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Home My WebLink AboutResolution - 2007-R0532 - Approve And Consent To Assignment Of Lease To American State Bank - 11/20/2007Resolution No. 2007 RO532 November 20, 2007 Item No. 5.9 RESOLUTION WHEREAS, the owner of Joyland Amusment Park desires to assign his Lease Agreement with the City of Lubbock to finance park improvements; and WHEREAS, Section 10 of said Lease Agreement permits assignment of the Lease Agreement with the written consent of the City of Lubbock; and WHEREAS, the Park and Recreation Board has recommended approval of the Lease Agreement assignment by the City of Lubbock; NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT the City Council of the City of Lubbock hereby approves and consents to the Assignment of Lease by the Leasee to American State Bank for financing of park improvements. SECTION 2. THAT, pursuant to Section 10 of the Lease Agreement, the City Manager of the City of Lubbock or her designee BE and is hereby authorized and directed to execute on behalf of the City of Lubbock an Assignment of Lease and any associated documents by and between the City of Lubbock and MacKenzie Park Playground, Inc., (DBA Joyland Amusement Park) and American State Bank, which Assignment is attached hereto and which shall be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 20th day of ATTEST: -ca GArza, City Secretary November , 2007. - DAVID A. MILLER, MAYOR AP= CONTENT: Randy Truesdell, Community Services Director A_ PPRO ED AS W FORM: Dorf and% r, Attorney of Counsel DDres/]oyland-ASB LeaseAssignRes October 5. 2007 ASSIGNMENT OF LEASE WITH RIGHT OF REASSIGNMENT Resolution No. 2007-80532 ...:. ,; :::: 3 :.:!;Eii3!.: ;.u3; !!,±•.:k;!.::;p.:.,:�•:qq1::�.:.: :l,...i± .�., I.:.:.€.,E:.1 �•:::�::�:4 a.:!:.::. :., : .;3.; ..3.. . 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Any item above containing """"" has been omitted due to text length limitations. Borrower: MACKENZIE PARK PLAYGROUND, INC. dba Lender: American State Bank JOYLAND AMUSEMENT PARK LENDING DIVISION PO BOX 2262 1401 AVENUE 0 LUBBOCK, TX 79408 PO BOX 1401 LUBBOCK, TX 79408-1401 THIS ASSIGNMENT OF LEASE WITH RIGHT OF REASSIGNMENT is entered into among MACKENZIE PARK PLAYGROUND, INC. dba JOYLAND AMUSEMENT PARK ("Borrower"), whose address is PO BOX 2262, LUBBOCK. TX 79408: American State Bank ("Lender"), whose address is LENDING DIVISION, 1401 AVENUE 0, PO BOX 1401, LUBBOCK. TX 79408-1401; and CITY OF LUBBOCK ("Landlord"), whose address is PO BOX 10536, LUBBOCK. TX 79408. Borrower and Lender have entered into, or are about to enter into, an agreement whereby Lender has acquired or will acquire a security interest or other interest in the Collateral. Some or all of the Collateral may be affixed or otherwise become located on the Premises. To induce Lender to extend the Loan to Borrower against such security interest in the Collateral and for other valuable consideration, Landlord hereby agrees with Lender and Borrower as follows. COLLATERAL DESCRIPTION. The word "Collateral" means certain of Borrower's personal property in which Lender has acquired or will acquire a security interest, including without limitation the following specific property: ALL EQUIPMENT, MACHINERY, RIDES, GAMES, INVENTORY, ACCOUNTS RECEIVABLES, GENERAL INTANGIBLES and ALL PERSONAL PROPERTY (including any proceeds and products), whether now owned or hereafter acquired and wherever located That certain lease agreement executed August 13, 1987 and entered Into by and between the CITY OF LUBBOCK, TEXAS, through its officers and MACKENZIE PARK PLAYGROUND, INC. dba JOYLAND AMUSEMENT PARK together with all amendments of, extensions of, modifications of and substitutions for the lease agreement subsequently executed . BORROWER'S ASSIGNMENT OF LEASE. Borrower hereby assigns to Lender all of Borrower's rights in the Lease, as partial security for the Loan. The parties Intend that this assignment will be a present transfer to Lender of all of Borrower's rights under the Lease, subject to Borrower's rights to use the Premises and enjoy the benefits of the Lease while not in default on the Loan or Lease. Upon full performance by Borrower under the Loan, this assignment shall be ended, without the necessity of any further action by any of the parties. This assignment includes all renewals of and amendments to the Lease or the Loan, until the Loan is paid in full. No amendments may be made to the Lease without Lender's prior written consent, which shall not be unreasonably withheld or delayed. CONSENT OF LANDLORD. Landlord consents to the above assignment. If Borrower defaults under the Loan or the Lease, Lender may reassign the Lease, and Landlord agrees that Landlord's consent to any such reassignment will not be unreasonably withheld or delayed. So long as Lender has not entered the Premises for the purpose of operating a business, Lender will have no liability under the Lease, including without limitation liability for rent. Whether or not Lender enters into possession of the Premises for any purpose, Borrower will remain fully liable for all obligations of Borrower as lessee under the Lease. While Lender is in possession of the Premises, Lender will cause all payments due under the Lease and attributable to that period of time to be made to Landlord. If Lender later reassigns the Lease or vacates the Premises, Lender will have no further obligation to Landlord. LEASE DEFAULTS. Both Borrower and Landlord agree and represent to Lender that, to the best of their knowledge, there is no breach or offset existing under the Lease or under any other agreement between Borrower and Landlord. Landlord agrees not to terminate the Lease, despite any default by Borrower, without giving Lender written notice of the default and an opportunity to cure the default within a period of sixty (60) days from the receipt of the notice. If the default is one that cannot reasonably be cured by Lender (such as insolvency, bankruptcy, or other judicial proceedings against Borrower), then Landlord will not terminate the Lease so long as Landlord receives all sums due under the Lease for the period during which Lender is in possession of the Premises, or so long as Lender reassigns the Lease to a new lessee reasonably satisfactory to Landlord. DISCLAIMER OF INTEREST. Landlord hereby consents to Lender's security interest (or other interest) in the Collateral and disclaims all interests, liens and claims which Landlord now has or may hereafter acquire in the Collateral. Landlord agrees that any lien or claim it may now have or may hereafter have in the Collateral will be subject at all times to Lender's security interest for other present or future interest) in the Collateral and will be subject to the rights granted by Landlord to Lender in this Agreement. ENTRY ONTO PREMISES. Landlord and Borrower grant to Lender the right to enter upon the Premises for the purpose of removing the Collateral from the Premises or conducting sales of the Collateral on the Premises. The rights granted to Lender in this Agreement will continue until a reasonable time after Lender receives notice in writing from Landlord that Borrower no longer is in lawful possession of the Premises. If Lender enters onto the Premises and removes the Collateral, Lender agrees with Landlord not to remove any Collateral in such a way that the Premises are damaged, without either repairing any such damage or reimbursing Landlord for the cost of repair. SBA REGULATION. "The loan secured by this lien was made under a United States Small Business Administration (SBA) nationwide program which uses tax dollars to assist small business owners. If the United States is seeking to enforce this document, then under SBA regulations: a) When SBA is the holder of the Note, this document and all documents evidencing or securing this Loan will be construed in accordance with federal law. b) Lender or SBA may use local or state procedures for purposes such as filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using these procedures, SBA does not waive any federal immunity from local or state control, penalty, tax or liability. No Borrower or Guarantor may claim or assert against SBA any local or state law to deny any obligation of Borrower, or defeat any claim of SBA with respect to this Loan. Any clause in this document requiring arbitration is not enforceable when SBA is the holder of the Note secured by this instrument.". MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: This Agreement shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Agreement. The covenants of Borrower and Landlord respecting subordination of the claim or claims of Landlord in favor of Lender shall extend to, include, and be enforceable by any transferee or endorsee to whom Lender may transfer any claim or claims to which this Agreement shall apply. Lender need not accept this Agreement in writing or otherwise to make it effective. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. If Landlord is other than an individual, any agent or other person executing this Agreement on behalf of Landlord represents and warrants to Lender that he or she has full power and authority to execute this Agreement on Landlord's behalf. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is in writing and signed by Lender. Without notice to Landlord and without affecting the validity of this Consent, Lender may do or not do anything it deems appropriate or necessary with respect to the Loan, any obligors on the Loan, or any Collateral for the Loan; including without limitation extending, renewing, rearranging, or accelerating any of the Loan indebtedness. AMENDMENTS. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given 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 Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Landlord, shall constitute a waiver of any of Lender's rights or of any of Landlord's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. SEVERABILITY. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by low, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise ASSIGNMENT OF LEASE WITH RIGHT OF REASSIGNMENT Loan No: 2011013756 (Continued) Page 2 defined in this Agreement shell have the meanings attributed to such terms in the Uniform Commercial Code: Agreement. The ward 'Agreement" means this Assignment of Lease with Right of Reassignment, as this Assignment of Lease with Right of Reassignment may be amended or modified from time to time, together with all exhibits and schedules attached to this Assignment of Lease with Right of Reassignment from time to time. Borrower. The word "Borrower" means MACKENZIE PARK PLAYGROUND, INC. dba JOYLAND AMUSEMENT PARK and Includes all cosigners and co -makers signing the Note and all their successors and assigns. Collateral. The word "Collateral" means all of Bonower's right, title and interest in and to all the Collateral as described in the Collateral Description section of this Agreement. Landlord. The word "Landlord" means CITY OF LUBBOCK, and Is used for convenience purposes only. Landlord's interest in the Premises may be that of a fee owner, lessor, sublessor or lienholde4 or that of any other holder of an Interest In the Premises which may be, or may become, poor to the interest of Lender. Lease. The word "Lease' means that certain lease of the Premises, dated August 13, 1887, between Landlord and Borrower.. Lender. The word "Lender" means American State Bank, its successors and assigns. Loan. The word "Loan" means any and all loans and financial accommodations from Lender to Borrower whether now or hereafter existing, and however evidenced. Note. The ward "Note" means the Note executed by MACKENZIE PARK PLAYGROUND, INC. dba JOYLAND AMUSEMENT PARK in the principal amount of $700,000.00 dated October 15, 2006, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the note or credit agreement. Premises. The word "Premises" means the real property located in LUBBOCK County, State of Texas, commonly known as 4TH & 427, MACKENZIE STATE PARK, LUBBOCK, T% 79408. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Loan. BORROWER AND LANDLORD ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS ASSIGNMENT OF LEASE WITH RIGHT OF REASSIGNMENT, AND BORROWER AND LANDLORD AGREE TO ITS TERMS. THIS AGREEMENT IS DATED OCTOBER 15, 2008. BORROWER: MACKENZIE PARK PLAYGROUND, INC. DBA JOYLAND AMUSEMENT PARK By: c_.. iv✓1 12%y JAM DA IDV pFRFI,'PAZ art of MACKENZIE PARK PLAYGROUND, INC. tlbe JOYLAND AMUSEMENT PARK LANDLORD: aTY 6U6lCrpdm a ly LENDER: AMERICAN STATE BANK x&� Auth arhed Officer