2010-210\\codad\departments\1ega1\our documents\ordinances\iOVed-allegiance 380 amendment. docx
ORDINANCE NO. 2010-210
AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN AMENDMENT
TO AN ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT DATED JUNE
15, 2010 BETWEEN THE CITY OF DENTON AND ALLEGIANCE HILLVIEW,
L.P.,WHICH WAS DULY ASSIGNED, IN PART, TO RED RAYZOR RANCH, LLC; AND
PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute an
Amendment to Economic Development Program Grant Agreement (the "Amendment), in
substantially the form of the Amendment which is attached hereto and made a part of this
ordinance for all purposes.
SECTION 2. The City Manager, or his designee, is authorized to exercise the City of
Denton's rights and duties as set forth in the Amendment.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the (.ZIA day o 52010.
i
(MARK AB G , MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
STATE OF TEXAS
COUNTY OF DENTON
FIRST AMENDMENT TO ECONOMIC DEVELOPMENT PROGRAM GRANT
AGREEMENT WITH ALLEGIANCE HILLVIEW, L.P.
THIS FIRST AMENDMENT TO ECONOMIC DEVELOPMENT PROGRAM
GRANT AGREEMENT WITH ALLEGIANCE HILLVIEW, L.P. (this "Amendment")
made and entered into as of the /I/Wvday of September, 2010, but effective as of July 30, 2010,
by and among ALLEGIANCE HILLVIEW, L.P., a New York limited partnership ("Grantee"),
DB DENTON IT LLC, a Delaware limited liability company ("Assignee"), and the CITY OF
DENTON, TEXAS, a Texas municipal corporation (the "City"), is based upon the following:
A. On June 15, 2010, Grantee and the City entered into a certain Economic
Development Program Grant Agreement with Allegiance Hillview, L.P. (the "Agreement").
B. Pursuant to the terms of that certain Assignment and Assumption Agreement,
dated as of July 30, 2010, between Grantee and Assignee, a fully executed copy of which is
attached to and made a part of this Agreement as Exhibit A (the "Assignment and Assumption
Agreement"), Grantee assigned to Assignee, and Assignee accepted from Grantee, all of
Grantee's right, title and interest in and to the following arising under the Agreement: (i) all
obligations of Grantee with respect to Phase II (as defined in the Agreement) as set forth in the
Agreement, including, but not limited to, those obligations set forth in Section 6 of the
Agreement which are now the sole obligation of Assignee, (ii) the Program Grant for Phase II (as
defined in the Agreement) and (iii) the rights of "Grantee" to payments of the Program Grant for
Phase I (as defined in the Agreement) monthly installment payments pursuant to, in accordance
with and subject to the terms of the last sentence of the first paragraph of Section 5.1 of the
Agreement after Grantee has received Twenty Million and no/100ths Dollars ($20,000,000.00) in
such payments, provided, that the Phase II monthly installment payments have been initiated
(collectively, the "Phase II Rights and Obligations"). In connection therewith and as set forth in
the Assignment and Assumption Agreement, Assignee agreed to (1) be bound by the terms and
conditions of the Agreement as it relates to the Phase II Rights and Obligations, and (2) timely
perform all of the Phase II Rights and Obligations pursuant to and in accordance with the terms,
provisions and conditions of the Agreement.
C. Pursuant to Section 17 of the Agreement, Grantee has the right to be fully and
completely released from all of the Phase II Rights and Obligations as a result of such
assignment and Assignee's agreement to (i) be bound by the terms and conditions of the
Agreement as it relates to the Phase II Rights and Obligations and (ii) timely perform all of the
Phase II Rights and Obligations pursuant to and in accordance with the terms, provisions and
conditions of the Agreement.
D. Grantee and the City desire to amend the Agreement to effectuate the release of
Grantee from the Phase II Rights and Obligations as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Grantee, Assignee and the City agree as follows:
1. Grantee and Assignee represent and warrant to the City that the Assignment and
Assumption Agreement has been fully executed and is in full force and effect.
2. Assignee hereby agrees to (i) be bound by the terms and conditions of the
Agreement as it relates to the Phase II Rights and Obligations, and (ii) timely perform all of the
Phase lI Rights and Obligations pursuant to and in accordance with the terms, provisions and
conditions of the Agreement.
3. Grantee is hereby fully and completely released from all of the Phase II Rights
and Obligations; provided, however, that Grantee is not released from any obligations or
liabilities of Grantee to the City under the Agreement for Phase I (as deemed in the Agreement).
Grantee is not released from any obligations or liabilities of Grantee to the City under the
Agreement for Phase II based solely upon acts or events which occurred prior to the date of the
Assignment and Assumption Agreement.
4. To the extent of any inconsistency between the terms and provisions of this
Amendment and the Agreement, the terms and provisions of this Amendment will control.
Except as amended by this Amendment, all of the terms, covenants and conditions of the
Agreement are in full force and effect and the Agreement is hereby ratified and confirmed.
5. This Amendment will be binding upon and will inure to the benefit of the parties
to this Amendment and their respective successors and permitted assigns.
6. This Amendment may be executed in one or more counterpart copies, all of which
will constitute and be deemed an original, but all of which together will constitute one and the
same instrument binding on Grantee, Assignee and the City. Delivery by facsimile or electronic
mail of this Amendment or an executed counterpart hereof will be deemed a good and valid
execution and delivery hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES APPEAR ON NEXT PAGE.]
2
Grantee, Assignee and the City have executed this First Amendment to Economic
Development Program Grant Agreement with Allegiance Hillview, L.P. on the day and year first
above written.
GRANTEE:
ALLEGIANCE MLLVIEW, L.P.,
a New York limited partnership
By:
TH GP LLC (d/b/a TH Denton GP LLC,
in the State of Texas), a Delaware limited
liability company
Its: General Partnpr
By:
Nar
Its:
ACKNOWLEDGMENT
STATE OF )
iti )
COUNTY OF
This instrument was ACKNOWLEDGED before me on h1 3p 2010, by
A4 aw4,c19~11 , the C • D- 6 of TH GP LLC (d/b/a TH Denton GP LLC, in the State
of Texas), a Delaware limited liability company, the general part r of Allegiance Hillview, L.P.,
a New York limited partnership, on behalf of such limited partriip,
Public
[SEAL]
My Corn issi Expires:
THOMAS SANTORA
Notary Public, State of New York
No.01SA6191079
Qualified in New York County
Commission Expires Aug. 4, 2012
OAKLAND. 1866310.4 3
Printed Name of Notary Public
[SIGNATURE PAGE TO
FIRST AMENDMENT TO ECONOMIC DEVELOPMENT PROGRAM GRANT
AGREEMENT WITH ALLEGIANCE HILLVIEW, L.P.]
ASSIGNEE:
DB DENTON II LLC,
a Delaware limited liability company
By: DB Denton Holdings LLC,
a Delaware limited liability company
Its: Sole Member
By: RED Rayzor Ranch, LLC,
a Delaware limited liability company
Its: Managing Member
By: 01~
Michael Ebert, Its: Manager
STATE OF L- )
r
COUNTY OF
ACKNOWLEDGMENT
This instrument was ACKNOWLEDGED before me on , 2010, by
Michael Ebert, the manager of RED Rayzor Ranch, LLC, a Delaware limited liability company,
the managing member of DB Denton Holdings LLC, a Delaware limited liability company, the
sole member of DB Denton II LLC, a Delaware limited liability company, on behalf of such
limited liability company.
W-Notary RAMONA ZAPUSIAS
Public state of Arizona
Maricopa County
My Commission Expires
February 03, 2013
[SEAL]
My Commission Expires:
Notary Public
Printed Name of Notary Public
OAKLAND.] 866310.4 4
[SIGNATURE PAGE TO
FIRST AMENDMENT TO ECONOMIC DEVELOPMENT PROGRAM GRANT
AGREEMENT WITH ALLEGIANCE HILLVIEW, L.P.]
CITY:
CITY OF DENTO TE
George C. ampbell, City Manager
ACKNOWLEDGMENT
STATE OF TEXAS )
COUNTY OF DENTON )
This instrument was ACKNOWLEDGED before me oA~~~e 2010, by
George C. Campbell, City Manager of the City of Denton, City of
Denton, Texas.
[SEAL]
My Commis ion Expires:
Notary Public
Printed Name of Notary Public
JENNIFER K. WALTERS
Notary Public, State of Texas
' i. = My Commission Expires
N'.
~4r!,~1f OF j
December 19, 2010
~h4una~
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
z
BY:
OAKLAND. 1866310.4
EXHIBIT A
Assignment and Assumption Agreement
[See attached.]
OAKLAND. 1866310.4
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment"), is entered
into as of July 9, 2010 by and between Allegiance Hillview, L.P., a New York limited partnership
("Assignor"), and DB Denton H LLC, a Delaware limited liability company ("Assignee"). Assignor
and Assignee are referred to herein individually as a "Party" and collectively, as the "Parties".
WHEREAS, Assignor has agreed to assign and transfer to Assignee all of Assignor's right, title
and interest in and to the following arising under that certain Economic Development Program Grant
Agreement with Allegiance Hillview, L.P., dated as of June 15, 2010 (the "380 Grant"), by and
between Assignor and the City of Denton, Texas, a Texas municipal corporation (collectively, the
"Phase II Rights and Obligations"): (a) all obligations of Assignor with respect to Phase H as defined
and set forth in the 380 Grant, including, but not limited to, those obligations set forth in Section 6 of
the 380 Grant, which shall be the sole obligation of Assignee, (b) the Program Grant for Phase II as
defined and set forth in the 380 Grant and (c) the rights of "Grantee" to payments of the Program Grant
for Phase I (as defined and set forth in the 380 Grant) monthly installment payments pursuant to, in
accordance with and subject to the terms of the last sentence of the first paragraph of Section 5.1 of the
380 Grant after Assignor has received Twenty Million and no/100ths ($20,000,000.00) in such
payments, provided, that the Phase II monthly installment payments have been initiated; and
WHEREAS, Assignor desires to assign to Assignee, and Assignee desires to accept from
Assignor and assume, all of the Phase II Rights and Obligations upon the terms and conditions set forth
in this Assignment and the 380 Grant.
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged,
Assignor and Assignee hereby agree as follows:
1. Assignor hereby conveys, transfers and assigns to Assignee all of the right, title and
interest of Assignor in and to the Phase II Rights and Obligations.
2. Assignee hereby accepts the assignment, transfer and conveyance of all the right, title
and interest of Assignor in and to the Phase II Rights and Obligations, and Assignee assumes,
undertakes and agrees to (a) be bound by the terms and conditions of the 380 Grant as it relates to the
Phase II Rights and Obligations, and (b) timely perform all of the Phase H Rights and Obligations
pursuant to and in accordance with the terms, provisions and conditions of the 380 Grant.
3. Assignor shall indemnify, defend, and hold Assignee harmless from and against any and
all claims, judgments, liabilities, damages, injuries, losses, costs, and expenses whatsoever (including
reasonable attorneys' fees and disbursements) which Assignee may incur, or which may be claimed
against Assignee, by reason of (a) any breach or alleged breach of any of the Phase II Rights and
Obligations occurring prior to the date hereof, and/or (b) any obligation owed by, or any liability
incurred by, Assignor with respect to any of the Phase If Rights and Obligations accruing, or arising
out of actions which occur, prior to the date hereof. Assignee shall indemnify, defend, and hold
Assignor harmless from and against any and all claims, judgments, liabilities, damages, injuries,
losses, costs, and expenses whatsoever (including reasonable attorneys' fees and disbursements) which
Assignor may incur, or which may be claimed against Assignor, by reason of (i) any breach or alleged
breach of any of the Phase II Rights and Obligations occurring from and after the date hereof, and/or
(ii) any obligation owed by, or any liability incurred by, Assignee with respect to any of the Phase II
Rights and Obligations accruing, or arising out of actions which occur, from and after the date hereof.
OAKLAND. 1868952.7
4. Nothing in this Assignment, express or implied, is intended or will be construed to
expand or defeat, impair or limit in any way the rights, obligations, claims or remedies of the Parties at
law or in equity.
5. Nothing in this Assignment, express or implied, is intended or will be construed to
confer upon, or give to, any person, other than Assignor and Assignee, any rights, remedies,
obligations or liabilities.
6. This Assignment inures to the benefit of and is binding upon Assignor and Assignee
and their respective successors and assigns. From and after the date of this Assignment, (a) Assignor
agrees that Assignor will not modify or amend, nor take any action to modify or amend, the 380 Grant
with respect to any of the Phase II Rights and Obligations and (b) Assignee agrees that Assignee will
not modify or amend, nor take any action to modify or amend, the 380 Grant with respect to Phase I
(as defined and set forth in the 380 Grant) or the Program Grant for Phase I (as defined and set forth in
the 380 Grant).
7. Assignor and Assignee hereby agree to execute any additional documents or
instruments as the other may reasonably request to carry out or give effect to this Assignment. In such
regard, Assignor and Assignee acknowledge and agree that as soon as reasonably practicable after the
date of this Assignment they will submit to the City of Denton, Texas (the "QLty") a signed original
First Amendment to Economic Development Program Grant Agreement with Allegiance Hillview,
L.P. in form and content attached to and made a part of this Assignment as Exhibit A (the
"Amendment") in order to have Assignor released from all of the Phase II Rights and Obligations
under the 380 Grant pursuant to the terms of Section 17 of the 380 Grant. Assignor and Assignee will
each use their commercially reasonable efforts to have the City execute the Amendment as soon as
reasonably practicable after the date of this Assignment.
8. This Assignment may be executed in one or more counterparts, each of which will be
deemed to be an original, but all of which together shall constitute one and the same instrument.
9. A signature to this Assignment delivered by telecopy or other electronic means will be
deemed valid and as effective as delivery in person.
10. This Assignment shall be governed by and construed in accordance with the laws of the
State of Texas.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES APPEAR ON NEXT PAGE.]
OAKLAND.] 868952.7 2
Each of the Parties has caused this Assignment and Assumption Agreement to be duly
executed and delivered by its duly authorized representative as of the date first written above.
ASSIGNOR:
ALLEGIANCE HILLVIEW, L.P.,
a New York limited partnership
By: TH GP LLC (d/b/a TH Denton GP LLC,
in the State of Texas), a Delaware limited
liability company
Its: General Partner
By: _
Name:
Its:
OPERATING OFFICER
OAKLAND. 1868952.7
[SIGNATURE PAGE TO ASSIGNMENT
AND ASSUMPTION AGREEMENT BY AND BETWEEN
ALLEGIANCE HILLVIEW, L.P. AND
DB DENTON II LLC]
ASSIGNEE:
DB DENTON II LLC,
a Delaware limited liability company
By: DB Denton Holdings LLC,
a Delaware limited liability company
Its: Sole Member
By: RED Rayzor Ranch, LLC,
a Delaware limited liability company
Its: Managing Member
By:
Michael Ebert
Its: Manager
{W0199362.DOC;}
0AKLAND.1868952.7
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