, ANY CLAIM
AGAINST THE OTHER ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL
DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS DEED
OF TRUST AND THE OTHER LOAN DOCUMENTS.
21. The following notification is provided to Borrower pursuant to Section 326 of the
USA Patriot Act of 2001, 31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW
ACCOUNT. To help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person or entity that opens an
account, including any deposit account, treasury management account, loan,
other extension of credit, or other financial services product. What this means
for Borrower: When Borrower opens an account, if Borrower is an individual,
Lender will ask for Borrower's name, taxpayer identification number, residential
address, date of birth, and other information that will allow Lender to identify
Borrower, and, if Borrower is not an individual, Lender will ask for Borrower's
name, taxpayer identification number, business address, and other information
that will allow Lender to identify Borrower. Lender may also ask, if Borrower is
an individual, to see Borrower's driver's license or other identifying documents,
and, if Borrower is not an individual, to see Borrower's legal organizational
documents or other identifying documents.
The Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L 107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow the Lender to
identify the Borrower in accordance with the Act.
22. THIS DEED OF TRUST AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS AND APPLICABLE UNITED STATES FEDERAL LAW. NOTWITHSTANDING
ANYTHING TO THE CONTRARY SET FORTH IN THIS DEED OF TRUST AND/OR ANY OF
THE OTHER LOAN DOCUMENTS, BORROWER AND LENDER HEREBY AGREE THAT
Second Lien HOME Deed of Trust-- Page 14
THE STATE AND FEDERAL COURTS LOCATED IN SAN ANTONIO, TEXAS SHALL HAVE
EXCLUSIVE JURISDICTION AND VENUE WITH RESPECT TO ALL ACTIONS BROUGHT
BY OR AGAINST ANY PARTY UNDER OR PURSUANT TO THIS DEED OF TRUST
AND/OR ANY OF THE OTHER LOAN DOCUMENTS, AND BORROWER AND LENDER
HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND TO
SERVICE OF PROCESS, EFFECTIVE UPON RECEIPT BY PERSONAL SERVICE,
OVERNIGHT EXPRESS DELIVERY OR REGISTERED OR CERTIFIED MAIL. TO THE
EXTENT OF ANY INCONSISTENCY BETWEEN THIS SECTION AND A LIKE PROVISION
IN ANY OTHER LOAN DOCUMENTS, THIS SECTION SHALL GOVERN AND CONTROL.
23. Lender agrees that the lien of this Deed of Trust shall be subordinate to any
extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B) of
the Internal Revenue Code) recorded against the Property.
24. THIS DEED OF TRUST AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF.
[SIGNATURE PAGE FOLLOWS]
Second Lien HOME Deed of Trust--Page 15
EXECUTED to be effective as of the date and year first written above.
BORROWER:
TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington GP, LLC,
a Texas limited liability company,
its general partner
By: TG 110, Inc.,
a Texas non-profit corporation,
its sole member
By:
Gilbert M. Piette,
Executive Director
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on this 99 day of January, 2015, by
Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation, sole
member of TG 110 Lexington GP, LLC, a Texas limited liability company, general partner of TG
110 Lexington, LP, a Texas limited partnership, on behalf of said limited partnership.
y„ 1100
eo Pu: Audrey D Rogers
L l Notary Public
q�Py State of Texas ��jj" �/
SOF My Comm.Exp.11/19/18 Notary PublI6, State of Te�2(s
AFTER RECORDING, PLEASE RETURN TO:
Attention: Administrator, Community Development Office
Housing and Community Development Department
c/o Corpus Christi Community Improvement Corporation
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Second Lien HOME Deed of Trust -- Page 16
AUS:0543434/00014:563734v2
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 January 30, 2015, by TG 110 Lexington, LP, a
Texas limited partnership (hereinafter referred to as "Assignor"), for benefit of Corpus Christi
Community Improvement Corporation, a Texas nonprofit 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:
Lot Four (4), BOULEVARD ACRES ANNEX LOT 4, an Addition in the City of
Corpus Christi, Texas, according to map or plat thereof recorded in Volume 68,
Page 173, Map Records of Nueces County, Texas (together with the
improvements located or to be located thereon, 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 Second Lien HOME Promissory
Note of even date herewith executed by Assignor in favor of Assignee in the original principal
amount of Nine Hundred Eighteen Thousand and 00/100 Dollars ($918,000.00), 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 Second Lien 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"), and that Deed Covenant to Bind Property for Period of Affordability
executed by Borrower (the "Restrictions"). The Deed of Trust, the Note, this Assignment, the
Restrictions, 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 Intercreditor and
Subordination Agreement (hereinafter referred to herein as the "Subordination Agreement")
of even date herewith by and between the Wells Fargo National Association, a national banking
association ("First Lien Lender"), 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 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
HOME Assignment of Leases and Rentals --Page 2
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,
and no prior assignment has been made of the leases or the rents, other than in favor of First
Lien Lender and Assignee. 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
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.
HOME Assignment of Leases and Rentals -- Page 3
12. THIS ASSIGNMENT IS TO BE GOVERNED, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF TEXAS. 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.
[SIGNATURE PAGE FOLLOWS]
HOME Assignment of Leases and Rentals --Page 4
Executed to be effective as of the date first set forth above.
ASSIGNOR:
TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington GP, LLC,
a Texas limited liability company,
its general partner
By: TG 110, Inc.,
a Texas non-profit corporation,
its sole member
By:
Gilbert M. Piette,
Executive Director
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on this 9, day of January,
2015, by Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit
corporation, sole member of TG 110 Lexington GP, LLC, a Texas limited liability
company, general partner of TG 110 Lexington, LP, a Texas limited partnership, on
behalf of said limited partnership.
Audrey DRogers
4e/--ta .
Notary Public • NotaryPubli, State of T as
c
State of Texas
'l�1of Ph My Comm.Exp.11119118.1
HOME Assignment of Leases and Rentals -- Page 5
AFTER RECORDING, PLEASE RETURN TO:
Attention: Administrator, Community Development Office
c/o Corpus Christi Community Improvement Corporation
P.O. Box 9277
Corpus Christi, Texas 78469-9277
HOME Assignment of Leases and Rentals -- Page 6
AUS:054343 4/00014:5 63 73 7v3
DEED COVENANT
TO BIND PROPERTY
FOR PERIOD OF AFFORDABILITY
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES §
Pursuant to that HOME Loan Agreement dated to be effective as of December 30,
2015, entered into between the Corpus Christi Community Improvement
Corporation, a non-profit corporation organized under the laws of the State of Texas
("CCCIC"), and TG 110 Lexington, LP, a Texas limited partnership ("Lexington"),
which is the legal title holder to property described below (the "HOME Agreement"), is
incorporated in this instrument by reference, Lexington accepted federal funds in
conjunction with the United States Department of Housing and Urban Development's
Home Investment Partnership Program administered by CCCIC, for the development of
multifamily housing to be known as Lexington Manor and located on the following
property:
Lot Four (4), BOULEVARD ACRES ANNEX LOT 4, an
Addition in the City of Corpus Christi, Texas, according to
map or plat thereof recorded in Volume 68, Page 173, Map
Records of Nueces County, Texas.
Pursuant to the terms, conditions, and covenants contained within the HOME
Agreement, Lexington, in consideration of receiving the funding, agrees to bind the
Property with the affordability requirements specified in the HOME Agreement and Title
24, Part 92.252, of the United States Code of Federal Regulations, for a period of not
less than twenty (20) years from the date of completion of the demolition and
reconstruction of the project on the Property, which shall be evidenced by the issuance
of certificates of occupancy (or the jurisdictional equivalent) for the buildings located on
the Property.
(EXECUTION PAGE FOLLOWS)
Deed Covenant to Bind Property for Period of Affordability-- Page 1
This instrument constitutes a covenant running with the land required by
federal law and binds Lexington, and its successors, heirs, assigns, and
transferees, such Property being subject to this instrument.
TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington 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
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on thia) day of January, 2015,
by Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation,
sole member of TG 110 Lexington GP, LLC, a Texas limited liability company, general
partner of TG 110 Lexington, LP, a Texas limited partnership, on behalf of said limited
partnership.
�opV PUaG,, Audrey D Rogers
A L StatTotary Public �/
i State of Texas
.910f1 My Comm.Exp.11/19/18 Notary Publi , State of Te as
AFTER RECORDING RETURN TO:
ATTN: Community Development Administrator
Neighborhood Services Department
Corpus Christi Community Improvement Corporation
P. O. Box 9277
Corpus Christi, TX 78469-9277
Deed Covenant to Bind Property for Period of Affordability -- Page 2
CERTIFICATION REGARDING LOBBYING
FOR AGREEMENTS, GRANTS, LOANS,
AND COOPERATIVE AGREEMENTS
The undersigned certifies to the best of its knowledge and belief, that:
1. No federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
an agency, a member of congress, an officer or employee of congress, or an employee of a
member of congress in connection with the awarding of any federal agreement, the making of
any federal grant, the making of any federal loan, the entering into of any cooperative agreement,
or modification of any federal agreement, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
member of congress, an officer or employee of congress, or an employee of a member of
congress in connection with this federal agreement, grant, loan, or cooperative agreement, the
undersigned shall complete and submit standard form — LLL, "Disclosure Form to Report
Lobbying", in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including sub-agreements, subgrant, and
agreements under grants, loans, and cooperative agreements) and that shall certify and disclose
accordingly.
This certification is material representation of fact which reliance was placed when this
transaction was made or entered into submission of this certification is a prerequisite for making
or entering into this transaction imposed by 31 U.S.C. Section 1352. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(EXECUTION PAGE FOLLOWS)
Executed to be effective as of the date set forth in the acknowledgment.
TG 110 LEXINGTON, LP,
a Texas limited partnership
By: TG 110 Lexington GP, LLC,
a Texas limited liability company,
its general partner
By: TG 110, Inc.,
a Texas non-profit corporation,
its sole member
By:
Gilbert M. Piette,
Executive Director
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF BEXAR §
This instrument was acknowledged before me on this <71'7 day of January, 2015, by
Gilbert M. Piette, Executive Director of TG 110, Inc., a Texas nonprofit corporation, sole
member of TG 110 Lexington GP, LLC, a Texas limited liability company, general partner of
TG 110 Lexington, LP, a Texas limited partnership, on behalf of said limited partnership.
P , E Apludley D Rogers L9�"e(0/(-1
Notary Public
Py State of Texas Notary PuState of Te
''FoI - My Comm.Exp.11/19/18
AFTER RECORDING RETURN TO:
ATTN: Community Development Administrator
Housing and Community Development Department
Corpus Christi Community Improvement Corporation
P. O. Box 9277
Corpus Christi, TX 78469-9277