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HomeMy WebLinkAboutResolution No. 2011-087 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2011- 0X, ' A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE ESTOPPEL CERTIFICATE AND AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY, BLUE SKY SPORTS CENTER, LP, AND COMMUNITY CERTIFIED DEVELOPMENT CORPORATION, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; GROUND LEASE ESTOPPEL CERTIFICATE AND AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY, BLUE SKY SPORTS CENTER, LP, AND TEXAS FIRST BANK, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "B"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENTS; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City and Blue Sky Sports Center, LP, entered into a Ground Lease Agreement on January 3, 2000; and WHEREAS, the City has determined that it is in the best interest of the City to enter into an Estoppel Certificate and Agreement with Blue Sky Sports Center, LP, and Community Certified Development Corporation, which is attached hereto and incorporated herein by reference as Exhibit "A", under the terms and conditions provided therein. WHEREAS, the City has determined that it is in the best interest of the City to enter into a Ground Lease Estoppel Certificate and Agreement with Blue Sky Sports Center, LP, and Texas First Bank, which is attached hereto and incorporated herein by reference as Exhibit "B", under the terms and conditions provided therein. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: Section 1. The Agreements, which are attached and incorporated hereto as Exhibit "A" and Exhibit "B", having been reviewed by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the City Manager is hereby authorized to execute the Agreement on behalf of the City of The Colony, Texas. Section 2. That this Resolution shall take effect immediately from and after its adoption and it is so resolved. PASSED, APPROVED, AND EFFECTIVE this 6th day of December, 2011. x MCCou y, Mayor A TE IT: Christie l/Wilson, City Secretary APPROVED AS TO FORM: /k , ;Jeff Moore; City Attorney I GROUND LEASE ESTOPPEL CERTIFICATE AND AGREEMENT This Ground Lease Estoppel Certificate and Agreement (the "Agreement") is entered into effective as of ~eC, "7+K _W 2011, by and between TEXAS FIRST BANK (the "Lender"), THE CITY OF THE COLONY, a Texas municipal corporation (the "Owner") and BLUE SKY SPORTS CENTER, LP, a Texas limited partnership (the "Tenant"). RECITALS: A, On January 3, 2000, Owner and Tenant entered into that certain Ground Lease Agreement (the "Lease"), covering certain real property in Denton County, Texas (the "Leased Premises"), and more particularly described in the Lease. A true and correct copy of the Lease is attached as Exhibit "1". B. Tenant has applied to Lender for 2 loans in the principal amounts of $1,055,264,00 and $840,948.00 (collectively, the "Loan"). The Loan is to be secured by, among other instruments, 2 Leasehold Deeds of Trust and Security Agreements executed by Tenant (collectively, the "Security Instrument"), covering, among other property, (i) an assignment of all of Tenant's right, title, and interest in and to the Lease, and (ii) all of Tenant's interest in the equipment, inventory, removable fixtures, and other Tenant assets located in the Leased Premises (collectively, the "Collateral"). C, Recognizing that this Agreement is a condition of the Loan, Owner and Tenant desire to confirm their understanding with Lender with respect to the Lease and the Loan. AGREEMENT: NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and to induce Lender to make the Loan requested by Tenant, and for other good and valuable consideration, the receipt and legal sufficiency of which are acknowledged, Lender, Owner, and Tenant agree and covenant as follows: 1. The Lease. Owner and Tenant covenant and represent to Lender and to each other that (a) the Lease is in good standing, and in full force and effect without any modi- fication or amendment as of the date hereof, except as shown in Exhibit "1," (b) the Lease shall not be amended without the prior written approval of Lender, (c) there are no defaults by either Owner or Tenant under the Lease and each party has fully complied with all obligations under the Lease, and (d) the Lease shall not be terminated or cancelled except as expressly provided in the Lease and as permitted under the terms of this Agreement. 2. Consent to Assignment. Owner acknowledges and agrees that pursuant to the terms of the Security Instrument, Tenant has assigned all of its interest in the Collateral to Lender as security for the Loan. 3. Subordination. Any and all liens, rights, or claims, whether contractual, statutory or otherwise, now or hereafter held or claimed by Owner in and to the Collateral shall be and are hereby subordinated to the liens of Lender securing payment of the Loan, together with all interest, fees, expenses, and charges related thereto, along with all increases, renewals, extensions, and modifications of the Loan. Notwithstanding the above, the Loan and Security Instrument will at all times be and remain inferior and subordinate to all of the conditions, covenants, and obligations of the Lease, except as specifically provided in this Agreement. 11/30/11:2:33 pm:lT:\RSR\04003\70611\leca.wpd 4. Tenant's Default Under Lease. Owner shall furnish to Lender copies of all default notices which Tenant is entitled to receive under the Lease. Owner shall not terminate the Lease or terminate Tenant's right to possession of the Leased Premises thereunder or the right to the enjoyment of any of the rights and benefits therefrom, unless a notice specifying the event of default has been given to Lender. Lender may, at its option, at any time within 30 days after the giving of such notice of default, pay any of the rents or other sums of money stipulated to be paid by Tenant, or to do any other act or thing required of Tenant by the terms of the Lease, so as to cure such event of default. If Lender cures any such event of default by Tenant under the Lease within such 30 day period (other than defaults which by their nature are not reasonably susceptible of being cured by Lender within such time period), or, with respect to defaults which are reasonably susceptible of being cured, but not within such 30 day period, Lender commences promptly (m any event within such 30 day period) and proceeds diligently and with continuity to cure such default, then any payments made and any and all things done by Lender to affect such cure shall be effective to prevent the termination of the Lease or the termination of Tenant's rightto possession thereunderas if timely done by Tenant. Those events of default which, by their nature, are not reasonably susceptible to being cured by Lender (e.g., the bankruptcy of Tenant) shall not constitute grounds for termination of the Lease or termination of Tenant's right to possession thereunder by Owner, if Lender performs or causes to be performed all obligations thereunder reasonably capable of being performed by Lender and thereafter continues to comply with those provisions with which, by their nature, Lender can comply. 5. Tenant's Default Under Loan. In the event Tenant shall be in default under the terms of the Loan or under the terms of any instrument securing the Loan, or in the event for any reason Lender shall be entitled to take possession of any or all the Collateral, Owner agrees to provide Lender, its agents, attorneys, or representatives, such access and entrance to the Leased Premises as may be necessary to enable Lender to remove and take possession of the Collateral. This consent is conditioned upon Owner being in possession and control of the Leased Premises, it being understood that if the Lease is in full force and effect, Owner shall not be in possession or control of the Leased Premises. Tenant agrees that a written statement from Lender to Owner stating that Tenant is in default under the terms of the Loan or the instruments securing the Loan, or that Lender is entitled to possession of any or all of the Collateral, shall be sufficient to authorize and permit Lender's access to the Leased Premises and Collateral. Tenant releases Owner and Lender from any and all claims or causes of action resulting directly or indirectly from Lender's entry on the Leased Premises and/or the removal of the Collateral. 6. Enforcement by Lender. In the event Tenant shall be in default under the terms of the Loan or under the terms of any instrument securing the Loan, Lender may exercise its rights to sell at public or private sale the Collateral. In such event, Owner consents to Lender's conveyance of the Collateral to the purchaser thereof, including title to Tenant's interest in the Lease. Upon such conveyance, Lender, Owner and the purchaser of Tenant's interest in the Lease shall execute such documentation as shall be reasonably required to evidence such transfer and to establish a direct landlord - tenant relationship covering the Leased Premises. Lender shall not be or become liable to Owner as an assignee of the Lease until such time as Lender shall, by foreclosure or other appropriate proceedings in a nature thereof, or as a result of any other action or remedy provided to Lender, under the Security Instrument, or proper conveyance from Tenant, either acquires Tenant's interest in the Lease or take actual possession of the Leased Premises. In the event Lender forecloses upon the Collateral and is the purchaser thereof, then Lender, upon any subsequent assignment thereof, will be released from any and all liabilities arising thereafter under the Lease, except such liabilities as may have arisen subsequent to such foreclosure and prior to such assignment. 11/18/11:7:42 am:H:\RSM04003\7061 Neca.wpd -2- 7. New Lease Following Termination. In the event of the termination of the Lease for any reason other than the expiration of the stated Lease term, or by reason of either eminent domain or condemnation pursuant to the terms of the Lease, Owner will serve upon Lender notice that the Lease has been terminated, together with a statement of any or all sums which would have, at the time, been due under the Lease but for such termination, and of all other defaults, if any, under the Lease then known to Owner. Lender shall have the option, upon giving notice to Owner not later than 90 days after the giving of notice from Owner to Lender of such termination, to elect to receive from Owner a new lease of the Leased Premises for the unexpired balance of the term of the Lease and otherwise on the same terms and conditions set forth in the Lease. Within 30 days after the giving of such notice by Lender electing to receive a new lease, Owner, as landlord, and Lender, as tenant, shall execute a new lease agreement provided that, no later than the execution date of the new lease agreement, Lender shall have paid to Owner all rents and other sums of money then due and owing under the Lease and remedy any default by Tenant under the Lease (other than defaults which by their nature are not reasonably susceptible of being remedied by Lender), or, if, with respect to defaults which are reasonably susceptible of being remedied, but not within such time period, Lender shall have promptly commenced (in any event no later than the date of such execution of the new lease agreement) and thereafter shall proceed diligently and with continuity to remedy such default. If Lender shall become a tenant of Owner under such new lease agreement and subsequently assign the new lease agreement, then Lender shall thereupon be relieved of further liability under the lease agreement for all obligations not theretofore accrued. 8. Miscellaneous. A. The term "Lender," for the purpose of this Agreement, shall be deemed to include any party that acquires title to the Collateral pursuant to (a) any foreclosure sale resulting from the foreclosure of the Loan, or (b) a deed in lieu of foreclosure of the Loan. B. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforceable to the maximum extent permitted by applicable law. C. This Agreement may not be modified orally or in any other manner other than by an agreement in writing signed by the parties hereto. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, legal representatives, successors and assigns. Wheneverused in this document, unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, the pronouns of any gender shall include all other genders, and either the singular or plural shall include the other. D. Except as otherwise provided herein, all notices, demands, requests, and other communications required or permitted hereunder shall be given in writing and sent by (i) personal delivery, or (ii) expedited delivery service with proof of delivery, or (iii) United States mail, postage prepaid, registered or certified mail, return receipt requested, or (iv) facsimile (provided that such facsimile is confirmed by expedited delivery service or by United States mail in the manner previously described), addressed to the addressee at such party's address set forth herein, or to such other address as such parry may specify by written notice, sent in accordance with this paragraph. Any such notice or communication shall be deemed to have been given and received either at the time of personal delivery, or in the case of mail, as of 3 business 11/18/11:7:42 am:H:\RSR\04003\70611\1eca.wpd -3 - days after deposit in an official depository of the United States mail, or in the case of either delivery service, or facsimile, upon receipt. To the extent actual receipt is required, rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was received shall be deemed to be receipt of the notice, demand, request, or other communication sent. E. In the event any legal action or proceeding is commenced to interpret or enforce the terms of, or obligations arising out of, this Agreement, or to recover damages for breach thereof, the prevailing party in such action or proceeding shall be entitled to recover from the non-prevailing party all reasonable attorney's fees, costs and expenses incurred by the prevailing party as shall be plead and proven by such party and awarded by a Court of competent jurisdiction. F. This Agreement contains the sole and entire agreement and understanding between the parties with respect to the subject matter hereof and shall supersede any and all other oral or written agreements between the parties with respect to the subject matter hereof. G. THE LAWS OF THE STATE OF TEXAS SHALL APPLY TO THIS AGREEMENT AND ITS CONSTRUCTION AND INTERPRETATION SHALL BE ENFORCEABLE IN DENTON COUNTY, TEXAS. H. This Agreement may be executed in multiple counterparts, each of which shall constitute an original instrument, all of which will constitute one and the same agreement. IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the dates of the acknowledgments set forth below, to be effective for all purposes, however, as of the date first above written. Address: LENDER: 2343 N. Main Street, Suite B Pearland, Texas 77581 TEXAS FIRST BANK By: Name:' Cyr Title: fe ,r Address: OWNER: 6800 Main Street The Colony, Texas 75056-0008 THE CITY OF THE COLONY, TEXAS BY. Name: Title: 11/18/11:7:42 am:H:\RSR\04003\706I1Veca.wpd -4- Address: TENANT: 7801 Mani Street The Colony, Texas 75056 BLUE SKY SPORTS CENTER, LP By: Blue Sky Sports Center Holding, Inc., a Texas cor oration, its Gen y. eter Br dy, Pre ident THE STATE OF TEXAS § COUNTY OF -6 , § This was acknowledged before me by the said of TEXAS FIRST BANK, a state chartered bank, for and on behalf of said bank, on this the /3-+ day of Ce 2011. aami. Cudi`hifr~r DIANA A. IGWpN Notary Public, state of T®xea NOTARY PUBLIC, STATE OF TEXAS MY Cvmmission Explrog A01111 15, 2014 THE STATE OF TEXAS § COUNTY OF ~~1711 Y § T 's was acknowledged before me by the said 16) kA a1li A /j,, J- of TIIE CITY OF THE COLONY TEXASa Tex ipal cor -ation, for on behalf of said corporation, on this the U/ day of 2011. NOTARY PUBLIC, STATE TEXAS ~.l.t:i3xn'ri'.i ul ~i..u.L.n:l1N<•bo-Vb'yFII*~9W~~ 11/18/11:7:42 am:H:\RSR\04003\70611\1eca.wpd -5 - THE STATE OF TEXAS § COUNTY OF, § This was acknowledged before me by the said Peter Brody, President for and on behalf of Blue Sky Sports Center Holding, Inc., a Texas corporation, in its capacity as the general pa. of ,UE SKY SPORTS CENTER, LP, a Texas limited partnership, on this the of ,~,~2011. A_ PUBLI TAT F TEXAS AFTER RECORDING, RETURN TO: CAROLYN LEE ALLEGIANCE TITLE COMPANY tvatay Public, State of Texas 2570 F.M. 407, Suite 200.,` My Commission Exp. 11-17.2013 Highland Village, Texas 75077 Attn: Carolyn Lee - G. F. No. 1119060-ALHV 11/18/11:7:42 am:H:\R SR%04003\7061 Mleca.wpd -6-