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Ordinance No. 12,305NC-1). 12,305 A"N OF "T'HE- CYYY COUNCIL, OFTHE CFFY OF BAYTOWN, I 'LEXAS, ALY-1 "I 10FUZINO ANE) DIREC"I"ING CITY MANAOER, TO EXECUTE NND THE CI FY IX) '1'0 TFIF' COL.J.-ATE"RAI, ASSIONMEN"l- OF CON-FRAC-I' TUCTIVI'S Bl--'TWEEN A-S 115 BSI -I 146-11-1 10, I—I" A'NO CC. MPA.SS BANK.; AN ID F"RC-)VIDINO FC,�)R EFFE-CTIV17-- DA-F"I"-,''T'l I ERl,1'4C,:)]-,. 4 *: * -4, » * zje * ors * �Je * * * .8r * wV. q * * * * * * * * Jc :J, * * * :* *,. 4.. '1. * * * * * q * * * * aJ< 4c * 4 * * * oJa *e. * spa 'j, * * * * 4, -*c * * * * * -* * * * * -* I, Ic -* UJI-I" Yf' ORL)AFNUID B'Y 'FIIE CI'FV COUNCIL "F CITY CIF BAYTOWN, -FFIXAS: Section 1: That the City C.],ouncil of the City of Baytown hereby aL.Ith0I-iZCS and directs the •ity Manager to execute and the City Clerk- to attest to the Collateral Assigrinlent OF Contract R-ights between a-S 115 S-3'11 146-11-1 10, I-P., and Cornpass 13ank. A copy of the assignment is attached hereto, rnarked F'I-xhibit "A," and unade a j-,)art hereof f=or all intents and pUrposes. Section 2: 'I"llis k-)I-diriance shall take eft'ect in-n-nediately the City council of- the City c-)rrILIytk-)Wn. Y lN'l'a0DLJCl--'13, READ and PASSF - �D by the al'firrnat City c-)('13avtown dais the 25r1' day cat -July, 2013- ,N -TTFIST: �o L, ETI C I A 13 R Y c I k AS -Y0 17OP-N/I: r1ley 16491 R ',Karcn\FiIeS\CiEy If—JItS and after its passage by Of' the City COL11-ICH Of the C,/%,P-L,(DS, Mayor M WAV 8111 , COLLATERAL ASSIGNMENT CAF CONT RACT RIGHTS (ECONOMIC DEVELOPMENT AGREEMENT with CITY OF BAYTOWN) THIS COLLATERAL ASSIGNMENT OF CONTRACT RIGHTS, made as of the day of —, 2013, by and between A-S 115 SH 146-11-1 10, L.P.,aTexas limited partnership ("Borrower"), and COMPASS BANK, an Alabama banking corporation ("Lender"). W ITN E S S FIJI: L-1 — — In consideration of the mutual covenants and agreements herein contained, Lender and Borrower agree as follows: 1. Definitions. The terms defined in the Loan Agreement shall have their respective defined meanings when used herein and in addition to such terms and the defined terms set forth elsewhere herein, the following terms shall mean: (a) "Note" shall mean and refer to that certain Promissory Note (Revolving Floating Rate) of even date herewith exeCLIted by Borrower and payable to the order of Lender in the stated principal amount of up to $9,572,997.00 and all extensions, renewals and rearrangements thereof. (b) "Assigned Contract" shall mean that certain ECONOMIC DEVELOPMENT AGREEMENT dated August 14, 201.2, between the CITY OF BAYTOWN, as Texas horne-rule municipal corporation ("City") and Chambers Town Center, Ltd., a Texas limited partnership (as the "Developer" therein), the rights, title and interests (including without limitation, reimbursements, distributions and proceeds) of the Developer therein having been assigned to Borrower, and which agreement has been amended by City and Borrower as set forth in the FIRST' AMENDMENT TO T HE ECONOMIC DEVELOPMENT AGREEMENT" dated June 1'9, 201 (a copy of'such agreement as amended is attached hereto), (e) "Event of Default" shall mean any of the events specified in the section entitled "Evews ql'Defaull "in the Loan Agreement. (d) "Loan Agreement" shall mean and ret'er to that certain Loan Agreement of even date herewith executed by and between Borrower and Lender, as same may hereafter be modified or amended from time to time, (e) "Deed 01"frUSt" shall mean and refer to that certain Deed of'Trust, Security Agreement - 1",inancing Statement, and Assignment of Leases and Rents of even date herewith eXeCLIted by Borrower and payable to the order of Lender in 2. Assignment. Borrower hereby assigns, transfers and sets over unto Lender, and grants to Lender as first lien upon and security interest in, as collateral security for the payment and performance of all of the obligations of Borrower under the Note and the Loan Documents (the "Obligations"), subject to the provisions. in this Agreement all of Borrower's right, title and interest, powers, privileges, and right to make all Nvaivers and agreements, to give all notices, consents and 402052 000591 HOUSTON 7322251 releases, to take all action upon the happening of any default giving rise to as right in favor of Bon-ower under the Assigned Contract, and to do any and all other things whatsoever which Borrower is or may become entitled to do under the Assigned Contract. 3. No Liability of the Lender. This Agreement is executed only as security for the Obligations and, therefore, the execution and delivery of this Agreement shall not Subject Lender to, or in any way affect or modify, the liability of Borrower under the Assigned Contract, it being understood and agreed that notwithstanding this Agreement or any subsequent assignment, all of the obligations of Borrower to each and every other party under the Assigned Contract shall be and remain enforceable by such other party, its successors and assigns, against, but only against, Borrower or Pei-sons other than Lender and its Successors and assigns,. 4. Covenants of the Borrower. To protect the security afforded by this Agreement, Borrower covenants and agrees as follows: (a) Borrower will comply with, perforni and discharge each and every obligation, covenant, condition, duty and agreement which the Assigned Contract Provides is to be Performed by Borrower, noncompliance with which could have a material adverse effect on Borrower or Could adversely affect the security provided hereby, (b) Subject to the provisions of this subparagraph, without the prior written consent of Lender, Borrower will not Waive, excuse, condone, forgive or in any manner release or discharge any other party to the Assigned Contract ftorn the obligations., covenants, conditions, and duties and agreements contained in the Assigned Contract, or amend, modify or otherwise change or terminate the Assigned Contract, if the consequences of any of the foregoing acts would be to materially adversely affect, Borrower's conditions, financial or otherwise, or to adversely affect the security provided hereby. Non-inaterial change orders or similar modifications entered into in the ordinary course of construction of the project (as described in the Assigned Contract) that do not result in an increase in the cost of construction do not require the consent of Lender. Non-material change orders or similar modifications entered into in the ordinary course of. construction of the pro.ject (as described in the Assigned Contract) that do not result in an increase in the cost of construction do not require the consent of Lender, (c) At its sole cost and expense, Borrower will exercise promptly and diligently each and every material right it may have under the Assigned Contract and will appear in and defend any action or proceeding arising under, growing out of' or in any manner connected with the obligations, covenants, conditions, duties, agreements or liabilities of Borrower under the Assigned Contract, (d) Should Borrower fail to make any Payment, do any act or refrain from any act which this Agreement requires Borrower to make, do or reftain from, respectively, then Lender may, but shall have no obligation to (and shall not thereby release Borrower from any obligations hereunder), make, do or prevent the same in such manner and to such extent as Lender may reasonably deern necessary or advisable to protect the security provided hereby, which rights of Lender shall specifically include, without limiting Lender's general powers herein granted, the right to appear in and defend any action or proceeding purporting to affect the security hereof car the rights or powers of Lender hereunder; and in exercising any such powers, Lender may pay necessary or advisable costs and expenses,, employ counsel and incur and pay reasonable attorneys' fees, and Borrower will reimburse Lender for Such Costs, expenses and fees on demand therefor, together with interest thereon from the date of'demand until paid at the rate prescribed in the Note, and until SO paid Such costs, expenses and fees shall constitute Obligations secured hereby. 5. l'urther Assurances. Borrower will, from time to time, do and perform any other act or acts and will execute, acknowledge, deliver and file, register, record and deposit (and will refile, re-register, rerecord and redeposit whenever required) any and all further instruments required by law or reasonably requested by Lender in order to confirm, or furthcr assure, the interests of (.fender hereunder, G. Notices of Defaults. Borrower shall cause a copy of each and every notice or communication received front any one or more of the other parties to the Assigned Contract, notifying Borrower of any termination, cancellation of expiration of, or default, event ot'default, breach or other violation Linder the Assigned Contract, to be promptly delivered to Lender in the manner and at the place provided for in the Loan Agreement for the giving of notices and communications thereunder, or at such other address or in Such othcr manner as t.,crider shall designate Linder the Loan Agreement. 7. Exercise of Rights by the Lender; Termination. So long as no Event of'Default shall have Occurred under the Loan Agreement (and after the expiration of any right to cure such Event of Default provided for in the Loan Agreeirient) and Borrower shall not be in default of any of its obli- gations, agreements or duties hereunder, Borrower shall be entitled to exercise all rights of Borrower tinder the .ssigned Contract and Lender will riot exercise or enforce, or seek to exercise or enforce, or avail itself of, any of the rights, powers, privileges, authorizations or benelits assigned and transferred to Lender by Borrower, Linder, pursuant to or by this Agreement. This Assignment of Contract Rights is executed as additional security for the payment ol'all sums clue and owing under the Note and the Loan Agreement executed and for the performance ofall obligations of Borrower Linder the Note, file Loan Agreement and all other Loan Documents executed in connection therewith and it is expressly stipulated, covenanted and agreed that foreclosure under the Deed of Trust shall operate to foreclose Fully the rights of Borrower Linder the Assigned Contract, and in such event all rights of Borrower under the Assigned Contract shall be vested ill the Successful bidder at such foreclosure. After the full discharge and satisfaction of each and every one of the Obligations and the release of the Deed of Trust by Lender, this Agreement and all rights herein assigned to Lender shall terminate, and all estate, right, title and interest of Lender ill and to the Assigned Contract shall revert to Borrower. 8, Remedies. Upon the occurrence of in Event ofDel'aUlt, Lender, in addition to all.)' other rig hts and remedies provided for in this Agreement, shall have all the rights and reniedies of secured party under the Uniform Commercial Code ol"Texas, and Lender shall be entitled to avail itself of all such other rights and remedies as may now or hereafter exist Lit law or in equity for the collection of the Obligations, and the foreclosure of the security interest created hereby and the resort to all), remedy provided heretti-ider or provided by the Uniform Corrimercial Code ofTexas, or by any other law of Texas, shall not prevent the concurrent employment of any other appropriate remedy or remedies, 492052 000591 HOUSTON 7322251 91. Miscellaneous. (a) This Agreement shal I inure to the benefit of and be binding upon, the heirs, legal representatives, successors and assigns of"the parties hereto; provided, however, that Borrower may not assign or delegate his obligations under this Agreement without the prior written consent of' Lender, and any purported assignment or delegation without such consent shall be void. (b) This Agreement shall be governed by, and construed and eril'orced in accordance with, the laws of the State of Texas. (c) 'I I his Agreement is Subject to modification only by a writing signed by the parties. (d) No course of' dealing between Borrower and Lender, nor any ftailUre to exercise, nor any delay in exercising, on the part of Lender, any right, power or privilege hereunder or under the Loan Agreement or any of the other Loan Documents shall operate as a waiver thereof, nor shall any single or )artial exercise of the right, I , power or privilege hereunder or thereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement and in the Loan Agreement, the other Loan Documents, or by law shall be cumulative and rnay be exercised singly or concurrently. (c) 'I"his Agreement may be executed in any number Of counterparts, all of which taken together will constitute one agreement. ( f) The provisions o f th i s Agreement are severable, and i fa n y clause or p ro v i s i o I I shall be held invalid 01- Ullenforceable in whole or in part in anyjurisdiction, then Such invalidity or unenforceability shall of only such clause or provision, or part thereof, in such jurisdiction and shall not in any manner affect Such Clause or provision in any other jurisdiction or any other clause or provision of this Agreement in an), jurisdiction. (g) B,orrowerAgreernent to Terms of City Consent. Borrower understands and agrees that the City has agreed in its consent hereto as follows: (i) upon receipt of written notice from Lender, City agrees to accept performance from Lender of Developer's obligations under the Agreement and City agrees to perform and pay to or for the benefit offender the obligations of City thereunder, including without limitation payment of the Economic Development Grant and City Payment described therein (this provision shall apply even if City receives a contradictory notice or claim from Developer); (ii) City ftirther agrees to provide to Lender a copy of all written notices given to Developer under said Agreement by the City. Borrower hereby waives any and all claims against City for acting in accordance with the foregoing provisions and agrees that any and all claims it may have based on compliance by the City with such provisions, even if based on an erroneous Or wrongful assertion ot'rights by Lender, will be asserted solely against. Lender, and will in no event be asserted against City. 402052 004 591 HOUSTON 7322251 SICINATURE PAGE TO COLLATERAL ASSIGNMENT OF CONTRAC] I RIGHTS (PRECONSTRUCTION AGREEMENT WITH CHAMBERS COUNTY MUNICIPAL UTILITY D1sTRicT NO. 1) EXECUTED to be effective as ofthe day and year first above: written. BORROWER: A.-S H 5 SI-1 146-11-1 10, L.P., aTexas I irnited partnership By: A-S 115, L.C., aTexas limited liability company, its General Partner By: THE STATE OFTEXAS COUNTY OF HARRIS Narrie: Steven D. Alvis Title: Manager This instrument was acknowledged before me on July _, 2013 by Steven D. Alvis, Manager of A-S 115, I..C., a Texas limited liability company, on behalf of said limited liability company, in its capacity as General Partner of A-S 115 SH 146-11-1 10, f-P., aTexas limited partnership, on behalf of said limited partnership. Notary Public, State of Texas (printed rare) My commission expires: SIGNA-rLJRE PAGE CONSENT TO COLLATERAL ASSIGNMENT OF CONTRACT RIGHTS (ECONOMIC DEVELOPMENT AGREEMENT with CITY OF BAYTOWN) The undersigned CITY OF BAYTOWN, a'1'exas home -1111C n-lunicipal corporation ("City") hereby consents to the collateral assignt-rient of the rights, title and interests (including without limitation, reimbursements, distributions and proceeds) of A-S 115 SFJ 146-11-1 10, L.P., a'-Fexas limited partnership and its predecessor in interest Chambers `town Center, Ltd. (" "Developer ") under and pursuant to that certain ECONOMIC DEVELOPMENT AGREEMENT dated August 14, 2012, between the City and Developer ("Agree rn ent "), to COMPASS BANK, an Alabama banking corporation ("'Lender") and states that to the current knowledge of the undersigned, there is no default by the undersigned or by Developer under- said Agreerrient, and City agrees to the following, which have been also been agreed to by Borrower Pursuant to paragraph 9(g) of the COLLATERAL ASSIGNMENT OF CONTRACT RIGHTS to which this consent is attached: (i) upon receipt of written notice from Lender., City agrees to accept pert`ormance from Lender of Developer's obligations under the Agreement and City agrees to perform and pay to or for the benefit of Lender the obligations of City thereunder, including without limitation payment of the Economic Development Grant and City Payment described therein (this provision shall apply even if City receives a contradictory notice or claim from Developer); (ii) City rLirther agrees to provide to Lender a copy of all written notices given to Developer under said Agreement by the Undersigned, at Lender's address as follows: COMPASS 13AN1 2200 Post Oak Blvd 20th Floor Houston, TX 77056 Attention: Commercial Real E.",state [,ending — Brock TMI(enhalin EXECUTED to be effective as of ,2013 CITY OF BAYTOWN, a'l'exas home -rule municipal corporation By: Name: 'Title: By: 'ritte. CONSENT PAGE THE S'f ATE OFTEXAS COUN'T'Y Of-HARRIS 'rhis instrument was acknowledged bel01'e Ille oil --- -, 2013 by I the ol'CITY OF BAYTOWN, a'rexas i,ome- rule municipal corporation, on beliall'of said municipal corporation. Notaiy Public, State of Texas (printed name) My commission expires: