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HomeMy WebLinkAbout2011-2421\codad\departments\legal\our documents\ordinances\ll\airport-nebrig collateral transfer.docx ORDINANCE NO. 2011-242 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO APPROVE A COLLATERAL TRANSFER OF LEASE AGREEMENT BETWEEN THE CITY OF DENTON AND NEBRIG PROPERTIES, LP TO POINTBANK; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on September 24, 1996 the City of Denton, Texas (hereinafter the "City") entered into an Airport Lease Agreement (hereinafter the "Agreement') between the City of Denton and Nebrig & Associates, Incorporated as authorized by Ordinance 96-216, and which Agreement was first amended on February 18, 1997 by Ordinance 97-050 and then was amended on October 5, 1999 by Ordinance 99-372, and which Agreement was approved for assignment to Nebrig Properties, L.P. on September 5, 2000 by Ordinance 2000-290; and WHEREAS, the City Council and Nebrig Properties, L.P. desire to further amend the Agreement by entering into a Collateral Transfer Of Lease Agreement with PointBank, a copy of which Collateral Transfer Of Lease Agreement is attached hereto and made a part hereof in its entirety; and WHEREAS, the City Council deems it in the public interest to enter into a Collateral Transfer Of Lease Agreement with PointBank for the purpose of authorizing a lien to secure a promissory note between Nebrig Properties, L.P. and PointBank; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to execute a Collateral Transfer Of Lease Agreement between the City of Denton, Texas and Nebrig Properties, L.P. to secure a lien on property referenced by the Agreement as described herein, which Collateral Transfer Of Lease Agreement is attached to and made a part of this Ordinance for all purposes. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. AND APPROVED this the 4f 9� � 2011. PASSED N � ,da yoam Q���1���L, ^ \\codad\departments\legal\our documents\ordinances\ll\airport-nebrig collateral transfer.docx ATTEST: JENNIFER WALTERS, CITY SECRETARY ar �r✓ �efa�c��n APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: COLLATERAL TRANSFER OF LEASE AGREEMENT THE STATE OF TEXAS COUNTY OF DENTON THAT, the undersigned, whose address is stated below, hereinafter called "Debtor" (whether one or more), for a value and sufficient consideration paid, the receipt of which is hereby acknowledged, hereby TRANSFERS, ASSIGNS AND CONVEYS unto POINTBANK whose address is P.O. Box 278, Pilot Point, Texas 76258, hereinafter called "Secured Parry" (whether one or more), all of Debtor's rights, titles, equities and interests in that certain Airport Lease Agreement dated September 18, 1996 by and between The City of Denton as Lessor, and Nebrig & Associates, Inc., a Texas corporation; subsequently assigned in Assignment and Assumption Agreement dated September 5, 2000 from Nebrig & Associates (Assignor) to Nebrig Properties, L.P., a Texas limit ed partnership (Assignee), to secure a lien on the following described property, to -wit: SEE ATTACHED EXHIBIT "A" MADE A PART HEREOF FOR ALL PURPOSES. Secured by a Deed of Trust dated October 31, 2011, executed by Nebrig Properties, L.P., a Texas limited partnership, securing a Note in the amount of $832,236.00, payable to PointBank. Said Deed of Trust recorded November 1 , 2011, under Clerk's Document Number .2011-104403 , Real Property Records, Denton . County, Texas. Together with the following Improvements: Five (5) corporate aircraft hangars/offices, sixteen (16) twin engine hangars, and twenty (20) single engine hangars located on the real property described in Exhibit A-1 attached to this statement, also referred to as being located at The Denton Airport . This collateral transfer is made to. secure the payment of that one certain promissory note dated October 31, 2011, in the original principal amount of $832,236,00, executed by Nebrig Properties, L.P., a Texas limited partnership, payable to the order of PointBank, Secured Party, hereinafter called the "NOTE", and upon fall payment of which NOTE this transfer shall be'null and void and the COLLATERAL, together with the DEED OF TRUST LIEN securing the same, shall, atthe expense of Debtor, be re -transferred, without warranty orrecourse, to Debtorby Secured Party. In the event of default in the payment of any installment, principal or interest, of the NOTE hereby secured, in accordance with the terms thereof, Secured Party may elect, Debtor hereby expresslywaiving notice, demand and presentment, to declare the entire indebtedness hereby secured immediately due and payable and Secured Party shall have the right to sell the COLLATERAL at Public Sale to the highest bidder for cash at the Courthouse door of the County of Secured Party's address hereinabove stated, after having given notice ofthe time, place and terms ofsuch Public Sale by posting a written or printed notice of said sale at the Courthouse door of said County at least ten days before the day of sale and after sending reasonable notice to Debtor and to such other person or persons legally entitled thereto under the Uniform Commerciia] Code of Texas, of the time and place of the Public Sale, and Secured Party shall transfer- to the Purchaser at such sale said COLLATERAL, and the DEED OF TRUST LIEN and all liens, rights, titles, equities and interests in and to the above described property securing the payment thereof, and the recitals in such transfer shall be prima facie evidence of the truth of the matters therein stated and all prerequisites to such sale required hereunder and under the laws ofthis State shall be presumed to have been performed. Theproceeds of the We shall be applied, first to the reasonable expenses of the sale and then toward the payment of the principal, interest and attorney's fees due and unpaid upon the NOTE hereby secured, rendering the balance, if any, and surplus, if any, to the person or persons legally entitled thereto under the Uniform Commercial Code of Texas, but'if there be any deficieucy, Debtor shall remain liable therefor. Secured Party shall have the right to purchase at such Public Sale, being the highest bidder therefor. On transfer of the DEED OF TRUST LIEN AND COLLATERALto Purchaser as above pro- vided, which transfer shall be absolute, Purchaser shall assume and be entitled to all rights; title, interest, duties and. obligations of the Beneficiary under the terms of the DEED OF TRUST AND COLLATERAL, and in the event of default thereon, Purchaser as Beneficiary, mayproceed with any remedy as provided in said DEED OF TRUST AND COLLATERAL. Secured Party, in addition' to the rights and remedies provided for in the preceding paragraphs, shall have all the rights and. remedies of a Secured Party under the Uniform Commercial Code of Texas and Secured Party shall be entitled to all such other rights and remedies as may now or hereafter exist at law or in equity for the collection of said indebtedness and the foreclosure ofthe Security Interest created hereby and the resort to any remedyprovided hereunder or provided by the Uniform Commercial Code of Texas, or by any other law of Texas, shall not prevent the concurrent employment of any other appropriate remedy or remedies. The requirement of reasonable notice to Debtor of the time and place of any Public Sale of the COLLATERAL, or of the time after which any Private Sale or any other intended disposition thereof is to be trade, shall be met ifsu6h notice is mailed, postage prepaid, to Debtor at the address of Debtor, at' least five days before the date of any Public Sale or at least five days before the time after which any Private Sale or other disposition is to be made. Secured Party may remedy any default, without waiving same, or may waive any default without waiving any prior or subsequent default. The Security Interest herein created shall not be affected byor affect any other security taken for the indebtedness hereby secured, or any part thereof, and any extensions may be made of the indebtedness without affecting the priority of this Security Interest or the validity thereof with reference to any third parry, and the'holder of said indebtedness shall not be limited by any election of remedies if it chooses to foreclose this Security Interest by suit. The right to sell under the temas hereof shall also exist cumulative with said suit and one method shall not bar the other, butboth may be exercised at the same or different times, nor shall one be a defense to the other. Debtor authorizes Secured Party; at Secured Party's option, to' dollect and receipt for any and all sums becoming due upon the COLLATERAL, such sums to be held by Secured Party without liability for interest thereon and applied toward the payment of the NOTE hereby secured as and when the same becomes payable, and Secured Partyshall have the full control ofthe COLLATERAL and the DEED OF TRUST LIEN securing the same until the note hereby secured is fully paid and shall have the further right to release the DEED OF TRUST LIEN securing the COLLATERALupon the full and final payment there of to Secured Party, but Secured Partyis under no obligation to make or enforce the collection of the COLLATERAL and the failure of Secured Party from any cause to make or enforce the collection thereof shall not in any way prejudice the right of Secured Party to thereafter make or enforce collection thereof or in any way affect the indebtedness to Secured Party hereby secured. In the event Secured Party exercises its option to collect and receipt for sums becoming due on the COLLATERAL, and the COLLATERAL'then is in default, Secured Party as Beneficiary of the DEED OF TRUST LIEN, pursuant to this Instmment, may proceed with anyright or remedy as provided in said DEED OF TRUST including the Request of Trustee named therein or Trustee's Successor or Substitute to sell the property described therein (and described above) as provided by said DEED OF TRUST and Section 51.002 of the Texas Property Code, as then amended and otherwise complying with applicable law. Proceeds from such sale, after deducting reasonable expenses of sale shall first be applied toward payment of the NOTE and any other obligation or debt then due Secured Party by Debtor and the remainder thereon, if any, shall bepaid to Debtor. Debtor shall remain liable for any deficiencies due on said NOTE. The recitals in any Trustee's Deed conveying said property shall be presumed to be true including the authority and rights of Secured Party as Beneficiarytherein. In the event SecuredParty does not exercise its option as stated in this paragraph and Debtor continues to collect and receipt for any and -all sums becoming due upon the COLLATERAL, Debtor may release the DEED OF TRUST LIEN upon the fail and final payment thereon or, request Trustee or Trustee's Successor of the DEED OF TRUST to sell the property as provided therein. . The pronouns used in this agreement are in the masculine gender but shall be conshued as feminine or neuter as occasion xnay require. "Secured Party" and "Debtor" as used in this agreement include, shall bind and shall inure to the benefit of the respective heirs, executors or administrators, successors, representatives, receivers, trustee and assigns of such parties. If there be more than one Debtor, their obligations shall be joint and several. The law governing this secured transaction shall be the U'nifornn Commercial Code as adopted. in Texas and other applicable laws of the State of Texas. All terms used herein which are, defined in the Uniform Commercial Code of Texas shall have the same meaning as in said Code. EXECUTED this 31st day of October, 2011. DEBTOR: NEBRIG PROPERTIES, L.P., A Texas limited partnership By: Drewcy Inc., Its General Partner By: Mike Nebrig, President DEBTOR'S ADDRESS.: 4801 John Carrell Road' Denton, Texas 76207 APPROVED: CIT4OFD TO EXAS .By: t APPROVED AS TO LEGAL FORM: City Attorney: By: THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on this 3L day of October, 2011, by Mike Nebrig, President of Drewry Inc., General Partner of Nebrig Properties, L.P., a Texas limited ^ partnership; on behalf of said limited partnership and corporation. I, KRIST HENDRICKS My Commission Expires XNoe.bli-, State of Texas 0F0 August 12, 2013 THE STATE OF TEXAS § COUNTY OF WVT-ON § This instrument was acknowledged before me on ibis day of.GZctebe , 2011, by 7q,e& of The City of Denton, Texas, the Landlord, on behalf of said municipality. eWR'IW,,,, JANE E. RICHARDSON "= Notary Public, State of Texas My Commission Expires June 27, 2013 THE STATE OF TEXAS § COUNTY OF § This instrument was acknowlele Attorn� e Cijy of Denton, Texas, WIN Nola► p 101AftC— After Notdry Public, State of Texas before me on this _a day of October, 2011, by of the office of the City .half of 6id Co usel. Notary Public, State of Texas Prepared in the Office of. Minor & Jester P. 0. Box 280 Denton, Texas 76202 Exhibit A On September 24, 1996 the City of Denton, Texas (hereinafter the "City") entered into an Airport Lease Agreement (hereinafter the "Agreement") between the City of Denton and Nebrig & Associates, Incorporated as authorized by Ordinance 96-216, and which Agreement was first amended on February 18, 1997 by Ordinance 97-050 and then was amended on October 5, 1999 by Ordinance 99-372, and, which Agreement was approved for assignment to Nebrig Properties, L.P. on September 5, 2000 by Ordinance 2000-290. c• N 0,?6'Pt"� 2I8 76' OD O? o .a W Cf! C r � n w ui 8 OI°23'50"W 214 05' N 01023'60"E 260 55' z Exhibit A —1 Page 1 of 3 hTTACHMEIQT A u� ! o W 1 �= N ,m J 01 i � 1 N 010FWS6"E 23510, 1 N � Nay in z 1 � rn 0 g� m rn fA K ' yr o 0 / i 1 o i y 0 5000,1 1 50 00' v z 00 120tn 00 N 01023'510>"E cg N wQ v mo Q 0 P. m b .Q 3 011123'50"W 240 65' S 01023'5q"W 365 (M I Exhibit A —1 Page 2 of 3. 3 95 ACRES PARCEL-2 All that certain lot tract or parcel of land 970 In the City of Denton Dit Denton County Texas and being part survey,uated In the WILLIAM NEIL or Lai •tBloAbstract Number 1 of Southeast 10 thereof recoAirport lion ydedan addition to the Citin Cabinet G Page 296 of the Platt Records of Denton Counof Denton Denton County Texas ty Texas Itheplat subject tract being more particularly described as follows COMMENCING at the Northweel Corner of sold Addition at a found concrete monument THENCE South 08 Degrees 36 Minutes 21 Seconds Weal with the West line of sold Addition a distance of 916 70 feet to a paint for corner THENCV- South Degrees 38 distance of 452 y8 feet to he POINT nutes 10 Seconds tleaving NT OF SEGINNING forthe Norl Northwest cornerofof theof tract beinng described herein at a % Inch Iron rod found In the South line or a Access Drainage and Utility Easement THENCE $oath 86 Degrees 3B Minutes 10 Seconds East with the South line of said Easement a distance of 870 86 feet to a % inch capped kon rod set for corner some being In the West line of a eo foot Access, Drainage and Utility Easement THENCE South 01 Degrees 23 Minutes 50 Seconds West with the West line of said Easement a distance of 355 00 feel to a % Inch capped Iron rod set i THENCE North 88 Degrees 38 Minutes 10 Seconds West leaving the West line of sold Easement a distance of 120 00 feel to a h Inch capped Iron rod eat THENCE North 01 Degrees 23 Minutes 60 Seconds East a dislonae of 120 00 feel to a'% inch capped Iron rod eat THENCE North 68 Degrees 36 Minutes 10 Seconds West a distance of 650 86 teal to a %2 inch capped iron rod set for the southwest corner of the herein described tract from which a % Inch Iron rod found bears South 01 Degrees 23 Minutes 68 Seconds West a distance of 34 87 feet THENCE North 01 Degrees 23 Minutes 6o Seconds East a distance of 236 10 fool to the PLACE OF BEGINNING and enclosing a 95 acres of land more or lees J E THOMPSON R P fl4867 Data Exhibit A —1 Page 3 of 3 132 ACRES PARCEL 3A All that certain lot tract or parcel of $slid allualed In the WILLIAM NEIL Survey, Abstract Number 070 In the City of Denton Lot I east Airport Addition an ddl0on toDonlon l) o ci y of being Donlon Denton County f Block unty Texas og o 000rdinoIl+at plat thereof trecordCabinet GogPlat Records of Denton County Texas the hereofbeing m RtPy described a followsCOMMENCING at [lie Norlhwest Corner of sold Addition at a found ooncrete monument, THENCE South 08 0e9ree8 36 Minutes 21 Seconds West with (he West line of sold Addltlon a distance of 916 70 feet to a point for corner THENCE South 88 Degrees 38 Minutes 10 Seconds East leaving the West One of sold Addition a dialance of 226 80 feel to 0 point for corner in the South tine of a A000ss Drainage and Utility Easement THENCE; South 08 Degrees 38 Minutes 21 Seconds West leaving the South line of said Easement a distance of 337 78 feel to the POINT OF BEGINNING for the Northwest corner of the hareln described tract THENCE South 80 Degrees 36 Minutes 10 seconds East a distance of 264 44 feel to a point for 1 t corner r THENCS South 01 Degrees 23 Minutes 50 Seconds West a distance of 214 06 fee(lo a point for corner in the North One of a 60 fool Taxiway Drainage, and Utility Easement THENCE North 88 Degrees 38 Mlnulea to Seconds Wool with the North line of sold Easement a distance of 281 88 reel to a point for corner In the East line of a Variable width Taxiway Drainage, and Utnl(y Easement THENCE North 08 Degrees 36 Minutes 21 Seconds East a distance of 216 76 feel to the PLACE OF BEGINNING end enclosing 132 acres of land more or less 4 18 ACRES PARCEL 3B All lilract 070hnttherCity of Denton Denton County llTaxes ated land being part Survey,n the WILLIANEIII. cetain lot tract parcel of land of Lot 1Block leNumber of Southeast Airport Addition an addition to the City of Denton Denton Courtly, Texas according to the plat thereof recorded In Cabinet 0 page 296 of the Pial Records of Donlon County Texas the subject treat being more particularly described as follows COMMENCING at the Northwest corner of said Addition at a found concrete monument THENCE South 08 Degrees 38 Minutes 21 Seconds West with the West line of sold Addition a distance of 915 70 feet to a point for corner THENCthe l line Of Bald d1e enceEof 221h 88 8 80 eeatgto aapoint for coiner In (ho South line of lnulos 10 Seconds 58011813YIaAccess 88Drainage and Utility n a Easement THENCE South 08 Degrees 38 Minutes 21 Seconds West leaving the South One of sold Easement a distance of 337 70 fact to a point for corner THENCE South 86 78 OF BEGINNING some being the Northwest rees 36 Minutes 10 Seconds iast o distance ofthe herein described 4eat to the POINT tract THENCE South 88 Degrees 38 Minutes 10 Seconds Fast a distance of 664 44feel to a point for corner THENCE South 01 Degrees 23 Mlnules 50 Seconds Weal a distance of 10 80 feet to a A Inoh capped iron rod act l n capped Ironorold set Degrees 36 West lineuof a 60 foot AccessasDre Drainage distance and Utility / Be UIIIy 0 feel to a Easement V.inch THENCE Noflh 01 Degrees 23 Minutes 60 Seconds avast with the West line of sold Easement a distance of 248 65 to the North Eno of a 50 foot Taxiway Drainage and Utility Easement, THENCE North 88 Degrees a6 Minutes 10 Seconds West with Ilia North One of sold 60 loot Easement a dhionce of 804 44 to a point for corner THENCE North 01 Degrees 23 Minutes 60 Seconds East leaving the North line of sold 50 fool Easement a distance of 268 55 feat to the PLACE Or 13POINNING and enclosing 4 16 acres of land more or less J E T dMp&ON R P L ff4867 Data