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HomeMy WebLinkAboutResolution - 2007-R0440 - Non-Disturbance And Attornment - Plainscapital Bank & 1859 Management Partners - 09/13/2007Resolution No. 2007-RO440 September 13, 2007 Item No. 6.13 RESOLUTION 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 d to execute for and on behalf of the City of Lubbock a Non -Disturbance and ment with PlainsCapital Bank and 1859 Management Partners, L.P. Said tent is attached hereto and incorporated in this Resolution as if fully set forth and shall be included in the minutes of the Council. by the City Council this 13th day of September 2007. DAVID A. MILLER, MAYOR ATTEST: Re ecca Garza, City Secretary APPROVED AS TO ONTENT: Rob Allis ssJ t anager Development Services APPROVED AS TO FORM: Linda L. Chamales, Senior Attorney Office Practice Section Lc: CityAtt/Linds/Res-Conference Center Non -Disturbance July 18, 2007 Resolution No. 2007–R0440 NON -DISTURBANCE AND ATTORNMENT AGREEMENT (PARKING FACILITIES LEASE) THIS NON -DISTURBANCE, AND ATTORNMENT AGREEMENT ("Agreement") is made as of the 13th day of September, 2007, by and among PlainsCapital Bank, a Texas state bank ("Lender"), City of Lubbock, Texas (`City"), and 1859 Management Partners, LP, a Texas limited partnership ("Landlord"). Recitals A. City is the lessee under the Parking Facilities Lease dated the 13th day of September, 2007, entered into by and between Landlord and City (the "Lease") , covering certain land and parking improvements to be constructed thereon located in Lubbock County, Texas, as more particularly defined and described in the Lease (the "Premises"). B. Lender has made or will make a loan to Landlord, the owner of the Premises (the "Loan") as evidenced by a note (the "Note") and secured by a Deed of Trust and an Assignment of Leases and Rents (collectively, the "Security Documents") on the Premises and certain other property owned by Landlord (collectively, the "Property"), all of said property described on Exhibit A. C. City desires to be assured that, if Lender should foreclose the Security Documents, Lender agrees to recognize the leasehold estate and rights of City under the Lease and to assume and be bound to City to perform the obligations of Landlord under the Lease with the same force and effect as if Lender were the Landlord under the Lease (subject to any express exceptions herein). D. Lender is willing to agree that City's possession of the Premises shall not be disturbed in any way as a result of a foreclosure of the Security Documents or a transfer in lieu of foreclosure. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties mutually covenant and agree as follows: 1. Non -Subordination. Subject to the terms hereof, City does not subordinate the Lease or any extensions, modifications, and renewals thereof, or any of City's rights and interests thereunder, to the lien of the Security Documents and to any modifications, renewals and extensions of the same. This Agreement shall not be construed to subordinate the Lease to any other security documents or any other liens or encumbrances. Lender covenants and agrees Non -Disturbance and Attornment Agreement (Parking Facilities Lease)—Page 1 9/7/2007 2:52 PM that the lien of the Security Documents is subject in all respects to the Lease, provided, however, City acknowledges and agrees that Lender shall have a lien on the leasehold estate of any tenant of the City to be created by that certain City Facilities Lease Agreement (the "CF Lease") to be entered into by City and 1859 Management Partners, LP relating to a Conference/Civic Center to be constructed upon the land adjacent to the Premises, which leasehold estate shall also include the subleasing of City's leasehold rights in and to the Premises. City covenants and agrees with Lender and Landlord that City will enter into the CF Lease with Landlord (or its affiliate) as tenant on substantially the terms and conditions set forth in Section 4.2.3 of the Master Development Agreement dated as of February 24, 2006, by and among City, Garfield Traub Development LLC, and Landlord's affiliate, as soon as practicable but on or before the opening date of the Conference/Civic Center. City acknowledges and agrees that City's covenant to enter into the CF Lease is a material inducement and condition to the execution of this Agreement by both Lender and Landlord. 2. Non -Disturbance. If, and when, Lender ever commences foreclosure proceedings or accepts a deed in lieu of foreclosure, no default under the Security Documents, as modified, extended or otherwise amended, and no proceeding to foreclose the same or the acceptance by Lender of a deed in lieu of foreclosure, or by the exercise of any of Lender's rights under the Security Documents, will disturb City's possession of the Premises under the Lease, nor will the Lease be affected or extinguished thereby and Lender hereby recognizes City's rights to the Premises pursuant to the terms of the Lease. In addition, Lender agrees not to name City in any proceeding instituted to foreclose the Security Documents, unless Lender is legally obligated to do so to properly foreclose the same and then such foreclosure shall in any event be made subject to the provisions of this Agreement. Under no circumstances will City be obligated to incur or bear any cost, expense or liability whatsoever in connection with any foreclosure action and Landlord (but not Lender) covenants and agrees to hold City harmless from any such cost, expense or liability. 3. Attornment. In the event of any such foreclosure or other sale to, or acquisition of the Premises by any other manner in lieu of foreclosure by, Lender or a third party (the purchaser at foreclosure or the transferee in lieu of foreclosure, including Lender if it is such purchaser or transferee and their successors and assigns being referred to herein as the "Purchaser"), City shall attom to Purchaser provided Purchaser shall recognize the Lease as a direct lease from Purchaser to City and Purchaser shall assume and be bound to City to perform the obligations of Landlord under the Lease, except that Purchaser shall not be bound by any amendment or modification of the Lease hereafter made without the written consent of Lender if such amendment or modification (i) changes the initial or any renewal tern of the Lease, (ii) changes any renewal rights under the Lease, (iii) changes the location or extent of the Premises, or (iv) otherwise changes or alters any other key economic factors or terms of the Lease. Lender agrees, Non -Disturbance and Attornment Agreement (Parking Facilities Lease)—Page 2 9/7/2007 2:52 PM without any obligation so to act, to use reasonable efforts to notify City in writing of any material breach or default by Landlord of any of the Security Documents. 4. Notices to Landlord. From and after the date City receives a fully executed copy of this Agreement, City agrees, without any obligation so to act, to send a copy of any notice or statement of a material default by Landlord under the Lease to Lender at the same time such notice or statement is sent to Landlord, at the address and pursuant to the provisions of Section 9 below, and City may not terminate the Lease without affording to Lender a period of time to remedy any such default by Landlord equal to the greater of (a) ninety (90) days or (b) the curative period afforded to Landlord under the Lease with respect to such default, such period to commence upon the receipt by Lender of written notice of such default. A Purchaser shall be deemed to have received notice if Lender received such notice. 5. Lease Provisions. It is agreed that this Agreement shall supersede, to the extent inconsistent therewith, the provisions of the Lease, if any, relating to subordination of the Lease. 6. Notice. (a) Written Notice; Delivery Methods. Each party giving or making any notice, request, demand, or other communication (each, a "Notice" (but sometimes "notice")) pursuant to this Agreement shall: (i) give the Notice in writing; (ii) cause the Notice to be signed by an authorized representative of the sending party; and (iii) use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: (a) personal delivery; (b) Registered or Certified Mail, in each case, return receipt requested and postage prepaid; (c) nationally recognized overnight courier, with all fees prepaid; or (d) facsimile. (b) Addresses. Each party giving a Notice shall address the Notice to the appropriate person at the receiving party (the "Addressee") at the addresses listed below or to another Addressee or at another address as designated by a party in a Notice pursuant to this Section. Lender: PlainsCapital Bank 5010 University Lubbock, TX 79413 Attention: Mr. Steve Lewis Telephone: 806-791-7397 Facsimile: 806-908-8099 Non -Disturbance and Attomment Agreement (Parking Facilities Lease) --Page 3 9/7/2007 2:52 PM With a copy to: Gardere Wynne Sewell LLP 1601 Elm Street Dallas, TX 75201-4761 Attention: Steven S. Camp, Esq. Telephone: 214-999-4354 Facsimile: 214-999-3354 City: City Manager City of Lubbock P. O. Box 2000 Lubbock, TX 79457 Attention: Rob Allison, Assistant City Manager Telephone: (806) 775-2110 Facsimile: (806) 775-2051 With a copy to: City Attorney City of Lubbock P. O. Box 2000 Lubbock, TX 79457 Attention: Linda Chamales, Senior Attorney Telephone: (806) 775-2215 Facsimile: (806) 775-3307 Landlord: 1859 Management Partners, LP c/o Gal -Tex Hotel Corporation 2302 Postoffice Street, Suite 500 Galveston, TX 77550-1935 Attention: Mr. Eugene Lucas Telephone: 409-763-8536 Facsimile: 409-763-5304 With a copy to: Winstead PC 5400 Renaissance Tower 1201 Elm Street Dallas, TX 75270 Attention: John C. Rutherford, Esq. Telephone: 214-745-5723 Facsimile: 214-745-5390 Non -Disturbance and Attornment Agreement (Parking Facilities Lease)—Page 4 9/7/2007 2:52 PM (c) Effectiveness of a Notice. Except as provided elsewhere in this Agreement, a Notice is effective only if the party giving the Notice has complied with Section 6(a) and 6(b) and if the Addressee has received the Notice. A Notice is deemed to have been received as follows: (i) if a Notice is delivered in person, or sent by Registered or Certified Mail, or nationally recognized overnight courtier, upon receipt as indicated by the date on the signed receipt; (ii) if a Notice is sent by facsimile, upon receipt by the party giving the Notice of an acknowledgement or transmission report generated by the machine from which the facsimile was sent indicating that the facsimile was sent in its entirety to the Addressee's facsimile number; and (iii) if the Addressee rejects or otherwise refuses to accept the Notice, or if the Notice cannot be delivered because of a change in address for which no Notice was given, then upon the rejection, refusal, or inability to deliver the Notice. In addition, if a Notice is sent by Facsimile, the party sending the Notice shall also send a confirmation copy of the Notice by one of the methods set forth in subsection (c)(i) above. (d) Delivery Time of Notice. Notwithstanding the foregoing, if any Notice is received after 5:00 p.m. on a business day where the Addressee is located, or on a day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the next business day where the Addressee is located. Each party's attorney is authorized to give any Notice pursuant to this Agreement on behalf of such attorney's client. 7. Miscellaneous. (a) Authoritv. City, Landlord and Lender represent and warrant to each other that they and the individuals signing below have the right, power and authority to execute this Agreement. (b) Counterparts. This Agreement may be executed in several counterparts, each of which when executed is an original, but all of which together shall constitute one instrument. (c) Invalidi . If any provisions of this Agreement shall be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not apply to or affect any other provisions hereof, but this Agreement shall be construed as if such invalidity, illegality or unenforceability did not exist. (d) Government Law. The laws of the State of Texas shall govern this Agreement and its validity, enforcement and interpretation. Non -Disturbance and Attomment Agreement (Parking Facilities Lease)—Page 5 9/7/2007 2:52 PM (e) Modifications. No modification, amendment, waiver or release of any provision of this Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by the party against whom the same is sought to be asserted. (f) Recordation. Any of City, Lender or Landlord may record this Agreement in the deed records of Lubbock County, Texas. (g) Successors and Assigns. This Agreement shall insure to the benefit and shall be binding upon the parties hereto and their respective successors and assigns and any Purchaser, and its heirs, personal representatives, successors and assigns; provided, however, that in the event of the assignment or transfer of the interest of Lender, all obligations and liabilities of Lender under this Agreement arising from or after the date of such assignment or transfer by Lender shall terminate as to the entity that is then lender, and thereupon all such obligations and liabilities shall be the responsibility of the party to whom Lender's interest is assigned or transferred. (Signature Pages on Subsequent Pages) Non -Disturbance and Attomment Agreement (Parking Facilities Lease)—Page 6 9/7/2007 2:52 PM IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. LENDER: PLAINSCAPITAL BANK, a Texas state bank By: Name: Steve Lewis Title: Senior Vice President STATE OF TEXAS § COUNTY OF Lu 66oc-k § BEFORE ME, the undersigned authority, on this day personally appeared skwe- LCU I S , SeN1rrs-de u t of PlainsCapital Bank, a Texas state bank, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said state bank. ""ember GIVEN under my hand and seal of office this day ofttgust, 2007. My Commission Expires: C)1 -13-O9 MAUREEN DEWEES + Notary Pudic, State of Texas My Commission Fires 1•13-2W9 Notary Public in and for the State of Texas Non -Disturbance and Attomment Agreement (Parking Facilities Lease) --Page 7 9/5/2007 9:54 AM CITY: CITY OF LUBBOCK, TEXAS By: i Name: David A. Mi ler Title: Mayor STATE OF TEXAS COUNTY OF L"6o BEFORE ME, the undersigned authority, on this day personally appeared `I2tri d Q.1110te-r MAN r of the City of Lubbock, Texas, known to me to be the person whose name is Aubscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said City. GIVEN under my hand and seal of office this 11 day of AAttgtiA, 2007. CELIA WEBB Noluy FWNG Stale of Texas E(S�ktj Coeonlition Exp res 0101.2010 My Commission Expires: 03-0c-a.ol L) Development Services Notary Public in and for the State of Texas APPROVED AS TO FORM: Linda L. Chamales, Senior Attorney Office Practice Section Non -Disturbance and Attomment Agreement (Parking Facilities Lease)—Page 8 9/5/2007 9:52 AM LANDLORD: 1859 MANAGEMENT PARTNERS, LP By: 1859 Management Partners GP, LLC By: Name: Title: STATE OF TEXAS COUNTY OF Q ( WS BE�RE ME, the undersigned authority, on this day personally appeared " i CK a n t tr 1859 Management Partners GP, LLC, the General Partner of 1859 Managemeht Partners, LP, a Texas limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said limited partnership. her GIVEN under m hand and seal of office this qday of 2007. DEBORALState RD . Notary PuTexas / �T My Comres�o— 1 My Commission Expires: Notary Public in and for the State of Texas �n Non -Disturbance and Attornment Agreement (Parking Facilities Lease)—Page 9 9/7/2007 5:11 PM Resolution No. 2007-80440 EXHIBIT "A" Exhibit "A"