HomeMy WebLinkAboutResolution No. 07-073
RESOLUTION NO. 07-JlJ..3
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY,
TEXAS, APPROVING THE GROUND LESSOR'S ESTOPPEL CERTIFICATE
BY AND BETWEEN THE CNL INCOME COLONY, LP, c/o CNL INCOME
PROPERTIES, INC. AND THE CITY OF THE COLONY, WHICH IS
ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A";
AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 1
TO THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, on or about December 1, 2003 the City of The Colony ("City") and
Horizon Amusement Southwest, LLC, entered into a Waterpark Ground Lease and Operating
Agreement ("Ground Lease"), which was assigned to HFE Horizon, L.P. on or about September
30,2004, and further assigned to CNL Income Colony, L.P. (CNL") on or about April 15, 2006;
and
WHEREAS, CNL is preparing to enter into a senior secured revolving credit facility
("Loan") with Colonial Bank, N.A., which Loan will be secured by mortgages or leasehold
mortgages, as applicable, on multiple properties owned and/or ground leased by CNL, including
the Property referenced in the Ground Lease; and
WHEREAS, CNL has been advised it cannot execute and deliver a leasehold mortgage
with respect to its interests under the Ground Lease without first obtaining written consent from
the City; and
WHEREAS, the City Council has determined it to be in the best interest of the City to
approve Ground Lessor's Estoppel Certificate, which is attached hereto and incorporated herein
as Exhibit "A" and to authorize the City Manger to execute the same.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS THAT:
Section 1. The City Council hereby approve the Ground Lessor's Estoppel Certificate by
and between the City of Colony, Texas, and CNL Income Colony, LP, c/o CNL Income
Properties, Inc. for the purposes provided therein, which is attached hereto and incorporated
herein as Exhibit "A"; and, the City Manager is hereby authorized to execute the same.
Section 2. This Resolution shall become effective immediately from and after its
passage, as the law and charter in such cases provides.
PASSED, APPROVED and EFFECTIVE this 20th day of August 2007.
ohn Dillard, Mayor
City of The Colony, Texas
Page 1
TM 19171.76.000
ATTEST~ .
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Christie Wilson, City Secretary,
City of The Colony, Texas
Page 2
TM 19171.76.000
GROUND LESSOR'S ESTOPPEL CERTIFICATE
This Estoppel Certificate (this "Certificate") is dated ~ .?1> , 2007 among CNL
Income Colony, LP, a Delaware limited partnership ("Mortgago~e address is c/o CNL
Income Properties, Inc. 450 South Orange Avenue, Orlando, Florida 32801; and The City of The
Colony, Texas, a Texas home-rule municipality ("Ground Lessor"), whose address is 6800 Main
Street, The Colony, Texas 75056. CNL Income Partners, LP, a Delaware limited partnership and
affiliate of Mortgagor ("Borrower"), as borrower, and Colonial Bank, N.A., a national banking
association ("Lender"), as administrative agent and lender, are about to enter into an agreement
whereby Lender will provide Borrower with a senior secured revolving credit loan facility in the
principal amount of up to $100,000,000 with Borrower's ability to increase said loan facility to a
maximum principal amount of up to $200,000,000 (the "Loan"), and, in connection therewith,
Lender will acquire a Leasehold Deed of Trust and Security Agreement or Leasehold Mortgage
and Security Agreement ("Mortgage") with respect to Mortgagor's leasehold interest in the
Property described below.
To induce Lender to extend the Loan to Borrower, and against such security interest in
the Property evidenced by the Mortgage and for other valuable consideration, with knowledge
that Lender is relying thereon, Ground Lessor and Mortgagor hereby agree with Lender as
follows:
THE LEASE. Ground Lessor has leased the Property to Mortgagor pursuant to that
certain Waterpark Ground Lease and Operating Agreement dated December 1, 2003, between
Ground Lessor, as ground lessor, and Horizon Amusement Southwest, LLC, a Missouri Limited
Liability company (HAS), as ground lessee; as assigned by Horizon Amusement Southwest,
LLC to HFE Horizon L.P., a Texas limited partnership, pursuant to that certain Assignment and
Assumption of Ground Lease dated September 30, 2004; and as further assigned by HFE
Horizon L.P. to Mortgagor pursuant to that certain Assignment, Consent to Assignment and
Assumption of Waterpark Ground Lease and Operating Agreement, dated April 15, 2006,
between HFE Horizon, L.P., as assignor, and Mortgagor, as assignee.
1. REAL PROPERTY DESCRIPTION. The Lease covers the following
described real property, together with improvements thereon (the "Property"), located in The
Colony, Denton County, State of Texas, commonly known as "Hawaiian Falls Colony
Waterpark":
AS PER "EXHIBIT "A" ATTACHED HERETO AND MADE A PART THEREOF
The Property address is commonly known as 4400 Paige Road, The Colony, Texas
75056. The Assessor's Parcel Numbers for the Property is P949150.
2. ESTOPPEL. Ground Lessor and Mortgagor hereby jointly and severally
represent and warrant to Lender that:
(a) Lease in Effect. The Lease (i) has been fully executed and accepted by
Ground Lessor and Mortgagor; (ii) is in full force and effect; and (iii) has not been modified or
0914625\130606\1076859\1
changed, either in writing or orally, except as reflected in the copy of the Lease provided to
Lender.
(b) No Default. As of the date of this Certificate, (i) all conditions and
obligations to be performed by either Ground Lessor or Mortgagor under the Lease to the date
hereof, have been satisfied; (ii) there exists no breach, default or event or condition which, the
giving of notice or the passage of time, or both, would constitute such a breach or default under
the Lease; and (iii) there are no existing claims, defenses or offsets against obligations of either
Ground Lessor or Mortgagor under the Lease, including any against rents due or so become due
under the terms of the Lease.
(c) Entire Agreement. The Lease constitutes the entire agreement between
Ground Lessor and Mortgagor with respect to the lease of the Property.
(d) No Prepaid Rent. No deposits or prepayments of rent have been made in
connection with the Lease.
3. AGREEMENTS. Ground Lessor and Mortgagor hereby jointly and severally
agree with Lender that, during all such times as Mortgagor is the beneficiary of the security
interest in the Property described above:
(a) Modification, Termination and Cancellation. Ground Lessor and
Mortgagor will not consent to any modification, termination or cancellation of the Lease unless
Lender first consents thereto in writing.
(b) Notice of Default. Ground Lessor will notify Lender in writing
concurrently with any notice given to Mortgagor of any breach or default on the part of
Mortgagor under the Lease, and Ground Lessor agrees that Lender shall have the right, but not
the obligation, to cure any breach or default specified in such notice within the time periods set
forth in the Lease, and Ground Lessor will not declare a default of the Lease if Lender cures such
defaults within the time periods provided in the Lease.
4. MISCELLANEOUS PROVISIONS. This Agreement shall extend to and bind
the respective heirs, personal representatives, successors and assigns of the parties to this
Certificate. This Certificate shall be governed by and construed in accordance with the laws of
the State of Texas. Lender shall not be deemed to have waived any rights under this Certificate
unless such waiver is in writing and signed by Lender. No delay or omission on the part of
Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver
by Lender of a provision of this Certificate shall not constitute a waiver of or prejudice Lender's
right otherwise to demand strict compliance with that provision or any other provision.
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MORTGAGOR AND GROUND LESSOR EACH ACKNOWLEDGE HAVING READ
ALL THE PROVISIONS OF THIS GROUND LESSOR'S ESTOPPEL CERTIFICATE AND
EACH AGREES TO ITS TERMS. THE CERTIFICATE IS DATED -1Lo ~ ' 2007
MORTGAGOR:
CNL INCOME COLONY, LP,
a Delaware limited partnership
By: CNL INCOME COLONY GP, LLC,
A Delaware limited liability company, General Partner
1,'
+-CcepC~rd
GROUND LESSOR:
CITY OF THE COLONY, TEXAS,
a Texas home-rule municipality
By: 9~c1L
Name:
Title:
0914625\130606\1076859\1
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MORTGAGOR ACKNOWLEDGEMENT
STATE OF
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ss.
COUNTY OF
On , before me, , personally appeared
, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to this Estoppel Certificate
and acknowledged to me that he or she executed the same in his or her authorized capacity, and
that by his or her signature on this Estoppel Certificate he or she, or the entity upon behalf of
which he or she acted executed this Estoppel Certificate.
WITNESS my hand and official seal.
Signature
GROUND LESSOR ACKNOWLEDGMENT
STATE OF ~Xlr~ )
COUNTY OF bFN\btJ ~
on rL~(j~;)o. doo1 , before me, {l./~{(,I'~T\'e. IN.. (5c;y'\ , personally
appeared -----=:J:Sa.f~ IC-it€ A-T~ 1r(V... , personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to this Estoppel
Certificate and acknowledged to me that he or she executed the same in his or her authorized
capacity, and that by his or her signature on this Estoppel Certificate he or she, or the entity upon
behalf of which he or she acted executed this Estoppel Certificate.
ss.
WITNESS my hand and official seal.
Signatur
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~~,..."~'...,, ' CHRISTIE NfU WILSON
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0914625\130606\1076859\1
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0914625\130606\1076859\1
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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