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HomeMy WebLinkAboutResolution - 2008-R0117 - Consent To Leasehold Deed Of Trust - Hangars Of Lubbock Inc. & Abilene Aero - 04/10/2008Resolution No. 2008-RO117 April 10, 2008 Item No. 5.9 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Consent to Leasehold Deed of Trust with Hangars of Lubbock, Inc. and Abilene Aero, Inc. d/b/a Lubbock Aero. Said agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 10th day of April , 2008. ATTEST: Garza, City Secretary APPAO VED AS TO C e ,00mis, Assistant tity'Manager & Public Works APPROVED AS TO FORM: Linda L. Charnales, Senior Attorney Office Practice Section Lc: CityAttlLindalRes-Consent to Leasehold D of T March 27, 2008 DAVID A. MILLER, MAYOR Resolution No. 2008-RO117 CONSENT TO LEASEHOLD DEED OF TRUST Terms Date: April 10, 2008 Landlord: The City of Lubbock, Texas Landlord's Mailing Address: Director of Aviation Lubbock International Airport Route 3, Box 389 Lubbock, Lubbock County, Texas 79403 Tenant: Abilene Aero, Inc. d/b/a Lubbock Aero Tenant's Mailing Address: Abilene Aero, Inc. 2850 Airport Blvd Abilene, Taylor County, Texas 79602 Lender: Hangars of Lubbock, Inc. Lender's Mailing Address: 915 Kent Road Lubbock, Lubbock County, Texas Lease (between Landlord and Tenant) Those leases described on the attached Exhibit "A" which have been or will be assigned by Lender to Tenant. Obligation Note Date: Aril 10.2008 Maker: Tenant Consent to Leasehold Deed of Trust Page 1 Payee: Lender Original principal amount: $625,000 Maturity date: March 31 , 2013 Deed of Trust Date: April 10, 2008 Trustee: William A Franklin Recording information (if known): Other Debt (if any): Clauses and Covenants A. Landlord's Agreements and Representations 1. Landlord consents to the encumbrance by Tenant of Tenant's interest under the Lease pursuant to the Deed of Trust. 2. To the extent that the tenant has the right, under the leases between the Landlord and Hangars of Lubbock, Inc. or Abilene Aero, Inc., to remove leasehold improvements, Landlord subordinates its right in and to such leasehold improvements to Lender's encumbrance of Tenant's interest under the lease pursuant to the Deed of Trust. 3. 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) no default under the Lease has occurred by Landlord or by Tenant; and (d) to Landlord's actual knowledge, there is no condition that, but for the passage of time or the giving of notice or both, would result in a default by Landlord or Tenant under the Lease. 4. 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. 5. 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. 8. 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 Consent to Leasehold Deed of Trust Page 2 within fifteen days after the expiration of any of Tenant's notice and cure periods set forth in the Lease; (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; and (d) with respect to a nonmonetary default of such a nature that it is not reasonably susceptible of being cured by Lender (e.g., a non -permitted assignment by Tenant), Lender is not otherwise paying rent and performing all of Tenant's obligations that, by their nature, Lender may perform. 7. If Lender acquires Tenant's interest under the Lease pursuantto foreclosure proceedings or otherwise, Lender is not required to cure any default under the Lease existing prior to such acquisition if the default cannot be cured by the payment of money or is personal to Tenant and, therefore, not susceptible of cure by Lender. 8. 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; and (b) a deed in lieu of foreclosure of the Deed of Trust. 9. On request by Lender, Landlord will deliver to Lender estoppel certificates related to the Lease and copies of documents creating or evidencing the Lease, certified by Landlord.. B. General Provisions 1. Until the Obligation is satisfied, Landlord and Tenant will not subordinate the Lease to any lien that may be placed on Landlord's interest in the Premises unless the lienholder enters into a subordination and non -disturbance agreement reasonably acceptable to Landlord, Tenant, and Lender. 2. If the Lease is terminated for any reason before expiration of its stated term or is rejected in bankruptcy, Landlord will, within fifteen days after Lender requests it, deliver to Lender, or a designee of Lender reasonably acceptable to Landlord, 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 termination or rejection, and will contain the same terms contained in the Lease. b. The new lease will be executed by Landlord and Lender, or a designee of Lender reasonably acceptable to Landlord, within ten days after receipt by Lender of the new lease. Consent to Leasehold Deed of Trust Page 3 C. On execution of the new lease, the new tenant will cure all monetary defaults that existed under the Lease upon its termination or rejection. d. Within thirty days after the execution of the new lease, the new tenant will cure all nonmonetary defaults that existed upon termination or rejection that are curable or, if any nonmonetary default is curable but 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. e. All noncurable defaults that existed under the Lease on its termination or rejection shall be waived. Any new lease will have the same priority as the Lease. g. 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 the termination or rejection of the Lease. 3. 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. 4. If the ownership of the fee and leasehold interests in the Premises becomes 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. 5. Any notice required or permitted under this agreement must be in writing. Any notice required by this agreement will be deemed to be delivered (whether actually received or not) when 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, facsimile transmission, or other commercially reasonable means and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. 6. 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 non -exercise of any right or remedy with respect to the Obligation; or (e) any Consent to Leasehold Deed of Trust Page 4 waiver, consent, release, delay or other action, inaction, or omission with respect to the Obligation. THE CITY OF LUBBOCK, TEXAS, ABILENE AERO, INC., Landlord Tenan �---- B / Y DAVID A. MILLER, MAYOR u;>F i-.0 President �. ATTEST: HANGARS OF LUBBOCK, INC., Lender By / 4ReVeccaGarza, City ecreta President APPROVED AS TO CONTENT: jJaes W. Loomis, Transportation ublic Works, Assistant City Manager APPROVED AS TO FORM: Linda L. C'hamales, Senior Attorney Office Practice Section MAHoRTOMConsent to Leasehold Deed of Trust ev 3.wpd (4-8-084°2-M) Consent to Leasehold Deed of Trust Page 5 STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on ri N ) , 2008 by ()AV iQ A- - Nle` I Mgt A, ,)r of The City of Lubbock, Texas, a Texas municipal corporation, on behalf of said corporation. EL. -D01 -1 r Notary Public, State exas Place Notary's Stamp Here: ELISA SANCHEZ Notary Public, State of Texas my Commission Expires 1 W7.2011 STATE OF TEX� //, COUNTY OF 4 tt. l This instrument was acknowledged before me on A©'eAL- 10 , 2008 by 0ic.ltrx./z( (7_gvs tt�r— _, Vice President of Abilene Aero, Inc., a Texas corporation, on behalf of said corporati". / Notary Public, State of Texas Plac StB FA P44&PW,— PAR" PO0. Sbb of Texas ( or W fipeeeillbn F�FpG i}3_L01.201j9 STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on ( 2 /o 2008 by Earl Horton, President of Hangars of Lubbock, Inc., a Texas corporation, on behalf of said corporation. Notary Public, State of Texas Place Notary's Stamp Here: PATWLAA A. HALL *Wy RW stem cf Texas °r C� Eow 03-01-2009 Consent to Leasehold Deed of Trust Page 6