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HomeMy WebLinkAboutResolution No. 2014-047CITY OF THE COLONY, TEXAS RESOLUTION NO. 2014-047 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS APPROVING A CONSENT TO ASSIGNMENT AND AGREEMENT AND RELATED DOCUMENTS BY AND BETWEEN THE CITY OF THE COLONY, TEXAS AND WESTERN ALLIANCE BANK REGARDING THE ASSIGNMENT OF A DEVELOPER'S AGREEMENT, ECONOMIC DEVELOPMENT AGREEMENT, FIRST AMENDMENT TO DEVELOPER'S AGREEMENT, SECOND AMENDMENT TO DEVELOPER'S AGREEMENT, THIRD AMENDMENT TO DEVELOPER'S AGREEMENT AND FOURTH AMENDMENT TO DEVELOPER'S AGREEMENT REGARDING PD -18; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of The Colony, Texas hereby authorizes the Mayor of City of The Colony, Texas to enter into a Consent to Assignment and Agreement, Consent to Assignment of Developer's Agreement and Economic Development Agreement (PD 18), Irrevocable Payment Instructions (PD 18), and related documents by and between the City of The Colony, Texas and Western Alliance Bank, a copy of which is attached hereto as Exhibit A. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: SECTION 1. The findings set forth above are incorporated into the body of this Resolution as if fully set forth herein. SECTION 2. The City Council hereby approves the Consent to Assignment and Agreement, Consent to Assignment of Developer's Agreement and Economic Development Agreement (PD 18), Irrevocable Payment Instructions (PD 18), and related documents, a copy of which are attached hereto as Exhibit and is incorporated herein for all purposes. SECTION 3. If any section, article paragraph, sentence, clause, phrase or word in this Resolution, or application thereto to any persons or circumstances, is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Resolution; and the Board hereby declare it would have passed such remaining portions of this Resolution despite such invalidity, which remaining portions shall remain in full force and effect. SECTION 4. This Resolution shall become effective immediately upon passage. PASSED AND APPROVED THIS THE 15TH DAY OF JULY, 2014. Jo McCourry, Mayor ATTEST: istie Wilson, City Secretary OF Thr i.ZP Ae APPROVED AS TO FORM: -Ti�. ExhibitA COLLATERAL ASSIGNMENT OF RIGHTS UNDER DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) THIS COLLATERAL ASSIGNMENT OF RIGHTS UNDER DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) ("Assignment") is entered into as of July G�f , 2014, by and between TP TIF, LLC, a Texas limited liability company ("Assignor"), and WESTERN ALLIANCE BANK, an Arizona corporation ("Lender"). This Assignment is made with respect to the following facts: RECITALS A. Lender is the owner and holder of that certain Promissory Note dated of even date herewith in the original principal amount of up to Fourteen Million and No/100 Dollars ($14,000,000.00) (the "Note"), made by Assignor, as borrower, payable to the order of Lender evidencing a loan (the "Loan") made in accordance with the terms of the Loan Agreement dated of even date herewith between Assignor and Lender (the "Loan Agreement"). Assignor's obligations under the Note and the Loan Agreement are secured by, among other instruments, this Assignment. The Note, the Loan Agreement, this Assignment, and all other documents evidencing and/or securing the indebtedness evidenced by the Note and the other obligations of Assignor as set forth in the Loan Agreement (the "Obligations"), and all past, present or future amendments, modifications, extensions, replacements, or renewals thereof) are hereinafter referred to as the "Loan Documents". Initially capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Loan Agreement. B. The CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas (the "City"), and Wynnwood Peninsula, Ltd., a Texas limited partnership ("Peninsula"), and MSW Wynnwood LLC, a Texas limited liability company ("MSW Wynnwood"), entered into that certain Developer's Agreement between City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated April 19, 2004, and the Economic Development Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated April 19, 2004 attached thereto as Exhibit D (the "Economic Development Agreement"), as amended by (i) that certain Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated March 21, 2006, (ii) that certain Assignment of Developer's Agreement from Peninsula and MSW Wynnwood to Wynnwood Peninsula Venture, a Texas partnership ("WPV"), dated April 10, 2006 (the "Peninsula/MSW Wynnwood Assignment"), (iii) that certain Second Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC dated February 8, 2008, (iv) that certain Third Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC dated July 16, 2008, and (v) that certain Fourth Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula Venture dated April 19, 2012 (collectively, the "Developer's Agreement") relating to the property described therein (the "Property"). WPV assigned its interest in the Developer's Agreement to Assignor pursuant to that certain Assignment of Developer's Agreement and Economic Development Agreement (PD 18) dated as of July /,S , 2014 (the "WPV 19240027.6 Assignment". Neither the Developer's Agreement nor a memorandum thereof has been recorded in the real property records of Denton County, Texas. C. As one of the conditions to agreeing to make the Loan to Assignor, the Lender has required, and Assignor has agreed, to collaterally assign, pledge and grant to Lender a lien on and security interest in all of the right, title and interest of Assignor in and to the obligations of the City to make payments to Assignor pursuant to Section 7(ii) of the Developer's Agreement and Section 111. 2. of the Economic Development Agreement. NOW, THEREFORE, for good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. RECITALS INCORPORATED. The foregoing Recitals are hereby incorporated by this reference into this Assignment as though fully set forth herein. Initially capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement. 2. GRANT OF SECURITY INTEREST. As additional security for the payment and performance of the Loan and the other Obligations of Assignor to Lender, Assignor hereby collaterally assigns, pledges, and grants a security interest in all of Assignor's right, title and interest in and to the obligation of the City to grant to the Assignor a rebate of one hundred percent (100%) of collected City ad valorem taxation of the Property, per the terms of the Economic Development Agreement, during the period specified in the Developer's Agreement, and all other economic incentives and benefits of Assignor under Section 7(ii) of the Developer's Agreement and Section 111. 2. of the Economic Development Agreement, subject to the rights of the City to retain, from amounts collected as ad valorem taxation of the Property, an amount of collected City ad valorem taxation equal to $.25325 per $100.00 property valuation pursuant to Section 8(iii) of the Developer's Agreement and Section IV of the Economic Development Agreement (collectively, the "Tax Sharing Payments") to Lender, and its successors and assigns. Assignor agrees not to further assign or otherwise encumber its interest in the Developer's Agreement or the Tax Sharing Payments so long as this Assignment is in effect. This Assignment shall remain in effect until the Obligations have been repaid in full. 3. REPRESENTATIONS; NO OTHER ASSIGNMENTS. Assignor hereby represents and warrants to the Lender, with the understanding that Lender will rely thereon in making the Loan, that: (a) Assignor has the exclusive and entire claim to the Tax Sharing Payments; (b) Except for the Peninsula/MSW Wynnwood Assignment, the WPV Assignment and this Assignment, there has been no collateral or absolute assignment of the Developer's Agreement or the Tax Sharing Payments; (c) Except as specified above, the Developer's Agreement has not been modified or amended as of the date hereof, (d) Neither Assignor nor the City is in default of its obligations under the Developer's Agreement; 19240027.6 2 (e) The execution, delivery and performance of the Developer's Agreement by Peninsula and MSW Wynnwood was duly authorized by all necessary action on the part of Peninsula and MSW Wynnwood and did not conflict with or result in a violation of the laws of the State of Texas, the County of Denton, Texas, or the City; (f) The Developer's Agreement is in full force and effect and is a legal, valid and binding obligation of the Assignor, enforceable against the Assignor in accordance with its terms; (g) At the date hereof, the Assignor has no counterclaim, right of set-off, defense or like right against the City under the Developer's Agreement; (h) The Developer's Agreement is a contract entered into by the City in consideration for the goods and services to be provided to the City by the Assignor pursuant to the Developer's Agreement, including the construction of the public improvements described in the Developer's Agreement and the conveyance of such public improvements or portions thereof to the City; (i) The execution, delivery and performance of this Assignment by the Assignor has been duly authorized by all necessary action on the part of the Assignor, and does not conflict with or result in a violation of the laws of the State of Texas, the County of Denton, Texas, or the City; 0) This Assignment is a legal, valid and binding obligation of the Assignor, enforceable against the Assignor in accordance with its terms; and (k) At the date hereof, the Assignor has no counterclaim, right of set-off, defense or like right against Lender under this Assignment or any of the other Loan Documents. 4. NO ASSUMPTION. This Assignment is intended to be a collateral assignment not an absolute assignment. Lender shall not be deemed to assume any of Assignor's obligations or duties under or in connection with the Developer's Agreement by virtue of this Assignment, including, without limitation, after any exercise by Lender of its rights and remedies hereunder such as the foreclosure of the security interests granted herein. Assignor shall punctually perform or cause to be performed all covenants and obligations of the "Developer" under the Developer's Agreement. 5. EVENT OF DEFAULT. Without limiting Lender's rights and powers hereunder, from and after the time of the occurrence of an Event of Default, Lender may, in its sole discretion, exercise all rights of Assignor to the Tax Sharing Payments, specifically including the right to retain, use and enjoy the same, or to sell, assign or transfer the same (with appropriate governmental consents, where necessary) in connection with the enforcement of its rights and remedies under the Loan Documents. ASSIGNOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS LENDER AS ITS ATTORNEY-IN-FACT TO DEMAND, RECEIVE AND ENFORCE ASSIGNOR'S RIGHTS WITH RESPECT TO THE TAX SHARING PAYMENTS, TO GIVE APPROPRIATE RECEIPTS, RELEASES AND SATISFACTIONS FOR AND ON BEHALF OF ASSIGNOR AND TO DO ANY AND ALL 19240027.6 3 ACTS IN THE NAME OF ASSIGNOR OR IN THE NAME OF LENDER, WITH THE SAME EFFECT AS IF DONE BY ASSIGNOR HAD THIS ASSIGNMENT NOT BEEN MADE. The foregoing power of attorney is coupled with an interest and is therefore irrevocable until the Obligations are repaid in full. Any such amounts received by Lender under this Paragraph 5 shall be applied to the Obligations. 6. APPLICABLE LAW. This Assignment shall be governed by and interpreted under the laws of the State of Texas (without regard to conflict of laws principles). 7. SUCCESSORS AND ASSIGNS. This Assignment and the rights hereunder are assignable by Lender, in whole or in part, and when so assigned, Assignor shall be bound as above to the transferees to the extent of such assignment. This Assignment shall bind the heirs and personal representatives and successors and assigns, as applicable, of Assignor, and shall inure to the benefit of Lender and its successors and assigns. 8. AMENDMENTS. Neither this Assignment nor any provision hereof may be amended, modified, revoked, waived, discharged or terminated except by an instrument in writing duly signed by or on behalf of Lender and Assignor. So long as the Assignment remains in effect, the Developer's Agreement will not be amended or terminated by Assignor, including as a result of a default by the City under the Developer's Agreement, and Assignor shall not waive compliance by the City with Section 7(ii) of the Developer's Agreement or Section 111. 2. of the Economic Development Agreement, in each case without the prior written consent of Lender, such consent not to be unreasonably withheld or delayed. 9. NO WAIVER; RIGHTS CUMULATIVE. No delay or failure by Lender to exercise any right or remedy against Assignor hereunder or any other Security Document shall be construed as a waiver thereof. All of Lender's rights hereunder, are cumulative and not exclusive. 10. SEVERABILITY. In the event that any right of Lender hereunder shall be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other right granted hereby. 11. MISCELLANEOUS. All words used herein in the singular shall be deemed to have been used in the plural and all words used herein in the plural shall be deemed to have been used in the singular where the context and construction so require. The word "person" as used herein shall include any individual, company, firm, association, partnership, corporation, trust or other legal entity of any kind whatsoever, The item "or" is not exclusive. The use of the pronouns "he," "she," or "it" shall also be deemed to refer to the pronouns This," "her," "they" or "their," as applicable. The section headings in this Assignment are for convenience of reference only and shall not limit or otherwise affect the provisions of this Assignment. 12. FURTHER ASSURANCES. Assignor agrees, at its expense and without expense to Lender, to do such further acts and to execute and deliver such additional documents as Lender from time to time reasonably requires to assure and confirm all the rights of Lender created hereby or intended now or hereafter to be, or to carry out the intention of or facilitate the performance of the terms of this Assignment. 19240027.6 4 13. NOTICES. Any notice, consent, request, demand or other communication required or permitted to be given under this Assignment or any other Loan Document to either Lender or Assignor shall be given to the addresses and in the manner prescribed by the Loan Agreement. 14. COUNTERPARTS. This Assignment may be executed in any number of separate counterparts, each of which when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one of the same instrument. [Signature Page Follows.] 19240027.6 5 IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the date first above written. ASSIGNOR: TP TIF, LLC, a Texas limited liability company By: TP Venture Holdings, LP, a Texas limited partnership, its Manager By: Wynnwood Peninsula Partners GP, LLC, a Texas limited liability company, its General Partner By: Matthews Holdings Southwest Inc., a Texas corporation, its Manager By: Y Name: Nz-T -S4eJc,75 Title:yj LENDER: WESTERN ALLIANCE BANK, an Arizona banking corporation Ey: Name: e lw -- Title: 19240027.6 6 CONSENT TO ASSIGNMENT AND AGREEMENT This Consent to Assignment and Agreement (this "Consent") is made by the CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas (the "City"), for the benefit of WESTERN ALLIANCE BANK, an Arizona corporation ("Lender"). 1. Without prejudice to the City's rights to demand performance of obligations of "Assignor" (as defined in the Assignment, defined below) to the City under the "Developer's Agreement" (as defined in the Assignment), the City hereby consents to (i) the Peninsula/MSW Wynnwood Assignment (as defined in the Assignment), (ii) the WPV Assignment (as defined in the Assignment), and (iii) the collateral assignment, pledge, and grant of a security interest in all right, title and interest of Assignor in and to the obligation of the City to grant to the Assignor a rebate of one hundred percent (100%) of collected City ad valorem taxation of the Property, per the terms of the Economic Development Agreement, during the period specified in the Developer's Agreement, and all other economic incentives and benefits of Assignor under Section 7(ii) of the Developer's Agreement and Section III. 2. of the Economic Development Agreement, subject to the rights of the City to retain, from amounts collected as ad valorem taxation of the Property, an amount of collected City ad valorem taxation equal to $.25325 per $100.00 property valuation pursuant to Section 8(iii) of the Developer's Agreement and Section IV of the Economic Development Agreement (collectively, the "Tax Sharing Payments"), to Lender, and its successors and assigns, all as set forth in that certain Collateral Assignment of Rights Under Developer's Agreement and Economic Development Agreement (PD 18) dated as of ;wT6 15, 2014 (the "Assignment"). -5�ly 2. The City represents and warrants to Lender, with the understanding that Lender will rely thereon in making the Loan to Assignor, that: (a) Except as specified above, the Developer's Agreement has not been modified or amended as of the date hereof, (b) Neither Assignor nor the City is in default of its obligations under the Developer's Agreement; (c) The execution, delivery and performance of the Developer's Agreement by the City was duly authorized by all necessary action on the part of the City and does not conflict with or result in a violation of the laws of the State of Texas, the County of Denton, Texas, or the City; (d) The Developer's Agreement is in full force and effect and is a legal, valid and binding obligation of the City, enforceable against the City in accordance with its terms, including, without limitation, the obligation of the City to make the Tax Sharing Payments to Assignor as provided in the Developer's Agreement; (e) At the date hereof, the City has no counterclaim, right of set-off, defense or like right against Assignor under the Developer's Agreement; 19240027.6 7 (f) The Developer's Agreement is a contract entered into by the City in consideration for the goods and services to be provided to the City by the Assignor pursuant to the Developer's Agreement, including the construction of the Public Improvements (as defined in the Developer's Agreement) and the conveyance of the Public Improvements or portions thereof to the City; (g) The City has not received notice that Assignor has assigned the Developer's Agreement or Assignor's right to receive the Tax Sharing Payments or any other economic incentives or benefits of Assignor under the Developer's Agreement to any person other than Lender; (h) The execution, delivery and performance of this Consent by the City has been duly authorized by all necessary action on the part of the City, including by Resolution 20 ! - 0 1l of the City Council of the City which, among other provisions, ratifies and approves the Peninsula/MSW Wynnwood Assignment, the WPV Assignment and the Assignment, and does not conflict with or result in a violation of the laws of the State of Texas, the County of Denton, Texas, or the City; (i) This Consent is a legal, valid and binding obligation of the City, enforceable against the City in accordance with its terms; and 0) At the date hereof, the City has no counterclaim, right of set-off, defense or like right against Lender under the Assignment or this Consent. 3. So long as the Assignment remains in effect, the Developer's Agreement will not be amended or voluntarily terminated by the City without the prior written consent of Lender, such consent not to be unreasonably withheld or delayed. The City acknowledges and agrees that, so long as the Assignment remains in effect, the remedies provided in Section 29 of the Developer's Agreement are adequate for the realization by the City of the benefits intended to be conferred on the City by the Developer's Agreement. The City shall provide written notice to Lender of any alleged breach by Assignor of its obligations under the Developer's Agreement at the same time notice of such alleged breach is provided to Assignor, by certified mail or overnight delivery service at the following address: Western Alliance Bank, One East Washington Street, 14th Floor, Phoenix, Arizona 85004, Attention: Paul D. Engler. In no event shall the City seek to recapture from Lender any Tax Sharing Payments delivered to Lender pursuant to the Assignment. 4. The City is entering into this Consent in consideration of services to be provided for the benefit of the City by Lender pursuant to the Loan Agreement, which provides for Lender to make and service the Loan to Assignor, the proceeds of which will be used by Assignor to construct the "TIF Projects" (as defined in the Reimbursement Agreement, defined below) and to then convey certain TIF Projects to the City pursuant to the Reimbursement Agreement for Tax Increment Reinvestment Zone Number Two, City of The Colony, Texas dated April 15, 2014, among the City, the Board of Directors of the Reinvestment Zone Number Two, City of The Colony, Texas, and Assignor, as successor by assignment from Tribute Partners, L.P., a Texas limited partnership (the "Reimbursement Agreement"). 19240027.6 8 5. This Consent shall bind and inure to the benefit of the successors, assigns, legal and personal representatives, executors, administrators, heirs and other transferees of the parties hereto. 6. In the event that any right of Lender hereunder shall be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other right granted hereby. 7. This Consent may be executed in any number of separate counterparts, each of which when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one of the same instrument. [Signature Page Follows.] 19240027.6 9 CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas By: t_ G foe Mccouiry, ayor Dated July (. , 2014 ATTEST: I By Christie Wilson, City Secretary APPROVED AS TO FORM 19240027.6 10 IRREVOCABLE PAYMENT INSTRUCTION (PD 18) THIS IRREVOCABLE PAYMENT INSTRUCTION (PD 18) (this "Instruction") is made as of July y 2014, by TP TIF, LLC, a Texas limited liability company (the "Developer"), to the CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas (the "City") for the benefit of WESTERN ALLIANCE BANK, an Arizona corporation (the "Len -der"). RECITALS: WHEREAS, the City and Wynnwood Peninsula, Ltd., a Texas limited partnership, and MSW Wynnwood LLC, a Texas limited liability company, entered into that certain that certain Developer's Agreement between City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated April 19, 2004, and the Economic Development Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated April 19, 2004 attached thereto as Exhibit D (the "Economic Development, Agreement"), as amended by (i) that certain Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated March 21, 2006, (ii) that certain Assignment of Developer's Agreement from Wynnwood Peninsula, Ltd., a Texas limited partnership, and MSW Wynnwood LLC, a Texas limited liability company, to Wynnwood Peninsula Venture, a Texas partnership ("WPV") dated April 10, 2006, (iii) that certain Second Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC dated February 8, 2008, (iv) that certain Third Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC dated July 16, 2008, and (v) that certain Fourth Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula Venture dated April 19, 2012 (collectively, the "Developer's Agreement"). WHEREAS, WPV assigned its interest in the Developer's Agreement to Developer pursuant to that certain Assignment of Developer's Agreement and Economic Development Agreement (PD 18) dated as of July Z5, 2014. WHEREAS, the Lender is making a loan in the amount of up to $14,000,000 (the "Loan") to Developer. WHEREAS, a portion of the collateral securing the repayment of the Loan is a collateral assignment of payments to be made by the City to the Developer pursuant to Section 7(ii) of the Developer's Agreement and Section Ill..2. of the Economic Development Agreement, WHEREAS, the Developer wishes to instruct the City as to where and to whom future payments to the Developer should be made pursuant to pursuant to Section 7(ii) of the Developer's Agreement and Section. 111. 2. of the Economic Development Agreement. 19243286.3 NOW, THEREFORE, in consideration of the premises and promises contained herein and other good and valuable consideration, the receipt and sufficiency is hereby acknowledged, the Developer hereby instructs the City as follows: 1. IRREVOCABLE INSTRUCTION. Notwithstanding any provision of the Developer's Agreement or any other document or instrument to the contrary, the Developer hereby irrevocably instructs the City that all payments due to the Developer pursuant to Section 7(ii) of the Developer's Agreement and Section Iil. 2. of the Economic Development Agreement shall be made to Western Alliance Bank, for deposit to Account No. 8010733635 at the following address: Western Alliance Bank, One East Washington Street, 14th Floor, Phoenix, Arizona 85004, Attention: Paul D. Engler. This instruction is irrevocable and may not be rescinded or modified in any way without the written authorization of both the Lender and the Developer. 2. NOTICES. All notices and communications required or permitted to be given hereunder shall be in writing and hand delivered or mailed by certified or registered mail, postage prepaid, or by Federal Express, or similar overnight delivery service, to the addresses shown below. Such notices and communications shall be deemed given two (2) days after deposit in the United States mail, and if delivered by hand shall be deemed given when delivered. If to Developer, to: With Copy to: TP TIF, LLC c/o Matthews Southwest 1660 South Stemmons Freeway, Suite 100 Lewisville, Texas 75067 Attn: John H. Matthews CDK Realty Advisors, LP 4100 Harry Hines Boulevard, 4th Floor Dallas, Texas 75219 Attention: Brent W. Kroener If to Lender, to: Western Alliance Bank One East Washington Street, 14th Floor Phoenix, Arizona 85004 Attention: Paul D. Engler 14243256.3 2 If to City, to: City of The Colony City Hall 6800 Main Street The Colony, Texas 75056 Attn: City Secretary 3. BINDING EFFECT. This Agreement shall be binding upon, and inure to the benefit of, the City, the Developer, the Lender and their respective successors and assigns. 4. COUNTERPARTS. This Instruction may be executed in any number of separate counterparts, each of which when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one of the same instrument. [SIGNATURE PAGES FOLLOW] 19243286.3 3 The Developer has executed and delivered this Instruction as of the date indicated in the first sentence of this Instruction. DEVELOPER: TP TIF, LLC, a Texas limited liability company By: TP Venture Holdings, LP, a Texas limited partnership, its Manager By: Wynnwood Peninsula Partners GP, LLC, a Texas limited liability company, its General Partner By: Matthews Holdings Southwest Inc., a Texas corporation, its Manager By: Name: A'IA0 _'��Levelzf Title: \/,p 19243286.3 4 The City hereby consents to and agrees to be bound by the payment instructions contained herein. CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas By: Myo e McCo .d By: Dat /d: July 2 2 014 ATTEST: By Christie Wilson, City Secretary APPROVED AS TO FORM 192432863 5 CK -1 Developer's Agreement and Economic Development Agreement (PD 18) Certification Regarding the Employment of Undocumented Workers This certification is made in conjunction with that certain Developer's Agreement between the CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas (the "City") and Wynnwood Peninsula, Ltd., a Texas limited partnership ("Peninsula"), and MSW Wynnwood LLC, a Texas limited liability company ("MSW Wynnwood") dated April 19, 2004, and the Economic Development Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated April 19, 2004 attached thereto as Exhibit D, as amended by (i) that certain Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood LLC dated March 21, 2006, (ii) that certain Assignment of Developer's Agreement from Peninsula and MSW Wynnwood to Wynnwood Peninsula Venture, a Texas partnership ("WPV"), dated April 10, 2006 (the "Peninsula/MSW Wynnwood Assignment"), (iii) that certain Second Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC dated February 8, 2008, (iv) that certain Third Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula, Ltd. and MSW Wynnwood, LLC dated July 16, 2008, and (v) that certain Fourth Amendment to the Developer's Agreement between the City of the Colony and Wynnwood Peninsula Venture dated April 19, 2012 (collectively, the "Developer's Agreement") relating to the property described therein (the "Property"). WPV assigned its interest in the Developer's Agreement to the undersigned, TP TIF, LLC, a Texas limited liability company (the "Assignee") pursuant to that certain Assignment of Developer's Agreement and Economic Development Agreement (PD 18) dated as of July 2014. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignee agrees with the City and certifies to the City, as successor "Developer" under the Developer's Agreement, that: (1) Neither the Assignee, or any branch, division, or department of the Assignee, employs or will knowingly employ undocumented workers. For purposes of this Certification, "undocumented worker" means an individual who, at the time of employment, is not: (A) lawfully admitted for permanent residence to the United State; or (B) authorized under law to be employed in that mariner in the United States. (2) Pursuant to V.T.C.A. Government Code § 2264.053, if, after receiving a Public Subsidy (defined below) provided by the Developer's Agreement, the Assignee or a branch, division, or department of the Assignee, is convicted of a violation under 8 U.S.C. Section 1324a(o, the Assignee shall repay the amount of the Public Subsidy with interest accruing from the date of the violation on which the conviction is based, at the prime rate as published in the Wall Street Journal on the date of the conviction. Repayment shall be made not later than the 120th day after the date the City notifies the Assignee of the violation. As provided by Section 2264.101(c) of the Texas Government Code, the Assignee shall not be liable for a violation by a 19554662 1 subsidiary, affiliate, or franchisee of the Assignee or by a person with whom the Assignee contracts. For purposes of this Certification, "Public Subsidy" means any grants, loans, loan guarantees, benefits relating to an enterprise or empowerment zone, fee waivers or rebates, land price subsidies, infrastructure development and improvements designed to principally benefit a single business or defined group of businesses, matching funds, tax refunds, tax rebates, or tax abatements. (3) The City may rely on this Certification in the awarding of any Public Subsidy pursuant to the Developer's Agreement. Upon the payment and receipt of any Public Subsidy pursuant to the Developer's Agreement, this Certification shall constitute an agreement between the Assignee and the City concerning the terms for repayment of the Public Subsidy pursuant to the provisions of Chapter 2264 of the Texas Government Code. [Signature Page Follows] 19554662 2 Receipt of the forgoing Certification Regarding the Employment of Undocumented Workers dated as of July , 2014 is hereby acknowledged and agreed to: CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas By.; ,/Joe McCdurry, May Dated: July L, 2014 ATTEST: By: Christie Wilson, City Secretary i. r7 t TE 1E A`� APPROVED AS TO FORM 19554662 4 C(4) ASSIGNMENT OF DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) Date: Effective the day of 92014 Developer's Agreement dated April 19, 2004 and Economic Development Agreement dated April 19, 2004 (collectively, as amended, the "Agreements"): City: City of The Colony, a home rule City and political subdivision of the State of Texas Owner: Wynnwood Peninsula, Ltd., a Texas limited partnership; and MSW Wynnwood LLC, a Texas limited liability company Executed on April 19, 2004, and thereafter amended, covering the property described therein (the "Property"), as subsequently assigned by Owner to Wynnwood Peninsula Venture, a Texas joint venture. Assignor: Wynnwood Peninsula Venture, a Texas joint venture Assignee: TP TIF, LLC, a Texas limited liability company For and in consideration of the mutual benefits to be derived herefrom, and for other consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby unconditionally assigns all of its rights under the Agreements to Assignee, and Assignee hereby accepts all of the terms, benefits and obligations of Assignor set forth in the Agreements (subject to the terms below). Assignor hereby agrees to perform, execute, and/or deliver or cause to be performed, executed, and/or delivered any and all such further acts and assurances as Assignee may reasonably require to perfect Assignee's interest in the Agreements. It is specifically agreed that Assignor shall not be responsible for the discharge and performance of any duties or obligations to be performed and/or discharged in connection with the Agreements after the date hereof. It is further agreed that Assignee shall not be responsible for the discharge and performance of any duties or obligations required to be performed and/or discharged in connection with the Agreements prior to the date hereof. This Assignment may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. ASSIGNMENT OF DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) WYNNWOOD PENINSULA VENTURE — TP TIF, LLC 70526,000231 EMF -US 51357530v2 C(4) Executed and effective as of the date first set forth above. ASSIGNOR: WYNNWOOD PENINSULA VENTURE, a Texas joint venture By: MSW Wynnwood Holdings, Ltd., a Texas limited partnership By: MSW Wynnwood Holdings GP, LLC, a Texas limited liability company, its general partner Matt Stevens, Vice President By: MSW Tribute Acquisitions, LLC, a Texas limited liability company By: Matthews Holdings Southwest Inc., a Texas corporation, its sole member and manager By: � <,;i ---- Matt Stevens, Vice President THE STATE OF TEXAS § COUNTY OF AfILJ—Int" § This instrument was acknowledged before me on the day of 2014, by Matt Stevens, the Vice President of each of (i) MSW Wynnwood Holdings GP, LL a Texas limited liability company, the general partner of MSW Wynnwood Holdings, Ltd., a Texas limited partnership, ajoint venturer of Wynnwood Peninsula Venture, a Texas join venture, on behalf of said joint venture and (ii) Matthews Holdings Southwest Inc., a Texas corporation, the sole member and manager of MSW Tribute Acquisitions, LLC, a Texas limited liability company, ajoint venturer of Wynnwood Peninsula Venture, a Texas join venture, p bOialf of said joint venture. Public in and for the State of Texas My Commission Expires: CHRIS11E NEU WILSON My Commission Expires November 22, 2017 OF 2 ASSIGNMENT OF DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) WYNNWOOD PENINSULA VENTURE — TP TIF, LLC 70526.000231 EMF—US 51357530v2 C(4) ASSIGNEE: TP TIF, LLC, a Texas limited liability company By: TP Venture Holdings, LP, a Texas limited partnership, its manager By: Wynnwood Peninsula Partners GP, LLC, a Texas limited liability company, its general partner By: Matthews Holdings Southwest Inc., a Texas corporation, its sole member and manager By: /11112-/t A� Matt Stevens, Vice President THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on the day of 2014, by Matt Stevens, the Vice President of Matthews Holdings Southwest Inc., a Texas corpolation, the sole member and manager of Wynnwood Peninsula Partners GP, LLC, a Texas limited liability company, the general partner of TP Venture Holdings, LP, a Texas limited partnership, the manager of TP TIF, LLC, a Texas limited liability company, on behalf of said limited liability company. ary Public in and for the State of Texas My Commission Expires: z6 jr� CHR19M NW WLWN NoMmMim vember 22, 0101 7 ASSIGNMENT OF DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) WYNNWOOD PENINSULA VENTURE — TP TIF, LLC 70526.000231 EMF -US 51357530v2 C(4) CONSENT TO ASSIGNMENT OF DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) The undersigned ratifies and confirms the Agreements, and all amendments thereto and consents to the above-described assignment from Wynnwood Peninsula Venture to TP TIF, LLC. ATTEST: By: Christie Wilson, City Secretary APPROVED AS TO FORM By: i dmoor', C % ty Attorney CITY OF THE COLONY, a home rule city and political subdivision of the State of Texas organized pursuant to Article XI, Section 5 of the Constitution of the State of Texas By: _?oe McCoArry, Mayor Datd/d: 2014 El ASSIGNMENT OF DEVELOPER'S AGREEMENT AND ECONOMIC DEVELOPMENT AGREEMENT (PD 18) WYNNWOOD PENINSULA VENTURE — TP TIF, LLC 70526.000231 EMF -US 51357530x2