HomeMy WebLinkAboutResolution - 2007-R0441 - Consent To Leasehold Mortgage Agreement - Plainscapital Bank - 1859 MP - 09/13/2007Resolution No. 2007—RO441
September 13, 2007
Item No. 6.14
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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
Mortgage Agreement with PlainsCapital Bank with regard to 1859 Management Partners,
L.P. 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 13th day of September -12007.
DAVID A. MILLER, MAYOR
ATTEST:
Reba ca Garza, City Secretary
APPR VE S O CONTENT:
Rob Allis . tant ty Manager
Development Services
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney
Office Practice Section
Lc: CityAtt/Linda/Res-Consent to Leasehold Mortgage
September 5, 2007
Resolution No. 2007—RO441
CONSENT TO LEASEHOLD MORTGAGE
THIS CONSENT TO LEASEHOLD MORTGAGE (this "AgreemenY') is dated as of SEPTEMBER
13. 2007, between the CITY OF LUBBOCK, TEXAS, a political subdivision of the State of Texas in Lubbock
County, Texas ("Landlord'), and PLAINSCAPITAL BANK, a Texas state bank ("Lender").
RECITALS
WHEREAS, Landlord and 1859 MANAGEMENT PARTNERS, LP, a Texas limited partnership
("Tenant'), executed that certain CITY FACILITIES LEASE AGREEMENT dated as of even date herewith, a
copy of which is attached hereto as Exhibit A (together with any and all extensions, renewals, modifications, or
replacements thereof, the "Lease") with respect to the real property, improvements, and other property described
therein (collectively, the "Leased Premises"); and
WHEREAS, pursuant to that certain LOAN AGREEMENT, dated as of JULY 31, 2007, Lender has
agreed to advance certain funds (the "Loan") to Tenant to be secured by, among other things the liens granted by:
(a) that certain DEED OF TRUST AND SECURITY AGREEMENT AND UCC FINANCING STATEMENT
FOR FIXTURE FILING dated as of JULY 31, 2007 (the "Mo a e'), (b) that certain COLLATERAL
ASSIGNMENT OF LEASE, dated as of even date herewith (the "AssittnmenY'), and (c) such other security
agreements, financing statements and assignments as Lender has required (the Mortgage, Assignment, and all other
such security instruments are collectively referred to herein as the "Collateral Documents") constituting a first
priority lien against Tenant's leasehold interest in the Leased Premises; and
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Landlord and Lender agree as follows:
1. Mortem . Subject to the terms and conditions contained in this Agreement, Landlord hereby
consents to the Mortgage and the Assignment. Landlord's consent contained herein shall not waive any of its rights
as to any subsequent mortgage of Tenant's leasehold interest, assignment, sublease or other transfer. Lender
acknowledges and agrees that Landlord shall have no obligation or liability under the terms of the Mortgage and/or
the Assignment. Additionally, except as expressly set forth in this Section 1. Landlord shall have no obligation to
give any notices under the Lease except to Tenant (and only to the extent required under the Lease) and shall have
no obligation to deal with any party other than Tenant with respect to the Lease or the Leased Premises, other than
as expressly set forth herein. For so long as such Mortgage and/or the Assignment shall remain unsatisfied of record
or until written notice of satisfaction is given by the holder of the Mortgage and/or the Assignment to Landlord (or
until such sooner termination or expiration of the Lease, if applicable), the following provisions shall apply:
(a) Landlord shall not cancel or terminate the Lease, or accept a surrender of all or part of
the Leased Premises by Tenant, without first giving Lender at least ONE HUNDRED EIGHTY (180)
days prior written notice of the effective date of such cancellation, termination or acceptance of surrender.
(b) Landlord shall, upon giving Tenant any notice of default under the Lease, concurrently
send a copy of such default notice to Lender. Tenant agrees that Landlord's failure to deliver such notice to
Lender shall not constitute a default or breach by Landlord under the Lease; however, Landlord may not
undertake any action to terminate the Lease in connection with the default notice given to Tenant unless
and until such copy of the default notice has been given to Lender. Each notice of default given by
Landlord shall specify the default claimed by Landlord. Notices shall be sent to the address of Lender
provided in this Agreement; and such notices shall be given, and shall be deemed effective, in accordance
with the provisions of the Lease. Any change of address shall be made in accordance with the provisions
of the Lease.
(c) In the event of any default by Tenant under the Lease, Lender shall have the right but not
the obligation, to remedy (or cause to be remedied) the default set forth in Landlord's notice of default.
Lender shall have the same period of time as Tenant has under the Lease to effect such remedy of the
default; and Landlord shall accept such timely performance by Lender as if the same had been rendered by
Tenant.
CONSENT TO LEASEHOLD MORTGAGE — PAGE 1
PLAINSCAPITAL BANK — 1859 MANAGEMENT PARTNERS, LP
(d) Landlord hereby consents to:
(i) Lender's foreclosure of the Mortgage and/or the Assignment (by Lender or any
affiliate of Lender, or by a nominee or designee of Lender); and
(ii) any conveyance of Tenant's leasehold interest under the Lease and the Leased
Premises by Tenant to Lender or any affiliate of Lender or to any nominee or designee of Lender
by virtue of or in lieu of foreclosure or other appropriate proceedings.
2. Attornment. If the interests of Tenant in the Leased Premises are owned by Lender by reason of
any deed -in -lieu of foreclosure, judicial foreclosure, sale pursuant to any power of sale or other proceeding brought
by it or by any other manner, including, but not limited to, Lender's exercise of its rights under the Mortgage and/or
the Assignment, and Lender succeeds to the interest of Tenant under the Lease, Lender shall be bound to Landlord
under all of the terms, covenants and conditions of such Lease for the balance of the term thereof remaining and any
extension thereof duly exercised by Tenant with the same force and effect as if Lender were the tenant under such
Lease; and Lender does hereby attorn to Landlord, as its landlord, said attomment to be effective and self -operative,
without the execution of any further instruments on the part of any of the parties hereto, immediately upon Lender's
succeeding to the interest of Tenant under the Lease. The respective rights and obligations of Landlord and Lender
upon such attornment, to the extent of the then remaining balance of the term of the Lease, shall be and are the same
as now set forth therein, it being the intention of the parties hereto for the purpose of this Section 2 to incorporate the
Lease in this Agreement by reference, with the same force and effect as if set forth in full herein.
3. Recoanition. If the Lease is then in full force and effect and Tenant is not then in default beyond
applicable grace and/or cure periods under such Lease (subject to Lender's right to cure any defaults pursuant to
Section 1 hereof), Landlord will accept the attomment of Lender thereafter so long as no default by Lender exists
under such Lease. If at, or subsequent to, the time that Lender shall acquire, in whatever manner, title to Tenant's
leasehold estate in the Leased Premises or from time to time thereafter, any default exists or occurs under the Lease,
then Landlord may exercise or enforce any and all rights, privileges, remedies and recourses which it may have
against Tenant or Lender under or pursuant to such Lease, this Agreement, at law or in equity.
4. Notices. All notices and other communications given pursuant to this Agreement shall be in
writing and shall be, (a) mailed by fast class, United States Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address listed below, (b) hand delivered to the intended address,
or (c) sent by facsimile transmission followed by a confirmatory letter. Notice sent by certified mail, postage
prepaid, shall be effective THREE (3) business days after being deposited in the United States Mail; all other
notices shall be effective upon delivery to the address of the addressee. The parties hereto may change their
addresses by giving notice thereof to the other in conformity with this provision.
Landlord: CITY MANAGER
CITY OF LUBBOCK
P.O. Box 2000
Lubbock, Texas 79457
Attention: Rob Allison, Assistant City Manager
Facsimile No. (806) 775-2051
RM a copy to. CITY ATTORNEY
CITY OF LUBBOCK
P.O. Box 2000
Lubbock, Texas 79457
Attention: Linda Chamales
Facsimile No. (806) 775-3307
Larder: PLAINSCAPITAL BANK
CONSENT TO LEASEHOLD MORTGAGE — PAGE 2
PLAINSCAPITAL BANK —1859 MANAGEMENT PARTNERS, LP
5010 University
Lubbock, TX 79413
Attention: Steve Lewis
Facsimile No. (806) 908-8099
W th a copy to. GARDERE WYNNE SEWELL LLP
1601 Elm Street, Suite 3000
Dallas, TX 752014761
Attention: Steven S. Camp
Facsimile No. (214) 9994354
5. Termination. This Agreement shall terminate upon the earlier of (a) the payment and
performance in full of Tenant's obligations to Lender or (b) the date of recording in the applicable records of
Lender's written release of the liens and security interests created by the Mortgage and the Assignment.
6. Binding EffeeU Governing Law. This Agreement may not be modified orally or in any manner
other than by a written agreement signed by the parties hereto. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns. This Agreement shall be governed by the laws of the
state in which the Leased Premises are located.
7. Counterpart. This Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which shall constitute one document.
8. Final Agreement. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT
AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN OR ORAL AGREEMENTS AMONG
THE PARTIES.
REMAINDER OFPAGELEFTINTENTIONALLYBLAAW
CONSENT TO LEASEHOLD MORTGAGE — PAGE 3
PLAINSCAPITAL BANK — 1859 MANAGEMENT PARTNERS, LP
LANDLORD: -
ATTEST:
RebeGarza, City Secretary
c a
APPRO\ jED AS TO ONTENT:
Rob Allisc� , is ntI ager,
Development Services
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney
Office Practice Section
/IOWA
CITY OF LUBBOCK, TEJ !�
By:
�d
DAVID A. MlfLER, Mayor
PLAINSC BA
�
By:
STEVE LEWIS, Senior Vice President
CONSENT TO LEASEHOLD MORTGAGE — PAGE 4
PLAINSCAPITAL BANK —1859 MANAGEMENT PARTNERS, LP