HomeMy WebLinkAboutContract 34404AFTER RECORDING. RETURN TO:
GE Commercial Finance Business
Property Corporation
Middle Market Risk
10900 NE 4th Street, Suite 500
Bellevue, Washington 98004
Attn: Kathy Sandmel
Loan No.
THIS INSTRUMENT PREPARED BY:
Jenkens & Gilchrist,
a professional corporation
George C. Dunlap, Jr., Esq.
1445 Ross Avenue, Suite 3700
Dallas, Texas 75202
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[space above reserved for recorder's use only]
AGREEMENT REGARDING GROUND LEASE
THIS AGREEMENT REGARDING GROUND LEASE (t�is "Agreemer�") is made
and executed to be effective as of the ��_ day of ;, f l�� i A , 2006, by THE
CITY OF FORT WORTH, a municipal corporation organized under the laws of the State of
Texas ("Landlord"), in favor of GE COMIVIERCIAL FINANCE BUSINESS PROPERTY
CORPORATION, a Delaware corporation ("Lender");
RECITALS:
A. Landlord is the owner of the real property located in Tarrant County, Texas,
which is more particularly described on Exhibit A attached to and made a part of this Agreement
for all purposes, and all rights, privileges and appurtenances thereto (collectively, the
"Property").
B. Pursuant to a certain Fort Worth Meacham International Airport Improved and
Unimproved Ground Lease Agreement with Mandatory Improvements (the "Lease") dated
September 26, 2003, Landlord leased the Property to Meacham Development, LLC, a
limited liability company ("Tenant").
C. Tenant has requested that Lender advance a loan (the "Loan") to Tenant to be
secured, in part, by the lien and provisions of a certain Commercial Leasehold Deed of Trust (the
"Deed of Trust") covering all of Tenant's right, title and interest under the Le�se and certain
other assets and rights of Tenant.
Agreement
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D. The collateral covered by the Deed of Trust is collectively called the 'Mortgaged
Property. The Deed of Trust and all of the other documents and instruments which evidence or
secure the Loan are sometimes collectively called the "Loan Documents."
E. As a condition to Lender's agreement to advance the Loan to Tenant, and as a
material mducement to Lender to do so, Lender is requiring that Tenant obtain this Agreement
for the benefit of Lender.
AGREEMEN T:
NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, Landlord hereby agrees as follows:
1. Default bv Tenant. In the event that Landlord is required by the Lease to provide
any kind of written notice to Tenant with regard to the Property, inc luding notice of breach or
default by Tenant, Landlord shall also provide a copy of such written notice to Lender. Landlord
agrees that (a) Lender may perform any of the obligations or requirements imposed on Tenant by
the Lease in order to avoid a breach or default under the Lease by Tenant, and (b) Landlord will
accept Lender's performance the same as if Tenant had performed such obligations or
requirements.
Landlord agrees and covenants that it will not exercise any rights it may have under the
Lease to cancel or terminate the Lease or to force surrender or take possession of all or part of
the Property unless it first has provided Lender with written not'ice of its intent to exercise any
such right. Lender shall have ten (10) calendar days from the date it receives any such notice to
cure any monetary default under the Lease and thirty (30) calendar days from the date it receives
such notice to cure any other default under the Lease to Landlord's reasonable satisfaction in
order to avoid such cancellation, termination or surrender, provided; however, that if Lender, in
good faith and after diligent and continuous efforts to remedy any norrmonetary default under
the Lease, cannot cure such default within thiriy (30) calendar days, it shall notify Landlord in
writing and Landlord and Lender shall negotiate in good faith a reasonable amount of additional
time to cure any such default.
2. Acquisition of Property by Lender. If Lender shall become the owner of the
Mortgaged Property as a result of a foreclosure of the Deed of Trust, or if the Mortgaged
Property shall be sold by reason of a foreclosure of the Deed of Trust to any third party, or if the
Mortgaged Property shall be transferred by deed-in lieu of foreclosure (any such foreclosure or
deed-in-lieu of foreclosure being collectively called a"Foreclosure"), then the Lease shall, at the
option of Lender or the third party who acquires the Mortgaged Property at a Foreclosure
(Lender and any such third party being collectively called the "Successor Owner"), continue on
the same terms and conditions as a direct lease between Landlord and the Successor Owner.
Notwithstanding the foregoing, if any Successor Owner other than Lender acquires the
Mortgaged Property, such Successor Owner shall be subject to Landlord's written approval,
which approval shall not be unreasonably withheld and shall be based upon Landlorcl's then-
current criteria for airport hangar tenants.
2 Agreement Regarding �d�eas
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3. No Liability. In the event that the Successor Owner acquires the Mortgaged
Property, the Successor Owner shall not be:
(a) liable or responsible for any act or omission of Tenant;
(b) subject to any claims or defenses which Landlord might have against
Tenant;
(c) liable or responsible for any default by Tenant under the Lease or
obligated to cure any prior default by Tenant under the Lease;
(d) liable or responsible for any agreement of Tenant to indemnify or defend
Landlord, or to reimburse Landlord for any sums expended by Landlord;
(e) bound by any amendment to the Lease not approved by Lender in writing;
or
(fl required to occupy or operate in, or to cause tenants to occupy or operate
in, the Mortgaged Property.
4. Representations by Landlord. Landlord hereby represents and warrants the
following to Lender:
(a) The Lease has not been modified, altered or amended, and the Lease is in
full farce and effect;
(b) Tenant is not in default of any of its obligations under the Lease and no
events have occurred which, with notice, the passage of time or both,
would constitute a default in any of Tenant's obligations under the Lease;
(c) Tenant has completed the work described in Sections 6.4, 8.1 and 16.2 of
the Lease in accordance with the terms of the Lease;
(d) Landlord has no knowledge of any prior assignment, hypothecation or
pledge of Tenant's interest in the Lease;
(e) All agreements and understandings between Landlord and Tenant relating
to the Property are set forth in the Lease;
(fl All of the obligations under the Lease regarding the construction of the
improvements on the Property have been satisfied, and all such
improvements have been completed in accordance with all of the
requirements of the Lease, all applicable laws and ordinances and any
restrictive covenants encumbering the Property;
(g) The Property is used, operated and maintained in accordance with the
terms of the Lease and any restrictive co�enants encumbering the
Property;
3 Agreement Regarding Ground Lease
DALLAS4 781491v2 12416-02722
(h) Landlord has not mortgaged or otherwise encumbered its interest in the
Property;
(i) Landlord has no current right to terminate the Lease based on any acts or
omissions of Tenant as of the date of this Agreement; and
(j) Landlord has all requisite power and authority to execute and deliver this
Agreement.
5. Covenants and Agreements of Landlord. Landlord hereby covenants to and
agrees with and for the benefit of Lender as follows:
(a) The Lease shall not be amended, modified or terminated after the date of
this Agreement without Lender's prior written consent;
(b) The Successor Owner shall have the right to renew the term of the Lease
pursuant to Section 3.2 of the Lease;
(c) Landlord shall not mortgage or encumber the Propei-ty or any of its
interests therein without Lender's prior written consent, except for
mortgages and other encumbrances which are subject and subordinate to
the Deed of Trust;
(d) In the event of any termination of the Lease (including, without limitation,
any termination pursuant to the Federal Bank1-uptcy Code), (i) Lender
shall have the right to request that Landlord enter into a new lease
agreement with Lender or its designee within one hundred eighty (180)
days after the date on which Lender receives written notice of the
termination of the Lease, and (ii) Landlord and Lender (or its designee)
shall enter into such new lease agreement on the same terms and
conditions as the Lease, as modified by this Agreement, subject to
approval of the City Council, within thirty (30) days after Landlord
receives Lender's request;
(e) In the event of any fire or other casualty or any talcing of the Property (or
any part thereo� by eminent domain (or sale in lieu thereo� which occurs
while the Loan is outstanding, all insurance or condemnation proceeds
shall be paid to Lender and applied by Lender to repair the damage to the
Property as long as (i) the Lease remains in full force and effect, and (ii)
any sublease of the Property remains in full force and effect;
(� In the event the Successor Owner acquires the Mortgaged Property, the
obligations of the Successor Owner under the Lease shall be nonrecourse,
and Landlord shall loolc solely to the interest of the Successor Owner in
the Mortgaged Property for the recovery of any judgment against the
Successor Owner, and Landlord hereby covenants and agrees not to bring
any action or suit seeking to impose liability on the Successor Owner
beyond its interest in the Mortgaged Property; and
4 Agreement Regarding Ground Lease
DALLAS4 781491v2 12416-02722
6. Waiver of Liens. Landlord hereby waives and relinquishes in favor of Lender, its
successars and assigns, for the term of the Loan, all rights, claims and demands of every kind
against the Mortgaged Property, whether contractual or statutory, including but not limited to the
Landlord's Lien described in Section 19.2 of the Lease.
7. Notice of Leasehold Deed of Trust. This Agreement shall constitute notice to
Landlord of the Deed of Trust. Lender's address for notice is as set forth below.
8. Notices. All notices be given under this Agreement (and under the Lease to
Lender) shall be in writing and shall be deemed to have been given on the earlier of (a) the date
of receipt by the addressee or (b) three (3) business days after deposit in the United States mail,
registered or certiffed, return receipt requested, first class postage prepaid, addressed to Landlord
ar Lender as follows;
Landlord: City of Fort Worth
Aviation Department
4201 N. Main Street, Suite 200
Fort Worth, Texas 76106
Lender: GE Commercial Finance Business Property Corporation
10900 NE 4th Street, Suite 500
Bellevue, Washington 98004
Attn: Middle Market Risk
The address to which any notice or other writing must be sent to either party to this Agreement
may be changed upon written notice given by such party as provided above.
9. Conflict. In the event of any conflict between the terms of this Agreement and
any of the terms of the Lease, the terms of this Agreement shall govern and control.
10. Further Acts. Landlord agrees to execute and deliver to Lender, from time to
time, such certifications as Lender may request with respect to the performance by Landlord and
Tenant of their respective obligations under the Lease. In addition, Landlord agrees to execute
and deliver to Lender from time to time such other documents and instruments as may be
requested in order to effectuate the terms of this Agreement.
11. Illegal or Invalid Provisions. If any term or provision of this Agreement is held to
be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining
terms and provisions of this Agreement shall not be affected thereby, and in lieu of such illegal,
invalid or unenforceable term or provision, there shall be added automatically to this Agreement
a legal, valid and enforceable term or provision as similar as possible to the term or provision
declared illegal, invalid, and unenforceable.
12. Governin� Law. This Agreement and all of the transactions contemplated herein
shall be governed by and construed in accordance with the laws of the State of Texas.
DALLAS4 781491v2 12416-02722
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13. Captions. The captions herein are inserted only for convenience of reference and
in no way define, limit, or describe the scope or intent of this Agreement or any particular
paragraph or section of this Agreement, or the proper construction of this Agreement.
14. Beneft to Lender. Landlord acknowledges that Lender is entitled to the benefit of
all provisions of the Lease which are applicable to a"Leasehold Deed of Trust."
15. Successors and Assigns. This Agreement shall inure to the beneiit of and be
binding upon the parties to this Agreement and their respective heirs, successors and assigns.
EXECUTED, ACKNOWLEDGED AND DELIVERED on the date first above written.
LANDLORD :
THE CITY OF FORT WORTH,
a municipal corporation organized under the laws of
the S te'b ��s\ '
;
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By:
� t.
Print: Marc A O �
Its: As�is�nt Citv Man��er
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AGREED TO AND ACCEPTED:
TENANT:
MEACHAM DEVELOPMENT, LLC,
a � �) limited liability company
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By: •, ` `� ,'
Robert M. McMurrey,
Manager `
DALLAS4 781491v2 12416-02722
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STATE OF TEXAS
COUNTY OF T1IRRANT
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared �/Z���.2c�� l._�' G� � , of THE CITY OF FORTH
WORTH, known to me to be the person whose name is subscribed on the foregoing instrument,
and acknowledged to me that the same was the act of THE CITY OF FORTH WORTH, and
that he executed the same as the act of THE CITY OF FORTH WORTH, for the purposes and
consideration therein expressed and in the capacity therein stated.
,C���.c��., ti �.�<<:, u
GIVEN LTNDER MY HAND AND SEAL OF OFFICE this C�'L�� day of S�pter�ber,
2006
;'ti�`Y�P��:�,•; ROSELLABARNES ��—.L�C�_,, �jCfi'7:Lc.�' ;-_
= =q .
s*; *= MY CO��h 30N� IRES Notary Public in and for the
"'''f,4; ; �` State of % .�; -��i��
Printed Name of Notary Public:
/i'�> > L i/ f� ��/: ,�i1C'- t�
My Commission Expires:
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8 Agreement Regarding Ground Lease
DALLAS4 781491v2 12416-02722
STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Te�s,
on this day personally appeared Robert M. McMurrey, Manager of MEACHAM
DEVELOPMENT, LLC, a%�XnS limited liability company, known to me to be the
person whose name is subscribed on the foregoing instrument, and acknowledged to me that the
same was the act of MEACHAM DEVELOPMENT, LLC, a�F �� limited liability
company, and that he executed the same as the act of MEACHAM DEVELOPMENT, LLC, a
%��A s limited liability company, for the purposes and consideration therein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ���� day of September,
2006 �
�",
���.G�J,Ce, �` - ���G�Di�
Notary Public in and for the
State of %X� S
Printed Name of Nota� Public:
��i < / �� /f % • %% lc%�N�✓
My Commission Expires:
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 9/19/2006
DATE: Tuesday, September 19, 2006
LOG NAME: 55MEACHAM DEV REFERENCE NO.: **C-21697
SUBJECT:
Authorization to Execute a Written Consent to Deed of Trust Lien by Meacham Development, LLC in
Favor of GE Commercial Finance Business Property Corporation for Lease Sites 5-N, 6-N, 7-N, 8-N,
9-N and 10-N at Fort Worth Meacham International Airport
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a written Consent to Deed of
Trust Lien by Meacham Development, LLC in favor of GE Commercial Finance Business Property
Corporation for Lease Sites 5-N, 6-N, 7-N, 8-N, 9-N and 10-N at Fort Worth Meacham International Airport.
DISCUSSION:
On June 10, 2003, (M&C L-13578) City Council approved execution of an improved and unimproved ground
lease with mandatory improvements with Meacham Development, LLC for a development project at Fort
Worth Meacham International Airport. Meacham Development, LLC, managed by Robert M. McMurrey,
currently leases Lease Sites 5-N, 6-N, 7-N, 8-N, 9-N and 10-N at Fort Worth Meacham Airport pursuant to
City Secretary Contract (CSC) No. 29135.
On April 5, 2005, (M&C C-20635) City Council approved execution of a Deed of Trust Lien by Meacham
Development, LLC in favor of TexasBank for long-term financing of Meacham Development's leasehold for
Hangars 5-N through 10-N at Fort Worth Meacham International Airport.
Meacham Development, LLC has now secured long-term financing with GE Commercial Finance Business
Property Corporation and has requested the execution of a new Deed of Trust. Accordingly, Meacham
Development, LLC has requested the City's consent to execution of a Deed of Trust Lien on the premises in
order for the Bank to secure his loan. The Deed of Trust Lien will grant the Bank the right to operate as
Lessee or to secure another tenant in place of Meacham Development, LLC, if approved by the City
Council, in the event that Meacham Development, LLC defaults on the loan or their lease with the City of
Fort Worth. The Lease Agreement prohibits Meacham Development, LLC or Robert McMurrey from making
any assignment of the Lease or causing any lien to be made on improvements constructed on the Leased
Premises without City Council approval. This type of transaction is routine for large airport tenants and City
staff has no objection to Meacham Development's request.
Fort Worth Meacham International Airport is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 1 /3 0/2007
TO Fund/Account/Centers
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
FROM Fund/Account/Centers
Marc Ott (8476)
Mike Feeley (871-5403)
Mike Feeley (871-5403)
Page 2 of 2
http://www.cfwnet.org/council�acket/Reports/mc�rint. asp 1 /30/2007