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HomeMy WebLinkAboutResolution - 2018-R0142 - N50SQ, LLC - 04/26/2018Resolution No. 2018-RO142 Item No. 6.17 April 26, 2018 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the execution of that certain Consent to Leasehold Deed of Trust by the City Manager and the Executive Director of Aviation concerning a Lease Agreement by and between the City of Lubbock and N50SQ, LLC, of Lubbock, Texas, is hereby approved and ratified. Said Consent to Leasehold Deed of Trust is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on April 26, 2018 DANIEL M. POPE, MAYOR ATTEST: Reb t ca Garza, City ecret Ij APPROVED AS TO CONTENT: Kelly Campbell, Executive Director of Aviation ccdocs/RES.N50SQ, LLC, Consent to Leasehold Deed of Trust 03.23.2018 CONSENT TO LEASEHOLD DEED OF TRUST Basic Information Dated as of: March 21, 2018 Landlord: CITY OF LUBBOCK, a Texas home rule municipality Landlord's Mailing Address: c/o Lubbock Preston Smith International Airport 5401 N. MLK Boulevard, Unit 389 Lubbock, Texas 79403 Attn: Director Tenant: N50SQ, LLC, a Texas limited liability company Tenant's Mailing Address: 5307 W. Loop 289, Suite 302 Lubbock, Texas 79414 Attn: Gary Andrews Lender: HAPPY STATE BANK, a Texas bank Lender's Mailing Address: 4411 98th Street, Suite 100 Lubbock, Texas 79424 Attn: Clay Mercer Lease (between Landlord and Tenant) Date: March 23, 2017 Premises: 47,950 square feet of land located on the West side of the Lubbock Preston Smith International Airport in Lubbock, Texas, being further described in Exhibit "A" attached hereto Recording information (if applicable): Unrecorded Amendments (if applicable): None 1 I Consent to Leasehold Deed of Trust Obligation Note Date: March 21, 2018 Maker: Tenant Payee: Lender Original principal amount: $1,113,500.00 Maturity date: April 21, 2038 Deed of Trust Date: March 21, 2018 Trustee: PLA SERVICES, INC. Recording information (if known): Clerk's file number 2018010110 in the Official Records of Lubbock County, Texas Other Debt (if any): None A. Landlord's Agreements A.1. Landlord consents to the encumbrance by Tenant of Tenant's interest under the Lease pursuant to the Deed of Trust. A.2. Landlord represents to Lender that (a) the Lease is in effect; (b) except as set forth above, there are no amendments to the Lease; (c) Landlord has not delivered to Tenant any notice alleging that Tenant is in default under the Lease; and (d) to Landlord's actual knowledge, without inquiry or investigation, no event has occurred that, with the passage of time or the giving of notice or both, is a default by Tenant under the Lease. A.3. Until the Obligation is satisfied, Landlord will not (a) take any action to terminate the Lease or exercise any other remedy for default by Tenant under the Lease without first complying with the requirements of this agreement or (b) modify or cancel the Lease without Lender's prior written consent. A.4. Lender has the right to access and remove from the Premises Tenant's personal property to enforce Lender's security interest, either during the term of the Lease or within 30 days after the expiration or termination of the Lease or rejection of the Lease in bankruptcy. If Lender exercises this right after the end of the Lease term, Lender must, for that period, pay all rent and comply with all other requirements of Tenant under the Lease as a condition to exercising this right. 2 1 Consent to Leasehold Deed of Trust A.S. Landlord will concurrently send to Lender a copy of any notice of default sent to Tenant. Landlord will accept performance by Lender of any term of the Lease. A.6. The Lease will not be terminated because of a default by Tenant unless (a) notice of the default is delivered to Lender; (b) Lender has not cured a monetary default within fifteen days after the expiration of any of Tenant's notice and cure periods set forth in the Lease; and (c) Lender has not cured a nonmonetary default within thirty days after the expiration of any of Tenant's cure periods in the Lease or, if the default is curable but cannot be cured within the thirty - day period, (i) Lender has not notified Landlord within the thirty -day period that it intends to cure the default, (ii) Lender has not diligently commenced to cure the default, or (iii) Lender does not prosecute the cure to completion within a reasonable period of time after the expiration of any applicable cure periods in the Lease, but not to exceed sixty days. A.7. The following transfers of Tenant's interest under the Lease are permitted and do not require the consent of Landlord as long as the transferee assumes all of Tenant's obligations under the Lease: (a) a transfer resulting from a foreclosure under the Deed of Trust; (b) a deed in lieu of foreclosure of the Deed of Trust; and (c) a subsequent transfer by Lender or its designee if they acquire such interest. B. General Provisions B.1. If the Lease is rejected in bankruptcy, Landlord will, within fifteen days after Lender requests it, deliver to Lender or its designee a new lease of the Premises on the following terms: a. The new lease will be for the remainder of the term of the Lease, effective on the date of rejection, and will contain the same terms contained in the Lease. b. The new lease will be executed by Landlord and Lender or its designee within ten days after receipt by Lender of the new lease. C. On execution of the new lease, the new tenant will cure all monetary defaults that existed under the Lease upon its rejection. d. Within thirty days after the execution of the new lease, the new tenant will cure all nonmonetary defaults that existed upon rejection or, if any nonmonetary default reasonably cannot be cured within the thirty -day period, (i) the new tenant must notify Landlord within the thirty -day period that the new tenant intends to cure the default, (ii) the new tenant must diligently commence to cure the default, and (iii) the new tenant must diligently prosecute the cure to completion within a reasonable period of time after execution of the new lease, but not to exceed sixty days. Any new lease will have the same priority as the Lease. f. Landlord will hold for the account of the new tenant any moneys then held by or payable to Landlord that Tenant would have been entitled to receive but for 3 1 Consent to Leasehold Deed of Trust the termination or rejection of the Lease. B.2. To the extent of any inconsistency between the terms contained in the Lease and the terms set forth in this agreement, the terms of this agreement will control. B.3. If the ownership of the fee and leasehold interests in the Premises become vested in the same person or entity, that occurrence will not result in a merger of title as long as the Deed of Trust remains outstanding. B.4. Any notice required or permitted under this agreement must be in writing. Any notice required by this agreement will be deemed to be given (whether received or not) the earlier of receipt or three business days after being deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this agreement. Notice may also be given by regular mail, personal delivery, courier delivery, or e-mail and will be effective when received. Any address for notice may be changed by written notice given as provided herein. B.S. This agreement will not be affected by (a) any renewal or modification of the Obligation; (b) the invalidity or unenforceability of any document evidencing or securing the Obligation; (c) the release or other disposition of any collateral for the Obligation; (d) the exercise or nonexercise of any right or remedy with respect to the Obligation; or (e) any waiver, consent, release, delay or other action, inaction, or omission with respect to the Obligation. EXECUTED to be effective on the day first above written LANDLORD: CITY OF LUBBOCK, TEXAS, a Texas municipal corporation Y� Kelly ampbell, irector of Aviation By: Jarr Atkinson, City Manager 4 1 Consent to Leasehold Deed of Trust LENDER: HAPPY STATE BANK, a Texas banking association By: Clay Njercer, Senior Vice President TENANT: N50SQ, LLC, a Texas Limited liability company i r' 5 1 Consent to Leasehold Deed of Trust EXHIBIT A Property A leasehold estate in the following described real property: A 1.1008-acre (47,950-square foot) tract of land in Section 28, Block A, Abstract No. 685, Lubbock County, Texas, being a portion of the Lubbock -Preston Smith International Airport, said 1.1008-acre tract being further described by metes and bounds as follows: BEGINNING at a '/2-inch iron rod with a cap marked "PSC RPLS 6453" set for the Southwest corner of this tract, said Southwest corner having coordinates of NORTHING: 7,299,544.82 and EASTING: 954,555.65, Texas Coordinate System, North Central Zone 4202, North American Datum of 1983, whence the Southwest corner of said Section 28 bears South 01 degrees 34 minutes 38 seconds West a distance of 51.08 feet and North 88 degrees 25 minutes 22 seconds West a distance of 1132.40 feet, per calls in previous descriptions; THENCE North 01 degrees 29 minutes 44 seconds East a distance of 162.11 feet to a 1/2-inch iron rod with a cap marked "PSC RPLS 6453" set for the Northwest corner of this tract; THENCE South 88 degrees 32 minutes 25 seconds East at a distance of 35.13 feet pass a 1/2 — inch iron rod with a cap marked "STEVENS RPLS 4339" found at the Southwest corner of a 47,740-square foot tract of land surveyed by Norris Stevens on October 12, 2012, continuing for a total distance of 295.90 feet to a "MAG" nail found at the Southeast corner of said 47,740- square-foot tract, for the Northeast corner of this tract, said Northeast corner having coordinates of NORTHING: 7,299,699.30 and EASTING: 954,855.62, Texas Coordinate System, North Central Zone 4202, North American Datum of 1983; THENCE South 01 degrees 41 minutes 26 seconds West a distance of 162.29 feet to a "MAG" nail with washer stamped "PSC RPLS 6453" set for the Southeast corner of this tract; THENCE North 88 degrees 30 minutes 16 seconds West a distance of 295.35 feet to the POINT OF BEGINNING.