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HomeMy WebLinkAboutOrdinance No. 03-1488 CITY OF THE COLONY, TEXAS ORDINANCE NO. 03 ~ 14 ~ AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH TEXRON FINANCIAL CORPORATION REGARDING THE GROUND LEASE FOR THE TRIBUTE GOLF COURSE; ATTACHING THE APPROVED AGREEMENT AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the City Manager of the City of The Colony, Texas is hereby authorized to execute on behalf of the City an agreement with Textron Financial Corporation regarding the ground lease for the Tribute Golf Course; the approved agreement is attached hereto as Exhibit "A", and made a part hereof for such purposes. SECTION 2. This Ordinance shall take effect immediately fi.om and after its passage by the City Council of the City o£The Colony, Texas. DULY PASSED AND APPROVED by the City Council of the City of The Colony, Texas this 15thday o£September, 2003. _ APPROVED: ~ JOin Dillard, Mayor ATTEST: Patti A. Hicks, City Secretary APP~ORM: City Attorney- J AGREEMENT REGARDING GROUND LEASE T. HIS AG,RE_.EMENT REG,~Q. ARDING GROUND LEASE (this "Agreement") is made and executed this .,~ day of ~)~O'U~, , 2003, by THE CITY OF THE COLONY, TEXAS ("Landlord"), in favor of' TEXTRON FINANCIAL CORPORATION, a Delaware corporation ("Lender"); RECITALS: A. Landlord is the owner of a leasehold interest in and to the real property in Denton County, Texas, which is described on Exhibit "A" attached hereto and made a part hereof for all purposes (the "Premises"). Landlord's leasehold interest in the Premises is derived from a certain Lease (the "Prime Lease") dated October 9, 1997, by and between the Secretary of the Army (the "Prime Landlord") and Landlord. B. Pursuant to a certain Ground Lease Agreement (the "Lease") dated July 21, 1997, Landlord leased the Property to Wynnwood Peninsula, L.P., a Texas limited partnership ("WP"). WP thereafter assigned its rights under the Lease to Wyunwood Army, LLC ("Tenant") pursuant to that First Amendment to Ground Lease Agreement between Landlord, WP, and Tenant dated" July 20, 1998. Tenant has subleased a portion of the Premises described in Exhibit "B" attached hereto and incorporated herein (the "Golf Course Premises") to Wynnwood Peninsula Golf, LLC CWynnwood") pursuant to a certain Sublease Agreement dated August 7, 1998 (the "Sublease"). Whenever the term "Lease" is used hereinafter, the same shall mean and include the Lease only as it applies to the Golf Course Premises and no other real property. C. Wyrmwood has requested that Lender advance a loan in the principal amount of $5,000,000.00 to Wynnwood (the "Loan"). The Loan will be secured in part, by the lien and provisions of a certain deed of trust (the "Deed of Trust"), covering, among other things, all of Tenant's right, title and interest under the Lease to the extent of the Golf Course Premises only and all of Wynnwood's rights under the Sublease. The collateral covered by the Deed of Trust is collectively called the "Mortgaged Property." The Deed of Trust and all of the other documents and instruments which evidence or secure the Loan are sometimes collectively called the "Loan Documents". D. The proceeds of the Loan will be used by Wynnwood to refinance the loan made in 1998 for the construction of an eighteen (18) hole golf course and related amenities on the Golf Course Premises (collectively, the "Golf Course"). E. As a condition to Lender's agreement to advance the Loan to Wynnwood, and as a material inducement to Lender to do so, Lender has required that Wynnwood obtain this Agreement for the benefit of Lender. NOW, THEREFORE, for and in consideration of the stun of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, Landlord hereby agrees as follows: DALLAS4 633998v2 11288-00111 1. Default by Tenant. Landlord hereby agrees to deliver written notice to Lender of any default by Tenant under the Lease simultaneously with the giving of such notice to Tenant, which written notice shall specifically describe each alleged default of Tenant. Following Lender's receipt of any such notice, Lender shall have the right, but shall not be obligated, to cure any such default of Tenant as follows: (a) within twenty (20) days after Lender's receipt of a written default notice from Landlord in the event the alleged default is a failure by Tenant to pay any of its monetary obligations under the Lease attributable to the Golf Course; or (b) within thirty (30) days after Lender's receipt of a written default notice from Landlord in the event the alleged default is not a failure by Tenant to pay any of its monetary obligations under the Lease; provided, however, that in the case of any nonmonetary default attributable to the Golf Course which cannot with diligence be cured within the said 30 day period, if within such 30 day period Lender provides Landlord written notice of the curative measures which it proposes to undertake and proceeds promptly to initiate such measures to cure such default, and thereafter prosecutes the curing of such default with diligence and continuity, the time within which such failure may be cured shall be extended for such period as may be necessary to complete the- curing of such default with diligence and continuity, not to exceed 120 days following the receipt by Lender ora written notice of said default. 2. Acquisition of Property by Lender. If Lender succeeds to the interest of Tenant in and to the Lease by means of foreclosure under the Deed of Trust, by means of a transfer in lieu of such foreclosure, or by any other means due to the failure or inability of Tenant to pay the indebtedness secured by the Deed of Trust or to perform any of its obligations under the Loan Documents, Landlord shall hereafter accept, recognize and treat Lender as the tenant under the Lease, and Landlord shall continue to perform all of its obligations under the Lease attributable to the Golf Course only. Lender may thereafter, with the consent of Landlord, sell, convey, assign, transfer or sublet, in whole or in part, its right, title and interest in and to the Lease. 3. Representations by Landlord. Landlord hereby represents and warrants the following to Lender: (a) Landlord acknowledges the Loan; (b~ Landlord acknowledges that the Golf Course has been constructed in accordance with the plans and specifications previously approved by Landlord; (c) Landlord acknowledges that the Golf Course is being operated by American Golf Corporation in accordance with the operational standards established by the Lease; (d) Neither the Lease nor the Prime Lease have been modified, altered or amended except as described herein, and the Lease and the Prime Lease are each in fi~ll force and effect; 2 DALLAS4 633998v2 11288-001 I I (e) Landlord has not received any notice of default from the Prime Landlord under the Prime Lease; (0 Tenant is not in default of any of its obligations under the Lease and no events have occurred which, with notice, the passage of time or both, would constitute a default in any of Tenant's obligations trader the Lease; (g) Except as described herein, Landlord has no knowledge of any prior assignment or pledge of Tenant's interest in the Lease; (h) Landlord has not mortgaged or otherwise encumbered its interest in the Premises; (i) To the best of Landlord's knowledge, Landlord has no current right to terminate the Lease based on any acts or omissions of Tenant as of the date hereof; (j) Landlord has all requisite power and authority to execute and deliver this Agreement; and (k) To the best of Landlord's knowledge, the Lease has been approved by the" Prime Landlord. 4. Covenants and Agreements by Landlord. Landlord hereby covenants to and agrees with and for the benefit of Lender as follows: (a) The Lease shall not be amended or modified after the date hereof without Lender's prior written consent, which consent shall not be unreasonably withheld; (b) Landlord will not amend or modify or agree to terminate the Prime Lease without Lender's prior written consent, which consent shall not be unreasonably withheld; (c) Landlord shall not mortgage or encumber the Golf Course Premises or any of its interests therein without Lender's prior written consent (which consent shall not be unreasonably withheld), except for mortgages and other encumbrances which are subject and subordinate in the Deed of Trust; (d) In the event of any termination of the Lease (including, without limitation, any termination pursuant to the Federal Bankruptcy Code), (i) Lender shall have the right to require that Landlord enter into a new lease agreement with Lender within forty-five (45) days after the date on which Lender receives written notice of the termination of the Lease, and (ii) subject to the approval of the Prime Landlord, Landlord and Lender shall enter into such new lease agreement on the same terms and conditions as the Lease, as modified by this Agreement, within thirty (30) days after Landlord receives Lender's request; 3 DALLAS4 633998v2 11288-00111 (e) Landlord shall deliver to Lender copies of any and all notices received by Landlord that Landlord is in default under the terms of the Prime Lease or that the Prime Lease has been or will be terminated, within 15 days of Landlord's receipt of such notice. 5. Subordination of Lien. Landlord hereby subordinates, for the term of the Loan, all liens and security interests of every kind against the inventory, furniture, fixtures and equipment located on the Premises ("Personalty"), including but not limited to, the lien and security interest described in Section 4.03 of the Lease to the liens and security interests of Lender in the Personalty. Lender shall have the fight to remove the Personalty from the Premises only during the tem of the Lease and for a period of sixty (60) days after Landlord has given written notice to Lender that the Lease has been terminated. If Lender undertakes such removal, Lender shall be obligated to repair, at Lender's expense, any damage to the Premises caused by the removal of any Personalty. If Lender fails to remove such Personalty during the term of the Lease or within sixty (60) days after receiving written notice from Landlord of the termination of the Lease, such Personalty shall be deemed to have been abandoned by such Lender. 6. Notice of Leasehold Deed of Trust. This Agreement shall constitute notice to Landlord of the Deed of Trust. Lender's address for notice is as set forth below. .. 7. Notices. All notices given under this Agreement (and under the Lease to Lender) shall be in writing and shall be given in accordance with the requirements of Section 30.01 of the Lease. The respective addresses for Landlord and Lender are as follows: Landlord: The City of the Colony, Texas 5151 North Colony Boulevard The Colony, Texas 75056-0008 Attn: City Manager Lender: Textron Financial Corporation 11575 Great Oaks Way, Suite 210 Alpharetta, Georgia 30022 Attn: President - Golf Finance The address to which any notice or other writing must be sent to either party hereto may be changed upon wri_tten notice given by such party as provided in the Lease. 8. Conflict. In the event of any conflict between the terms of this Agreement and any of the terms of the Lease, the terms of this Agreement shall govern and control. 9. Further Acts. Landlord agrees to execute and deliver to Lender from time to time such reasonable certifications as Lender may request with respect to the performance by Landlord and Terms of their respective obligations under the Lease. In addition, Landlord agrees to execute and deliver to Lender from time to time such other reasonable documents and instruments as may be requested in order to effectuate the terms of this Agreement. 4 DALLAS4 633998v2 11288-00111 LANDLORD: The City of The Colony, Texas By: '~/ ~' ~- (~1,,~¢-~ ~!,c~,. LENDER: TEXTRON FINANCIAL CORPORATION DALLAS4 633998v2 11288-001 STATE OF TEXAS § COUNTY OF DENTON § ~ This instrument was acknowledged before me on .... ~zb ' .5~ "" ~--'J-)~q'~ C~'L~P~-~Prt~A"MaO~°ftheCity°f~'heCol~nn7 Z~x '" ' city oi! ne uolony, Texas. 6,¥t/  UNDER MY HAND AND SEAL OF OFFICE, this the //~'~77'day of -- ,2003. ;-~:'. ~'.:~E h'otaryPUblic Sta NO,AR/PUBLIC, State of Texas Printed Name of Notary My Commission Expires: [/* .~Z~ -o ~'~ ' STATE OF GEORGIA § COUNTY OF. :d.~ Z. ~'OVVr § BEFORE ME, the undersigned, a Not.ary Public in and fo[ t~said C. gunty and Stat.e, on this day personally appeared ~.~/ ~', )4//~/_.¢~.z .E~'~, of TEXTRON FINANCIAL CORPORATION, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in the capacity therein stated, as the act of the corporation for the purposes and consideration therein expressed.  ~ER MY HAND AND SEAL OF OFFICE, this the /o°~ day of ,2003. ~.,_:~ o~O. ~t~.~_ ta -'~. 14 --~ - , Georgia k.~.l.~.. ~t~,. P.nt~d Name of Notary 'lll'lllll~t~* My Commission Expires: DALLAS4 633998v2 11288-00111 6